His Majesty The King v. Danny Costa Pereira, 2023 ONCJ 20

ONTARIO COURT OF JUSTICE DATE: 2023 01 16 COURT FILE No.: Toronto 21-75002291, 21-75004504, 21-75003622

BETWEEN:

HIS MAJESTY THE KING

— AND —

Danny Costa Pereira

Before Justice Rebecca Rutherford

Heard on November, 9, 2022, November 25, 2022 and December 20, 2022 Reasons for Judgment released on Monday, January 16, 2023

Counsel: Minu Walia............................................................................................ counsel for the Crown Mark Kamel…………………………… counsel for the Applicant Danny Costa Pereira

Rutherford J.:

[1] This is an application pursuant to s. 11(b) of the Charter of Rights and Freedoms. The Applicant alleges that his right to trial within a reasonable time has been violated and is requesting a stay of proceedings.

[2] The Applicant was initially charged with multiple separate offences spanning a time frame from May 17, 2021, to August 2021. In January 2022 the Crown decided to conduct one global prosecution.

[3] Both the Applicant and Respondent agree the total delay to the conclusion of the trial in this matter is 20 months and 1 day. However, they dispute the calculation of the net delay.

[4] The Applicant submits the only delay attributable to the defence is the delay between April 1, 2022 and April 6, 2022. Mr. Kamel argues that otherwise the Applicant moved the case along to trial expeditiously and pursued disclosure in a diligent manner. Mr. Kamel points out the Applicant set Crown pre-trials and conducted judicial pre-trial trials as required. Mr. Kamel argues the only obstacle preventing the Applicant from setting continuing judicial pre-trials and trial dates was the Crown’s failure to provide all essential first party disclosure. Mr. Kamel submits that without the:

(a) SOCO photos of the Applicant’s injuries; (b) text messages; and (c) body worn camera recordings of the both parties’ utterances’;

the Applicant could not make important decisions about the conduct of his defence. The Applicant was therefore unable to conduct a meaningful judicial pre-trial to properly decide trial time estimates.

[5] Mr. Kamel also submits that when the Crown chose to combine all offences to conduct one global prosecution, the outstanding disclosure became more important because of its impact on trial strategy.

[6] Mr. Kamel argues the delay in getting this matter to trial was due to the Crown’s inattention to providing essential disclosure. He points out that:

(a) Officer Matthews expressed frustration with the Crown about late requests for disclosure. (b) there was confusion surrounding whether any SOCO photos of the Applicant were even in existence. (c) although Officer Ferreira provided all text messages regarding the criminal harassment allegations to the Crown’s office on October 28, 2021, the assigned crown neither reviewed nor disclosed them to the Applicant until February 1, 2022. (d) all disclosure was not provided to the Applicant until March 22, 2022.

[7] Mr. Kamel further submits that the Applicant’s mental health diversion application had no impact on the delay in this case because it was pursued at the same time as disclosure was being requested. At no time did the Applicant ever give up his right to trial.

[8] The Crown argues that 175 days of delay was caused by the defence.

[9] Ms. Walia submits there are two portions of defence delay.

[10] She submits the first falls between August and October 2021. Ms. Walia argues that Mr. Kamel had initial disclosure and knew who the assigned crown was by August 2021. She submits by August the Applicant had sufficient time to review disclosure and conduct a crown pre-trial. Ms. Walia submits it was unreasonable for the defence to have waited until October 2021 to make the first request for a crown pre-trial. She argues, therefore, the delay from August to November 6, 2021, is defence delay.

[11] Ms. Walia submits the second period of delay falls between January 17, 2022, the date of the first judicial pre-trial and April 14, 2022, the date the trial scheduling form was submitted to the Trial Coordinator’s office by the Applicant. The Crown argues that by January 17, 2022 the Applicant had sufficient disclosure to conduct a meaningful judicial pre-trial and set trial dates. Ms. Walia relies on the case of R v. Lahiry 2011 ONSC 6780 to support her argument. She argues that had trial dates been set, disclosure would have been pursued and provided well before the trial, causing no prejudice to the Applicant.

[12] The Crown submits further that it was unreasonable for the Applicant to refuse to set continuing judicial pre-trials and trial dates in the absence of full disclosure. Ms. Walia points out that portions of the disclosure already in the Applicant’s possession addressed the concerns the Applicant had about outstanding disclosure. The Crown reminds the Court that disclosure does not have to be perfect in order to conduct a judicial pre-trial and set trial dates.

[13] Ms. Walia submits further the Applicant pursued mental health diversion in 2022 to avoid setting a trial date. She argues the Applicant knew the offences he was facing were presumptively ineligible, therefore, he knew the application had no merit. She points out the Applicant did not provide proper documentation to the Crown to consider the application. The Crown argues this demonstrates the Applicant was not serious about diversion and that it was only a tactic to delay the trial in this matter.

The Law

[14] Section 11(b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. The primary purpose of this section is to protect the individual rights of an accused, in particular the right to security of the person, the right to liberty, and the right to a fair trial. Section 11(b) provides an individual accused with a counterweight to the state’s power and authority to prosecute – the obligation to do so within a reasonable time. Jordan, 2016 SCC 27, at para. 50.

[15] Section 11(b) also advances a societal interest. Society as a whole has an interest in seeing that those who are accused of crimes are treated humanely and fairly. Trials held promptly promote the confidence of the public. The failure of the justice system to deal fairly, quickly, and efficiently with criminal trials leads to the community’s frustration with the judicial system. Jordan, at paras. 22-25.

[16] The Supreme Court of Canada in Jordan set out the framework for analyzing whether an individual’s rights under s. 11 (b) have been violated. At the heart of the Jordan framework is the creation of presumptive ceilings, beyond which delay to the completion of trial becomes presumptively unreasonable.

[17] The presumptive ceiling is intended to provide “assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.” The ceilings were a response to a criminal justice system which had come to “tolerate excessive delay” and which exhibited a “culture of complacency”.

[18] The presumptive ceilings in which a defendant is to be brought to trial are as follows:

(a) 18 months for cases in the provincial court, and (b) 30 months for cases tried in the superior court.

[19] In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. R v Jordan at paras 5; 46-8; 49; 60

[20] The steps to be taken in applying the framework are as follows:

(a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument. (b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”. (c) Compare the Net Delay to the presumptive ceiling. (d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow.

[21] Exceptional circumstances fall under two categories:

(a) discrete events and (b) particularly complex cases.

[22] Once the delay caused by the discrete event is identified, it is to be subtracted from the net delay.

[23] If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

[24] If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. R v Coulter, 2016 ONCA 704 at paras 34-41

[25] Every participant in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution for offences while the evidence in the cases against them grows stale over time, or there is ultimately a stay for delay. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole.” Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction must be subtracted from the total delay.

Analysis

[26] The issues for me to determine in this case are:

1. Did the Applicant have sufficient disclosure to: (a) conduct an earlier Crown pre-trial and (b) set trial dates following the judicial pre-trial held on January 17, 2022. And
2. What impact, if any, did the pandemic have on delay?

Issue 1

[27] Although there are numerous charges and different offence dates, this is not a complex case. There is one main complainant and several police witnesses. There is also documentary evidence that will be adduced. Overall, the disclosure to be provided in this case appears to be straightforward. Yet somehow it became complicated.

[28] The Crown argues the Applicant should have had a crown pre-trial by August 2021 and not wait until October 2021 to request one. However, several pieces of disclosure were still missing and being gathered in October 2021. All of this is clear from the record.

[29] In my view had a crown pre-trial been scheduled between August and October 2021 not much would have been discussed except perhaps to set a follow up crown pre-trial. Further I fail to see how the assigned Crown at this time could have been in a position to determine trial issues because she had not reviewed nor was even in possession of the text messages regarding the criminal harassment prosecution. In these circumstances I do not find that the Applicant caused any delay between August 2021 and November 6, 2021.

[30] Ms. Walia, in an effort to spare the complainant from testifying on multiple occasions, decided to conduct a single prosecution. This is to be commended however by making this decision the Crown would have known there would be more delay in setting a multi-day trial rather than individual 1-day trials.

[31] I, therefore, disagree with the Crown that a global prosecution mitigated delay. Separate judicial pre-trials are not necessary when an individual is charged with offences involving separate incidents. As a judge who regularly sits at College Park and as the Local Administrative Judge, I often conduct a single judicial pre-trial for cases that involve multiple sets of offences where separate trial dates are required. It is also often the case at this courthouse that separate trials are scheduled in the same week or within several weeks of one another. A global prosecution certainly spares witnesses from having to testify more than once but it often does not result in any time savings.

[32] The Crown should also have known that when prosecuting all offences at once, disclosure for each incident should be provided at or around the same time so the defence is fully informed and can make decisions about trial strategy. This did not happen. By the time the judicial pre-trial occurred on January 17, 2022, the Crown had failed to provide SOCO photos from one incident, text messages from another and body worn camera footage from a third incident.

[33] I do not agree with the Applicant that the SOCO photos and body worn camera disclosure were required to conduct a judicial pre-trial and set a trial date. I will elaborate on this point later in my reasons. However, I do find the text messages regarding the criminal harassment allegations are essential first party disclosure and should have been in the possession of the defence before conducting a meaningful judicial pre-trial and estimating trial time. These messages, as I understand it, are the criminal harassment allegations against the Applicant. Although there were some telephone communications, it is the text messages that form the basis of the criminal harassment. Neither party were in possession of them at the time of the judicial pre-trial before Justice Borenstein. (January 17, 2022)

[34] The Crown concedes the text messages were sent to the Crown’s office on October 28, 2021. Ms. Walia has no explanation why neither she nor anyone else reviewed them until the end of January 2022. I find this perplexing because the Crown decided to conduct a global prosecution without knowing the extent of its case. I fail to see how the Crown can say it was ready to set a trial date on January 17, 2022, in the absence of this important disclosure. The Crown would not have been familiar with the contents of the text messages nor be in a position to understand how they related to the other incidents, if in fact they did. There may have been phone calls that coincided with the text messages but in my view that was insufficient to make determinations about the importance of the text messages and determine whether anything else flowed from them.

[35] In a global prosecution of this nature, the text message disclosure, in my view, should have been provided to the Applicant before the judicial pre-trial so he could determine trial strategy, particularly strategy surrounding the cross examination of the complainant. This decision alone could impact trial time estimates because the cross examination could be more detailed given the numerous allegations. In these circumstances and in the absence of text message disclosure the defence should not have been required to set a trial date. According to Justice Bornstein’s judicial pre-trial notes it appears he agreed.

[36] Knowing delay was an issue, the Crown could have severed off the criminal harassment offences after the January 17, 2022 judicial pre-trial and set a trial date for the other offences either separately or globally. I say this because in my view the Applicant did not need the SOCO photos and body worn camera for the purposes of conducting the judicial pre-trial or setting a trial date.

[37] The SOCO photos were of the Applicant’s injuries. The Applicant would have known what his injuries were at the time of his arrest. He had the ability to take photos of the injuries himself. He could have gotten medical documentation describing them. He would not have been blindsided by the SOCO photos if they were disclosed to him after setting a trial date.

[38] Similarly with the body worn camera, the Applicant had disclosure of a KGB statement from the complainant describing the incident that was the subject of the body worn camera utterances. The Applicant would have had a good idea of what the complainant was alleging. Had the disclosure been provided in a reasonable time before the trial, which it was, the defence strategy would not have been impacted. As Justice Code said in Lahiry, supra:

Outstanding disclosure can often be significant and it still cannot be used to hold up the setting of a trial or preliminary inquiry…..it is only when missing disclosure is truly material to crucial steps in the process, like election and plea, that it will justify a delay at the early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy for ongoing disclosure received from the Crown while awaiting trial…..

[39] The Crown provided 90 pages of text messages to the Applicant on February 1, 2022. I accept that Counsel needed to review them and then review them with the Applicant. This takes some time. One month is a reasonable amount of time for this purpose. The Applicant, therefore, should have been in a position by March 1, 2022 to set a continuing judicial pre-trial with Justice Borenstein and a trial date thereafter.

[40] Instead, on February 11, 2022, Mr. Kamel asked for a 6-week adjournment for disclosure of the SOCO photos and the body worn camera. Half that time would have been more appropriate so the parties could have obtained a date for a continuing judicial pre-trial with Justice Borenstein. Continuing judicial pre-trials at College Park are scheduled much faster than a new judicial pre-trial.

[41] The delay between March 1 and April 14, 2022, is defence delay. The trial scheduling form was sent to the Trial Coordinator’s office on April 14, 2022. There is no explanation from the Applicant why the form was not sent in immediately after the judicial pre-trial requesting trial dates. It seems to me that would have been the prudent thing to do given the history of the matter.

[42] The Trial Coordinators office provided trial dates to the parties electronically on April 20, 2022. The delay between April 14 and April 20, 2022 is not, in my view, attributed to the pandemic. I agree that trial scheduling changed during the pandemic, namely it went from in person scheduling to electronic scheduling. However, in April 2022 the trial coordinators were back in person at College Park. Had both parties wanted to attend the Trial Coordinator’s office in person for a trial date on April 6, 2022, after the judicial pre-trial or attend on April 14, 2022, they could have obtained trial dates. The parties chose not to. In my view the time between April 14 and April 20 is neutral time.

[43] I do not find that there was any tactical decision on the part of the Applicant to delay the case by applying for mental health diversion. The record is clear the diversion application ran concurrently with the Applicant’s requests for disclosure. At no time did the Applicant ever give up his right to a trial. There is nothing in the record that suggests this. I agree that a lot was stated about diversion at many court appearances, however at the same time Mr. Kamel still requested disclosure. In this case, as in many cases, it benefits all concerned parties for a defendant to pursue other possible options while still pursuing a trial. This is what the Applicant did in this case.

Issue 2 – The pandemic

[44] There is no evidence before me the pandemic caused any delay in this case. Officer Matthews testified the pandemic caused delay at video services however the disclosure she was referring to was not disclosure that was required for the initial judicial pre-trial or for setting a trial date, therefore it did not hold up setting a trial date. Also Officer Ferreira forwarded all of the disclosure on his case to the College Park Crown’s office by October 28, 2021.

[45] I also note that in this case a 4-day trial was set within 9 months after the last judicial pre-trial. This is not dissimilar to what was happening at College Park before the pandemic. I am not blind to the disruption the pandemic had on trial scheduling and on our whole administration of justice however by the time this matter was ready to be set down for trial scheduling was significantly more organized.

[46] The disruption caused by the pandemic is not an exceptional circumstance in this case.

[47] The total delay in this case is 20 months and 1 day

[48] The defence delay is from March 1-April 14, 2021, therefore, 45 days.

[49] The net delay is calculated as set out in R. v. Shaikh, 2019 ONCA 895 - footnote 2.

My calculations, therefore, are as follows:

20 months x 30.417= 608.34

• 1 day = 609.34

• 45 days = 564.34 Divided by 30.417 = 18.55 months

[50] 18.55 months is above the presumptive ceiling for cases tried in the Ontario Court of Justice.

[51] Ms. Walia submits the Crown tried to mitigate the delay in this case by requesting an earlier trial date. She told me during submissions the Trial Coordinators initially provided May 2023 dates to the parties. The Crown then requested something earlier. The parties were given trial dates of January 16-19, 2023, still outside the Jordan framework.

[52] First of all, there is no evidence before me of any of this. I do not disbelieve Ms. Walia however submissions are not evidence. Having said that even if I did have an affidavit setting this out, I understand all of these discussions took place when the dates were first set in April 2022. There is always back and forth between all parties when initially setting trial dates.

[53] There is no evidence of any efforts by the Crown subsequent to April 2022 to secure earlier dates.

[54] Further it seems to me this all could have been avoided had the Crown reviewed and provided the crucial disclosure in its possession on October 28, 2021 in a reasonable time. That would have mitigated any delay.

[55] Accordingly, the application is granted and the charges are stayed.

Released: January 16, 2023 Signed: Justice Rebecca Rutherford