ONTARIO COURT OF JUSTICE

CITATION: R. v. Smith, 2023 ONCJ 222

DATE: 2023 05 31

COURT FILE No.: Toronto 4814-998-21-45001677

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANDREW SMITH

Before Justice Christine Mainville

Heard on April 25, 26 and May 5, 2023

Reasons for Judgment released on May 31, 2023

Geocelyne Meyers............................................................................. counsel for the Crown

Martin Montes................................................... counsel for the defendant Andrew Smith

Mainville J.:

[1] Mr. Smith stands charged with one count of assault against Breanna Henry, the mother of his child. The incident is said to have occurred on May 24, 2021, when Ms. Henry went to retrieve their child from outdoor Victoria Day festivities at Mr. Smith’s request.

[2] The trial in this matter was first scheduled to begin on April 5, 2023. As a result of disclosure issues, it was adjourned to April 25, 2023, and began before me. In the interim, the defence filed an application for a stay of proceedings for unreasonable delay. Given the short turnaround for the new trial dates, the Crown did not have time to respond prior to the start of trial. The trial therefore began on April 25, 2023, to not further delay the matter. The parties agreed that the delay application would be heard on May 5, 2023, the third and final date set for trial. The evidence on this application was blended with the trial.

[3] The defence also filed an application to stay the proceedings due to lost evidence. The Crown concedes that there was a breach of the accused’s s. 7 Charter rights due to this lost evidence but argues that a stay is not warranted in the circumstances. The defence submits that in the alternative, I can exclude certain items of evidence pursuant to s. 24(2) of the Charter, and ought in any case to consider the impact of the lost evidence when assessing the evidence on the trial proper.

[4] I begin by addressing the application for a stay due to unreasonable delay, given that it is dispositive.

Ruling on stay of proceedings due to unreasonable delay

[5] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice beyond which delay will be presumptively unreasonable.

[6] The first step in the Jordan analysis is to calculate the total delay from the time of charge to the end of trial. Mr. Smith has been charged since May 25, 2021, the day following the alleged incident. His trial concluded on May 5, 2023, almost two years later.

[7] The next step is to deduct defence-caused delay. The resulting net delay must then be compared to the presumptive ceiling of 18 months. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases. If it cannot rebut the presumption, a stay will follow: Jordan, paras. 47 and 71.

[8] The defence has conceded that it is responsible for two discrete time periods, amounting to 54 days. In one instance, it took ownership of delay resulting from the failure to promptly schedule a Crown pretrial. In another, it expressly waived delay to have more time to consider resolution and obtain instructions. These concessions bring the total delay down to approximately 21.5 months.

[9] There are three areas of contention between the parties as it relates to the remaining time period, and whether they constitute defence delay.

(1) Time between charge and arrest (3 months)

[10] The main point of contention relates to the time between the laying of the information charging Mr. Smith, and his arrest over three months later – specifically, May 25, 2021 to August 31, 2021. The Crown submits that Mr. Smith was aware that he was wanted by the police and that he purposely avoided arrest, such that he cannot now complain of this time period when alleging that his right to a trial within a reasonable time has been breached.

[11] The bulk of the cases brought to my attention that deal with similar fact scenarios address the issue under the exceptional circumstances or “discrete event” stage of the Jordan analysis. That is, once the net delay is calculated and it exceeds the presumptive ceiling, the Crown bears the onus of demonstrating that the accused’s absconding conduct or avoidance of the criminal process constitutes a discrete event or exceptional circumstance that cannot be laid at the Crown’s feet. That is because it is well settled that the Jordan clock starts ticking from the moment a charge is laid, not from the time the accused is arrested: see, most recently, R. v. Allison, 2022 ONCA 329; see also R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594 and Jordan, at paras. 47-49.

[12] I nevertheless accept that in some circumstances, the accused having knowingly and purposely absconded and thereby caused delay following the laying of the charge could be characterized as defence-caused delay resulting in a reduction of the net delay. I accept this proposition while noting that an accused has no obligation to make himself available to the police or authorities for the execution of an arrest warrant, or to contact the police to see if he might be charged with a criminal offence. On the other hand, the courts cannot allow accused persons to benefit from deliberate and purposeful avoidance of the criminal process resulting in delay in bringing their matter to trial. To do so would encourage flight and avoidance of the justice process by persons accused of a crime.

[13] The Court of Appeal’s decision in R. v. White, 1997 2426 (ON CA), [1997] O.J. No. 961 (C.A.) supports this contention. In that case, the Court held that where an accused knows that charges are outstanding, yet refuses to return to Canada or notify the authorities of his whereabouts, the resulting delay is attributable to the defence, unless the authorities knew the accused’s whereabouts and deliberately delayed apprehending him or otherwise failed to bring the accused to trial.

[14] I therefore begin by assessing whether Mr. Smith knowingly and purposely avoided being located by police in respect of this matter. The Crown relies on text messages sent by Mr. Smith to Ms. Henry in the days following the incident, where he indicates that he intends to do certain things following which he will be “going in”. The Crown submits that these messages, which were filed as exhibits on this application, establish that Mr. Smith knew he was sought by police in relation to this charge, and that while he stated his intention to surrender, he did not in fact do so.

[15] The defence contends that this inference cannot be drawn from the text messages. It points to other evidence before me that Mr. Smith had outstanding charges in Barrie at the relevant time. The defence also points to one of Ms. Henry’s messages, in the same messaging chain, where she indicates that she “will be” pressing charges. She does not indicate that she has already done so, nor does she later confirm having done so.

[16] Complainants in Ontario in fact do not “press charges” as it is the police who decide whether or not to lay charges, irrespective of whether the complainant wishes to proceed. Regardless, it is apparent that Ms. Henry is conveying either an intention to report the matter to the police, or to inform the police that she wishes the matter to proceed. Either way, she is conveying a future intention. I cannot infer from that comment that Mr. Smith would have understood that the matter had already been referred to the police, and indeed that he was wanted by the police.

[17] There is no evidence that Mr. Smith was still on scene when Ms. Henry reported the matter to the police that evening. The police in fact acted on information that he had already left the area of Amaranth Court where the events took place, such that they did not speak to him that evening.

[18] This is not a case where Mr. Smith absconded after making an appearance in court or being properly remanded to court. Nor is there any indication that he was aware of the warrant for his arrest. The affidavit evidence filed by the defence states that “The Applicant was before the Ontario Court of Justice in Barrie, Ontario, on unrelated, preexisting criminal charges at the time the above noted arrest warrant was issued. Between May and August 2021, the Applicant was attending his Barrie court dates regularly via his counsel of record Martin Montes, the Applicant was in regular contact with his counsel, and counsel was in regular contact with the Barrie Crown Attorney’s office.”

[19] On the evidence adduced, and considering that Mr. Smith had outstanding charges in Barrie, I cannot conclude from his words “I’m a go in” that he was purposely avoiding process in respect of this charge. The surrounding context is too ambiguous.

[20] This case is distinguishable from cases where there is clear evidence that the accused was aware of the charge(s) and left the jurisdiction. See, e.g., R. v. Burke, [2017] O.J. No. 2792 (S.C.J.) and R. v. Singleton, 2014 BCCA 232.

[21] In R. v. Rea, 2018 ONCJ 425, the judge was unable to conclude that Mr. Rea knew about the charge and had deliberately evaded authorities for years prior to his arrest, after the information had been laid. However, once before the court, Mr. Rea failed to attend his trial (and an earlier court date where his attendance was ordered), when he was aware that his attendance was required. The application judge held that this conduct was inconsistent with a desire to exercise his right to a trial within a reasonable time. In that case, the time between charge and arrest – almost three years, was deducted from the total delay as a “discrete event”.

[22] In Mr. Smith’s case, once arrested, he promptly retained counsel and never failed to appear or respond to the court process.

[23] I therefore do not find that this time period ought to count as defence delay. As such, the net delay exceeds the 18-month Jordan ceiling, even if I were to subtract the other two contested periods of delay which I address below.

[24] The onus thus rests on the Crown to show that the police nevertheless made sufficient efforts to locate the accused such that it should be characterized as an exceptional and discrete circumstance.

[25] In R. v. Magiri, 2017 ONSC 2818, the court accepted that the pre-arrest period qualified as a discrete event where it found that the police made significant and diligent efforts to locate the accused. Similarly, in R. v. Thind, 2018 ONSC 1337, the court held that while the police need not take every conceivable step to apprehend the accused, they must act with reasonable diligence. Moreover, s. 511(1)(c) of the Criminal Code makes clear that from the point of charge, the police are obligated to act on an arrest warrant issued pursuant to that section “forthwith”.

[26] In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable: Jordan, para. 69. The Crown needs to show that it took reasonable steps to avoid and address the problem where it was possible to have done so. It need not prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Rea, para. 25.

[27] The Crown filed the affidavit of D/C Ellis, the officer in charge, to demonstrate the steps taken to locate Mr. Smith. She indicates that the police attended Mr. Smith’s known residence on May 25, 2021, the day after the events. They obtained his address on Leila Lane in North York from Ms. Henry and other witnesses. A female at the door advised that Mr. Smith was not there and she did not know his whereabouts.

[28] The police then applied for and obtained an arrest warrant. D/C Ellis asked the Primary Response Unit and Community Response and Neighbourhood Units “to check the areas of Amaranth Court and Leila Lane on a frequent basis for the accused”. Ms. Henry had indicated that Mr. Smith frequented a particular residence in Amaranth Court. It is not clear from the affidavit whether any checks were made at that address.

[29] The Community Response and Neighbourhood Units attended Mr. Smith’s home address again on May 28, 2021, at which time Mr. Smith’s mother indicated that he was “not on scene”. It is not clear from the evidence whether he was expected at any point in time. It appears that on or around the same date, one of the attending officers from the Neighbourhood Unit spoke with Ms. Henry’s grandmother who indicated that she believed the accused had fled and was in the Barrie or Wasaga Beach area.

[30] It should be made clear that the Crown does not rely on statements such as these for the truth of their contents. Indeed, they would not be admissible for that purpose. Rather, I set this information out here to account for what the police did or did not do in response.

[31] The only other evidence I have of concrete steps taken by the police is D/C Ellis’ affirmation under oath that she spoke with a detective constable from Barrie police, requesting assistance searching for the accused. This took place on July 23, 2021, almost two months after the information that Mr. Smith was believed to be in the Barrie or Wasaga area was first obtained. It is unclear why that information was not acted on more promptly, while it remained more current.

[32] According to D/C Ellis, she was informed that Barrie police checked hotels within Barrie with negative results. It is unclear from the affidavit how this was done and whether this was limited to checking the hotel parking lots for a vehicle previously registered to the accused, as the affidavit seems to imply. Barrie police indicated they would continue checking the area for the accused. There is no indication that police in Wasaga Beach were contacted.

[33] There is evidence from D/C Ellis that what appears to be two requests for assistance were made of the Primary Response Unit and Community Response/Neighbourhood Units, to frequently check the accused’s address and neighbourhood in order to locate him. The first was made when the warrant was issued on May 25, as set out above. The officer’s affidavit references a second undated request which, based on the affidavit’s chronology, may have been made somewhere between May 28 and June 4, 2021. In any event, the affidavit does not indicate whether these units undertook to make such “additional and frequent checks”, and if they did, whether they in fact checked these areas, how many times, and what came of these checks.

[34] Finally, D/C Ellis’s affidavit reveals that on June 4, 2021, shortly after the events in question, an anonymous source provided the police with a new contact number for the accused, addresses in the Lawrence Heights neighbourhood that the accused frequented when in the area (which the police do not appear to have checked out), and information that he was aware that the police were looking for him and had actively fled the area. The police did not contact the phone number provided, stating that the number was not believed to be widely known, resulting in concerns about protecting the identity of its source. Given that the number was voluntarily provided by the source, it seems incongruous that the source was concerned about the police making use of the number. The affidavit does not indicate whether the source shared this concern, or identify the basis of the belief that it was not widely shared.

[35] There is also no indication that the police attempted to contact Mr. Smith by phone using his number at the time of the events. The evidence adduced on the voir dire included text messages between the accused and the complainant dated May 25 and May 27, 2021. The accused was clearly using the number reflected there at the time the arrest warrant was issued. I do not know when the police received these messages from the complainant, but even if they had not yet received them around this time, it would surely have been easy to ask Ms. Henry for his telephone number or for other information relating to his whereabouts. She was co-parenting with Mr. Smith and they clearly communicated about their child at the time of the events – as was relayed to the police in her police statement. While she blocked Mr. Smith within a few days of the events and no longer wanted contact from him, I expect she would have had some information about his whereabouts, or at least about means of contacting him. The affidavit does not set out what inquiries were made of Ms. Henry regarding Mr. Smith’s whereabouts or contact information.

[36] Ultimately, D/C Ellis was contacted by the Central North Correctional Center on August 31, 2021, who advised that the accused was in custody for unrelated offences. There is no evidence that anything was done to locate the accused between July 23 and August 31, 2021, when the police received a “courtesy call” from the correctional center. Toronto police took over custody of the accused at that time and held him on the present assault charge.

[37] It is also not clear as of what date the accused came into the custody of the authorities. Of course, while in custody, the accused is incapable of evading or avoiding execution of the arrest warrant. This was the conclusion the court came to in R. v. Nurse, 2017 ONCJ 648, where the accused was in custody for some time prior to arrest on the charges before the court, following some efforts made to locate him. In Nurse, the police had verified some addresses they had on file for the accused, but not all of them. The court concluded that beyond checking local addresses where the applicant might have been found, the steps taken by police were “woefully hollow if not non-existent”. It therefore found that there was no discrete event that would reduce the net delay below the presumptive ceiling.

[38] Mr. Smith was not outside Canada, and indeed the information the police had was that he was still in Ontario. It is also unclear from the evidence that he was no longer residing at his last known address – his mother and another female merely advised that he wasn’t home when police attended on May 25 and 28.

[39] In some cases, like in R. v. Sundralingam, 2017 ONCJ 400, the police efforts were deemed insufficient where the only step the police took was effectively to put the arrest warrant on CPIC. I recognize that that was not the case here. I also do not quarrel with the Crown’s suggestion that officers were busy and had other matters to attend to.

[40] Nevertheless, the evidence led is unsatisfactory and does not enable me to sufficiently understand the steps that were taken and whether they can be deemed sufficiently reasonable and diligent. Said differently, the gaps in the evidence leave me unable to conclude that diligence was in fact exercised. The present situation is similar to that in R. v. Stuart, 2017 NSPC 62, where the lack of evidence relating to some of the steps taken or not by the police to locate the accused prevented the court from concluding that the efforts that were made were diligent and reasonable.

[41] Did the police ask Ms. Henry for his phone number? Did they consult police databases to see if he was involved with police in other jurisdictions? Did they verify whether the accused was on a release order? Or on probation? Did they even post the arrest warrant to CPIC? I cannot speculate in the absence of evidence.

[42] The Crown argues that the defence did not seek to cross-examine D/C Ellis on her affidavit. But it is not up to the defence to remedy gaps in the evidence led by the Crown. Leaving aside hearsay concerns raised by the defence – which the Crown put to rest by asserting that the disputed statements were not being led for the truth of their contents – the defence did not dispute the actions taken by the police as set out in the affidavit. It simply took the position that these actions were unclear in some respects and were on the whole insufficient. It was up to the Crown to lead the evidence it wanted to lead on this issue, not for the defence to fill in the gaps.

[43] Moreover, the accused has adduced evidence that a possible avenue of inquiry the police did not pursue would have provided useful information: following up on his outstanding charges in Barrie. If the accused in fact has any burden of showing that certain police inquiries might have led to a speedier recovery, as suggested by R. v. Singleton, 2014 BCCA 232, he has in my view discharged it.

[44] The police received information that Mr. Smith was possibly in Barrie. Toronto police requested the assistance of Barrie police to locate him. The only information before the court is that Barrie police checked hotels in the Barrie area. Given that Mr. Smith was facing charges in Barrie at the time, I would expect the Barrie police – if not the Toronto police – to be in the position of identifying that without too much difficulty. I do not know whether Barrie local records systems were consulted, and if the information was located, what if anything Barrie police did with it. As the defence submits, the police could have checked to see whether there were any upcoming court appearances, and whether Mr. Smith had counsel. They could have verified whether a release order or designation of counsel identified an address for Mr. Smith. This would have been an easy way – if not to arrest Mr. Smith – to at least notify his counsel that there was a warrant out for his arrest.

[45] I note that the steps taken in R. v. Rea were far more significant than the ones taken here. There was also no evidence in that case that had additional steps been taken, the police would have been any more successful in bringing Mr. Rea before the courts.

[46] As stated above, when relying on an exceptional circumstance justifying the presumptively unreasonable delay, the Crown must also show that it could not reasonably remedy or prevent the delay arising from those exceptional circumstances.

[47] The evidence adduced does not satisfy me that the delay couldn’t have been prevented to some extent. In any event, as explained below, it is clear that the Crown and its agents could have remedied some of this early delay by acting promptly in discharging its disclosure obligations once Mr. Smith had been located. It did not.

[48] As such, even if I am wrong regarding the sufficiency of the steps taken by police to locate Mr. Smith, the Crown’s failure to even attempt to remedy the exceptional delay – instead compounding it – precludes it from relying on the inability to locate him as an exceptional circumstance justifying the unreasonable delay in this case.

(2) Delayed disclosure and the time between the end of the first and second trial dates (29 days)

[49] Initial disclosure was not provided to the defence until March 2, 2022, more than nine months following the laying of the charge. Additional disclosure was provided on March 24, 2022. That is wholly unacceptable. To provide initial disclosure six months after arrest, as was done here, is too long in and of itself. But when three additional months have already passed prior to arrest, and the Crown is aware that the accused must be brought to trial without undue delay and within 18 months of being charged, to take nine months to provide any disclosure at all is astounding. The Crown ought to have accelerated the matter and made extra efforts to move it along once Mr. Smith was arrested three months in. Instead, six court appearances passed without any disclosure being made.

[50] As it turns out, much remained outstanding following these initial disclosure packages, including videos of the actual incident, and a recording capturing the complainant’s initial report to police, her sworn statement at the hospital that same evening, and other witness statements.

[51] Defence counsel, without explanation, failed to request these items until the second JPT in February 2023. This should not have happened. Complacency no longer has its place in the criminal justice process. All participants have an obligation to move matters forward. However, considering the fact that the missing items were in no way peripheral – indeed they were central to the Crown’s case – it is even more inexplicable that the Crown conducted a Crown pretrial and two judicial pretrials without itself turning its mind to this missing disclosure. Defence counsel’s lassitude is no excuse for the Crown’s failure to expeditiously meet basic disclosure obligations.

[52] In fact, a bystander video and CCTV videos from Toronto Community Housing, both of which captured part of the events, were only disclosed by the Crown three days before trial. The Crown takes the position that the assaults themselves can be made out in these videos.

[53] The evidence is that the police obtained the CCTV videos on May 26, 2021. The bystander video was also first obtained by police around the time of the incident in 2021. The recordings were referenced in the disclosure package yet were never sought by the Crown before the defence specifically requested them. The evidence before me is that the defence requested disclosure. The recordings were without a doubt first party disclosure. The Crown – not Crown counsel on this application or at trial – could not simply wait until the defence identified particular items of outstanding disclosure before discharging its own obligation to disclose relevant material. The Crown has an independent duty to make reasonable inquiries when put on notice of potentially relevant information in the hands of the police, even though the investigating police service has not disclosed this material to the Crown: R. v. Pascal, 2020 ONCA 287, at para. 104. This is especially so when dealing with core disclosure.

[54] The police have a duty to preserve evidence and produce it to the Crown. There is evidence on this application that the CCTV was initially mislabeled and disclosure delayed by “a few mistakes” on the part of the police. It is not entirely clear why the bystander video was not disclosed early on but it does not appear to have been sent from the officer who obtained it, PC Kerr, to the officer in charge, as it should have been. Once it was requested by the defence, PC Kerr did not respond to the officer in charge’s inquiries in a timely manner. The video was eventually recovered by the police and transmitted to the Crown. The Crown only discovered the existence of all these videos four days before trial, and disclosed them on the weekend three days before trial.

[55] I recognize that in R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, the Supreme Court placed an obligation on defence counsel to pursue disclosure diligently, and that “where counsel becomes aware or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive.” Jordan and R. v. Cody, 2017 SCC 31 of course reiterate that message.

[56] The evidence filed by the defence states that “counsel for the Applicant requested the Applicant’s disclosure on October 8, 2022[sic] when speaking with the triage Crown via Zoom, and followed up on this request in the same manner at the next three subsequent court dates.” This was in respect of initial disclosure and the defence did not follow up on outstanding or missing items until February 23, 2023. Moreover, at the first judicial pretrial, disclosure was marked “incomplete,” but the only items specifically identified as outstanding by the parties were SOCO photos.

[57] The defence did not act diligently in identifying outstanding items of disclosure. However, this is not a below-ceiling case where the defence would have the onus of showing that it took meaningful steps that demonstrated a sustained effort to expedite the proceedings. The delay here was also not caused “solely or directly” by the conduct of the defence. While the defence cannot benefit from its own delay-making conduct, I do not find that the actions – or rather, the inaction – of the defence, caused the delay. The above-ceiling delay was first and foremost caused by the Crown not attending to its basic disclosure obligations.

[58] The Crown concedes that “items that ought to have been part of the initial package were not yet in the Crown’s possession and therefore were not included.” There is no question that the outstanding items were core disclosure. No prompting should have been necessary.

[59] In other circumstances, the defence’s failure to pursue missing items of disclosure could very well be fatal to its complaint of unreasonable delay. But the outstanding disclosure here was simply too critical and too significant to absolve the Crown of its own paramount duty to diligently make disclosure to the defence and ensure that the matter could be tried without undue delay, in particular in light of the mounting delay in this case. Had the Crown at any time considered whether disclosure was complete, the many missteps by the police could have been remedied earlier on.

[60] The overall passive, complacent approach taken by the Crown – not Ms. Meyers – and police in this case persuade me that the disclosure-related delays must be borne by the state. At court appearances, with the exception of Ms. Meyers on February 18, 2022, it acquiesced to the pace of the proceedings and did not make efforts to move the case forward. It did not conduct its own due diligence by looking over the disclosure, whether it be in advance of Crown pretrials or judicial pretrials, to identify any missing items. While I must also fault the defence for having failed to identify and request outstanding disclosure items in a timely fashion, the Crown has to bear the ultimate responsibility for utterly failing to ensure that this matter could proceed in a timely way.

[61] I also cannot conclude, in light of the rest of the record, that the defence’s complacency on the missing disclosure items constitutes an implicit waiver by the accused of his right to a trial within a reasonable time.

[62] The Supreme Court in R. v. J.F., 2022 SCC 17, at para. 44, made clear that waiver of delay cannot be inferred solely from an accused’s silence or failure to act. An accused must take some direct action from which a consent to delay can be properly inferred. That is not the case here.

[63] Mr. Smith retained counsel as of his first appearance following his bail hearing. After Mr. Montes sent his available dates for a judicial pretrial on July 29, he followed up on August 17, having not yet heard back from the Crown. It is also worth noting that the defence never delayed taking steps in the case on the basis of the missing disclosure. I cannot draw the conclusion that the Crown would like me to draw that the defence was purposely dragging its feet in order to benefit from the resulting delay.

[64] I also cannot fault the defence for failing to bring the delay application prior to the first scheduled trial date. The total delay up to that point did not far exceed the presumptive ceiling, and the defence had no way to know what steps the police in fact took to locate the accused during the first three months following the laying of the charge. That information would make all the difference in assessing whether the 11(b) application had a fair chance of success. When the first trial was adjourned, however, the defence immediately notified the Crown and court of its intention to file the application. It did so prior to the second trial as soon as the transcripts were ready, and cannot be blamed for the inability to have it heard at the outset of the second trial which was – justifiably – the result of the Crown needing time to respond.

[65] By disclosing the key videos three days before trial, in addition to other disclosure up until the morning of trial, the first trial necessarily could not proceed on the April 5 and 6 dates as planned. Some of the late-breaking disclosure included officer will-says regarding lost evidence – another audio and video recording, this time of the In-Car Camera (ICC) system which would have recorded witness statements at the scene and the complainant’s sworn video statement taken at the hospital.

[66] In granting the defence request for an adjournment of the trial, my colleague Justice Faria noted that “to proceed to trial in these circumstances would be unfair to Mr. Smith and a breach of his right to make full answer and defence.” She observed that while the Crown and court were ready to proceed, “the defence is not and legitimately so.”

[67] Moreover, the Crown at trial accepts the defence assertion that the evidence lost by police was the result of unacceptable negligence. Ultimately, the efforts made by the police to preserve and disclose the various recordings in this matter, including the ICC recordings, are problematic. PC Kerr testified that he included the mention “Activated my ICC video” in his police report so that the officer in charge would know to look for ICC footage. This proposed means by which the officer in charge can ascertain the completeness of disclosure did not have the intended results here, whether in respect of the ICC, the CCTV, or the bystander video.

[68] I therefore have no hesitation in finding that the delay between the first and second set of trial dates falls at the feet of the Crown.

[69] To be sure, after the belated defence request for disclosure, the officer in charge who was in attendance at the second judicial pretrial indicated on the record that she expected to have the outstanding disclosure within the next week and a half (that is, by the first week of March). The defence was content with that and would have had time to review the outstanding disclosure and prepare for trial had disclosure been made in accordance with those timelines. There was no suggestion that the defence might seek an adjournment of the trial following its late-breaking disclosure request. Indeed, but for the inadequacy of the Crown and police disclosure efforts leading up to the second JPT, the first trial date would not have been derailed. A third JPT was scheduled for March 16 to ensure disclosure had been made and everything was in order for the April 5 trial.

[70] On that third JPT date, the CCTV footage was deemed to be lost and the defence was to file a lost evidence application in respect of those recordings. The defence was informed that the audio of the witnesses would be disclosed. I take this to refer to the ICC audio recording of witness statements taken at the scene. As it turned out, the CCTV videos capturing some of the events were located and later disclosed, whereas the ICC video later turned into the lost evidence. Both the CCTV videos and the bystander video of the incident – both believed to be missing – were discovered on April 1, four days before trial. These videos of the events would of course have the effect of significantly changing the Crown’s case against Mr. Smith. It is hardly surprising that my colleague deemed the defence adjournment request to be legitimate.

[71] The time between the first and second set of trial dates thus cannot be deducted from the total delay as defence-caused delay.

(3) Time for the accused to consider resolution (21 days)

[72] The only other contentious period of delay is between June 17 and July 8, 2022, when the defence requested time to consider its position on resolution following the June 1 Crown pretrial.

[73] As already indicated, the defence expressly waived the following 21 days to the next court appearance to have even more time to do so. I am not prepared to hold that just over one month (from June 1 to July 8) is an unreasonable amount of time for the accused to consider the Crown’s position on resolution and for counsel to obtain instructions as to how to proceed. It would seem to me to be captured by the time legitimately required by the defence and that is already factored into the presumptive ceiling. As the Supreme Court stated in Cody, at para. 29, “not all delay caused by defence conduct should be deducted under this component” given the time legitimately required by the defence to prepare and present its case.

[74] This is especially so considering that the Crown explicitly “agreed” to the adjournment on that basis at the June 17 court appearance, in no way expressing concern about the delay.

[75] Even if I am wrong in this regard, the period of 21 days does not make a significant difference on the whole.

[76] I find that the net delay is of 657 days or approximately 21.5 months. If I am wrong regarding the main period of delay between charge and arrest, the net delay is of 559 days (over 18 months), and still in excess of the Jordan ceiling for trials in the provincial court. It is thus presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. If the Crown fails to establish both that exceptional circumstances existed and that it reasonably attempted to mitigate the resulting delay, a stay must be entered: Jordan, paras. 69-70, 75 and 81.

(4) Other exceptional circumstances

[77] I have already found that the Crown has not established that the police made diligent and reasonable efforts to arrest the accused following the laying of the charge such that it amounts to an exceptional circumstance. The Crown also argues that if the net delay only slightly exceeds the presumptive ceiling, there should be no difficulty deducting some time for the scheduling of this trial based on the impacts of the COVID-19 pandemic.

[78] While I do not find that the Jordan ceiling was only exceeded by “a few days”, it is worth mentioning that the effects of the pandemic are not a factor that I am prepared to consider in the present circumstances.

[79] There is no indication that any delay in this case was occasioned by pandemic-related issues. Quite the opposite. Once disclosure was made and the parties were ready to set a judicial pretrial, it was held within the month and indeed four days after the Crown responded to the defence request with potential dates. The first trial dates were set seven months away, which is not inordinate. I do not know whether these were the first dates offered. After the first trial was adjourned, new dates were offered beginning only 20 days later. The court was able to accommodate this matter.

[80] This was a straightforward simple assault case. Even if the Crown had succeeded in establishing that exceptional circumstances were responsible for the delay, it certainly did not make reasonable efforts to remedy that delay. Again, it took nine months to make initial disclosure, and nearly two years to make full disclosure.

[81] In conclusion, I am satisfied that the defendant has established a breach of his right to have his trial proceed without unreasonable delay. A stay of proceedings will be entered.

[82] It is regrettable that this application was not heard ahead of trial, prior to requiring Ms. Henry to testify and expending limited court resources hearing the entire trial. But in the circumstances of the delayed and lost disclosure, as set out above, I do not fault the defence for it.

Released: May 31, 2023

Signed: Justice C. Mainville