Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2023·05·08 COURT FILE No.: Peterborough 21-0181
BETWEEN:
HIS MAJESTY THE KING
— AND —
CIARA JENKS
Before: Justice S.W. Konyer
Heard on: May 2, 2023 Reasons for Judgment released on: May 8, 2023
Counsel: Sam Humphrey ..................................................................................... counsel for the Crown Christopher Avery ..................................................... counsel for the defendant Ciara Jenks
KONYER J.:
[1] In R. v. Jordan, 2016 SCC 27 the Supreme Court of Canada sent a strong message to all justice system participants – Crown, defence and the court – that the culture of complacency which has long plagued the criminal justice system needs to change. As the same court said in a later case, R. v. Thanabalasingham, 2020 SCC 18, at para. 9: “Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, "anything goes" culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion.”
[2] Unfortunately, the case of Ciara Jenks represents a failure by all participants in the criminal justice system, including the court, to heed the message from Jordan. This case demonstrates that the culture of complacency has not been eradicated, and that much work remains. As a result of the unreasonable delay in this case, I am compelled to the conclusion that the defendant’s right to be tried within a reasonable period, as guaranteed by s.11(b) of the Canadian Charter of Rights and Freedoms has been infringed.
[3] The defendant was charged with operating a conveyance while her ability to do so was impaired by a drug by way of an Information sworn on June 12, 2021. She was given a first appearance date of July 7, 2021. She retained counsel immediately after being charged, and counsel requested disclosure in her case by way of a letter sent via email on June 14, 2021. This letter included a request for “all disclosure pertaining to my client’s matter” and a particularized list of 11 items which included booking videos, cell videos, in car camera videos, body camera videos, breath test videos and “any other videos of my client in possession of the appropriate police service”. The letter goes on to say “pursuant to Stinchcombe I must be in possession of all the above information prior to setting any Crown pre-trial. I am not able to take positions or get instructions until I am in possession of all potentially relevant information and material.”
[4] At the first appearance on July 7, the defence indicated that an enhanced designation had been filed, and requested an adjournment of the matter until September 29. The enhanced designation is a process that allows retained counsel to obtain a 12 week adjournment of matters on the first appearance in order to complete case management functions. According to the Ontario Court of Justice Enhanced Designation Practice Direction [1] governing their use, “the Enhanced Designation requires counsel – both Crown and defence – to take meaningful steps to move cases forward during the intake phase of the case. Rather than granting a series of short-term adjournments to confirm completion of interim steps, the Enhanced Designation establishes a standard, 12-week adjournment during which Crown and defence are expected to take the necessary steps toward completion of the intake phase of the case.” It goes on to say that “if the parties encounter a problem with moving the case forward during the intake phase, either party may bring the matter before the Court so that it can be addressed.”
[5] On July 8, the Crown provided an initial disclosure package to defence counsel. From then, nothing occurred until August 25, when defence counsel wrote to the Crown again. Counsel repeated the request for “all disclosure pertaining to my client’s matter” and this letter contained the same particularized list of 11 items except that “DRE videos” had been substituted for “breath room videos”. The letter made no mention of the fact that an initial disclosure package had been provided that contained many of the items set out in this second letter. The August 25 disclosure request contained the same assertion by counsel that they would not attend a Crown pre-trial until disclosure was complete.
[6] On this application, the Crown criticized the defence for sending a boilerplate disclosure request rather than an itemized list of material that remained outstanding after reviewing the initial package. I agree with the Crown that the letter sent by defence is unhelpful and runs counter to the spirit of Jordan and the OCJ Enhanced Designation directive. The prosecution and defence both have an obligation to work cooperatively to ensure that matters before the court are dealt with efficiently. While there is merit to the Crown’s criticism, it is also true that the Crown did not respond to this disclosure request. If there was confusion about what disclosure remained outstanding, the Crown ought to have sought clarification. It turns out the Crown was aware that the videos of the defendant made by the police in the course of their investigation of her were not contained in the initial disclosure package, for it had specifically requested this material from the police on June 30.
[7] Additional disclosure was provided by the Crown on September 28, 2021, the day before the expiry of the 12 week period covered by the enhanced designation. This included a written report and notes detailing the DRE tests performed on the defendant. Defence counsel then sent another disclosure request to the Crown via email on the same date. This contained the same boilerplate language as the first two requests, and the same particularized list of 11 items as the August 25 request. Counsel agree that what was outstanding by way of disclosure at this time were the videos of the defendant at the police station including the booking, cell block and DRE videos.
[8] I repeat the message from Jordan here – both the Crown and defence have a duty to take proactive steps to minimize delay. For the defence, this includes particularizing requests for additional disclosure. For the Crown, this includes following up on outstanding disclosure diligently. By the end of the enhanced designation adjournment period, the Crown had done nothing else to secure the outstanding videos from the police.
[9] This is not a case where the defence was unreasonably insisting on receiving every possible scrap of disclosure before moving the case forward. Video recordings of the DRE evaluation of a defendant in an impaired by drug case constitutes core disclosure. Defence counsel was entitled to review the recording made of his client performing the tests which form the basis of the officer’s opinion that she was impaired by a drug before he could be expected to provide competent legal advice to her. I have been provided no explanation why these videos were still outstanding after three months. The Crown ought to have followed up with the police to find out why this critical disclosure, videos which were created by the police service itself, was still missing.
[10] I am also troubled by the lack of meaningful communication between the parties. In the disclosure requests sent by the defence, they state that they will not conduct a Crown pre-trial until disclosure is complete. In oral argument, defence counsel sought to distance himself from this assertion, and pointed out that the trial date was set even before toxicology results were disclosed. However, his letter says what it says, and it is clear from the transcripts that counsel took the position that a pre-trial could not occur until the videos were disclosed. Although I agree with the defence that the videos here were essential disclosure that was required before it could obtain proper instructions or estimate trial time in a meaningful way, I fail to understand why the parties felt as though they could not talk. The defence could have made its position clear, the Crown presumably would have understood the importance of the missing disclosure, and steps could have been taken to increase pressure on the police to produce the videos. In my view, the court is entitled to expect that both parties will take these steps during the enhanced designation adjournment period, rather than sitting back passively. The Crown is certainly not faultless here either – there is no good reason why pre-trial discussions need to be initiated by the defence. Both parties failed to live up to the spirit of Jordan and their conduct undermined the purpose of the enhanced designation process.
[11] Neither party was concerned enough about the unavailability of this essential disclosure to follow the Enhanced Designation directive by bringing the matter forward. At the second court appearance on September 29, the defence advised that it was still awaiting the video disclosure. The court acceded to a request to adjourn the matter for another four weeks without undertaking any kind of inquiry into the status of the disclosure. The matter simply went over in the hopes that the missing videos would surface, and that a Crown pre-trial could then occur. It would turn out that this hope was misplaced, and that nothing further would be accomplished over the next month.
[12] It is important to note, in my view, that by this time the case had been in the system for three months already. It had been adjourned through a process designed to ensure that both Crown and defence attended to preliminary matters like disclosure issues and initial pre-trial conferences. The matter ought to have been ready to move to the next stage, a judicial pre-trial, by the end of this 12-week period. The matter ought to have been brought forward when it became apparent there was a problem with core disclosure. At a minimum, red flags ought to have been raised at the second court appearance when it became apparent that nothing meaningful had been done to move the case forward.
[13] At the next appearance on October 27, the defence advised that it had received additional disclosure but was having trouble opening the electronic files. According to the Crown, the videos which all parties had been waiting on had finally been disclosed the day before. However, because counsel had been unable to open these files, no one was sure when the matter was addressed in court that they actually contained the videos. Once again, the court acceded to a request from counsel to adjourn the matter for another four weeks until November 24 without expressing any concern about the growing delay.
[14] On November 23, the day prior to the next court appearance, defence sent an email to the Crown’s scheduling clerk to request a date for a Crown pre-trial. When the matter was addressed in court, defence requested another four week adjournment in order for a Crown pre-trial to occur. No one raised any concern about the need for this case to be given any priority in light of the delay that had occurred to this point. The matter was simply adjourned from November 24 to December 22.
[15] On November 25, the Crown’s office responded to the request from defence counsel for a pre-trial by offering two times – December 13 at 2:30 p.m. or December 20 at 3:30 p.m. The defence responded that they were unavailable, prompting an offer of another slot on December 16. The defence responded that they were unavailable on that day also, but offering December 14. The Crown responded that no other dates were available in December but that it would follow up when the January schedule opened up.
[16] By this point it should have been readily apparent to all parties that the case was in crisis. On the next court date the case would be almost six months old yet the parties could not come up with a date to accommodate a Crown pre-trial in the interim. This after months of unacceptable delay due to late disclosure. The case ought to have been prioritized by the Crown. Instead, the Crown appears to have adopted a take it or leave it approach to scheduling a Crown pre-trial. This is inconsistent in my view with the obligation placed on all parties to take proactive steps to reduce delay. I cannot accept the Crown’s argument that the defence is responsible for all delay beyond the first pre-trial date that was offered. At this time there was a future court date – December 22 – a case that was in crisis due to Crown delay in providing disclosure, and plenty of time available to prevent further delay by prioritizing the case. Again, however, the culture of complacency carried the day.
[17] On December 22, the matter was adjourned for another four weeks to January 19, 2022 in order for the Crown pre-trial to occur. Mercifully, it did occur on January 11. At the January court appearance, a Judicial pre-trial was scheduled for February 24. The JPT was held as scheduled, a two day trial was authorized, and dates were obtained and set on March 8, 2022. The first available trial dates that were offered were accepted by both parties, being May 8 and 9, 2023.
[18] In Jordan, the Supreme Court established a presumptive ceiling of 18 months net delay for cases heard in provincial court. Net delay is calculated by subtracting any defence delay from the total delay. If the net delay exceeds 18 months, then it is presumptively unreasonable and the onus shifts to the Crown to prove that the delay was nevertheless reasonable. One of the ways it can do so is by demonstrating that some period of the delay was caused by a discrete exceptional circumstance, and that the remaining delay falls below the presumptive ceiling.
[19] Here, the total delay is 665 days, or approximately 21.9 months. The Crown argues that the entire period from September 29, the first court appearance after the enhanced designation period, until January 19, the first court appearance after the Crown pre-trial occurred, ought to be deducted as Defence delay. This would leave a period of net delay of 19 months. The Crown further argues that an additional period of delay ought to deducted due to the ongoing effects of the Covid-19 pandemic, which would take the remaining delay below the presumptive Jordan ceiling.
[20] If I agree with the Crown, the Defence does not argue that it has met the high threshold for a stay of proceedings in cases where the delay is below the presumptive ceiling. On this record, that concession is wise.
[21] I do not agree with the Crown that the delay from September 29 to January 19 is defence delay. The video disclosure, which is core disclosure, was not provided until October 26. Clearly, competent counsel would require some time to review the disclosure with their client before conducting a pre-trial. For the reasons I have already expressed, the Crown adopted an inflexible approach to the scheduling of the Crown pre-trial when flexibility and prioritization of the matter was called for. None of this period constitutes defence delay in my view.
[22] However, I do find that the Defence is responsible for a portion of unnecessary delay during the enhanced designation period. By choosing to file an enhanced designation, counsel implicitly undertook, in my view, to abide by the court’s expectation to move the case forward in a meaningful way. Defence counsel failed to do so. Instead, he chose to send unhelpful boilerplate disclosure requests instead of identifying the disclosure that was actually still outstanding. Defence counsel knew that disclosure was a problem that was preventing the objectives of the enhanced designation adjournment period from being accomplished, yet did not bring the matter to the court’s attention. They ought to have done so.
[23] For its part, the Crown ought to have responded to the ongoing disclosure requests and sought clarity if it was unaware of the nature of the outstanding disclosure. It ought to have followed up with the police on the outstanding disclosure well before the enhanced designation adjournment period lapsed. These were video recordings of the defendant made by the police service, and the unexplained delay in providing this fundamental disclosure to the Crown is simply unacceptable. The Crown too ought to have brought the matter forward and to the attention of the court.
[24] Nor is the court blameless in the matter. The parties ought to have been held to account after the enhanced designation period lapsed, disclosure was still incomplete and no Crown pre-trial had been held. Steps ought to have been taken at that stage to ensure that the outstanding disclosure was promptly rectified. The court ought to have insisted that a Crown pre-trial occur promptly once this disclosure was finally received, rather than acquiescing in adjournments month after month. Had the parties or the court heeded the Jordan message to change the culture of complacency, the excessive intake delay seen in this case would not have occurred.
[25] In all of the circumstances, I am of the view that a period of six weeks or 42 days, which is half the enhanced designation adjournment period, ought to be attributed as defence delay. This reduces the net delay to 623 days, or about 20.5 months.
[26] The Crown argues that some deduction ought to be made as a result of the pandemic, a discrete exceptional circumstance beyond its control. As I recently held in R. v. Tafilica, 2023 ONCJ 181, however, in my view the Crown has an obligation to show that any claimed pandemic delay was actually caused by the pandemic. Though the pandemic undoubtedly had an impact on scheduling, I am unable to assign a specific period in the absence of evidence. In my view, doing so would be an exercise in arbitrariness. I agree with the reasoning of Sickinger J in R. v. S.M., 2022 ONCJ 513 at para. 38, that “to subtract a blanket period of delay, without a proper evidentiary framework, would accomplish no more than to have the Court place a thumb on the scale in order to save this case from a stay.”
[27] The Crown invited me to apply my knowledge of local scheduling practices in order to find that the pandemic caused some portion of the delay in this case. I am simply unable to do so in a manner that would not be arbitrary. This jurisdiction has suffered from inadequate judicial resources since well before the pandemic. I have presided in this jurisdiction since 2014, and have been the Local Administrative Judge since 2018. The Peterborough OCJ courthouse is woefully inadequate for the needs of this community, and has been for many years. The present courthouse has four courtrooms to accommodate set date / case management courts, bail court, plea court, judicial pre-trials, youth court, specialty courts including community support court and Indigenous Peoples’ Court, as well as preliminary inquiries and trials. Two of the four courtrooms are used as trial courts.
[28] The building, however, is owned by the city of Peterborough and leased by the Ministry of the Attorney General for use as a courthouse. When the lease was last renewed in 2018, the terms were varied to permit the city to use one of the two trial courts three days per week for prosecutions under the Provincial Offences Act. Thus, this court’s ability to schedule trials was reduced by 30%. Since then, the population in this area has continued to grow, as have the number of criminal cases before the court.
[29] Furthermore, litigation in the Ontario Court of Justice has become increasingly complex over the last number of years. Preliminary inquires have been eliminated for large numbers of offences. The result has been that more of these cases proceed to a trial rather than a preliminary inquiry in the OCJ. Trials are more time consuming than preliminary inquires generally. Sexual offences, which comprise a large proportion of the workload in the OCJ in this jurisdiction, have become much more complex due to legislative amendments which now frequently require the scheduling of numerous dates for pre-trial applications. In short, we have more cases, more trials, and more complex trials and fewer available courtrooms into which the matters can be scheduled. Set date delay is a chronic problem in Peterborough as a direct result of inadequate resources being allocated for the number of cases that need to be tried in this community.
[30] Clearly, a period of set date delay of 14 months for a routine impaired driving trial expected to last two days, as is seen in this case, is problematic. Set date delay of this magnitude requires that such cases proceed through the intake phase expeditiously in order for the cases to remain under the Jordan ceiling. That is a simple reality in this jurisdiction due to a lack of adequate resources. While I suspect that the pandemic also had an impact on the length of set date delay in Peterborough, without evidence this is impossible to quantify. In all of the circumstances, I decline to deduct any period from the net delay in this case as a result of the effects of the pandemic.
[31] In the result, the defendant has proven a breach of her right to be tried within a reasonable time. The charge against her is stayed.
Released: May 8, 2023 Signed: “Justice S.W. Konyer”