Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: December 20, 2023 COURT FILE No.: 22-1372

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHABBIR DOSSA

Before: Justice Robert S. Gee Heard on: December 11, 2023 Reasons for Ruling on 11(b) Application released on: December 20, 2023

Counsel: Joshua Mociak and Jeff Milligan................................................... counsel for the Crown Michael Lacy and Sara Little....................................................... counsel for the accused

Gee J.:

[1] On the evening of December 18, 2021, a head on collision between northbound and southbound vehicles occurred on Highway 24 between the city of Brantford and the town of Simcoe, Ontario.

[2] The driver of the southbound vehicle, Norman Tate, died at the scene. His passenger, Kavita Nandall received significant injuries and was transported by ambulance to hospital. The driver of the northbound vehicle, the accused, Shabbir Dossa, was also take to hospital by ambulance, though he was comparatively uninjured.

[3] As a result of an investigation by the OPP into the collision, on January 5, 2022, Mr. Dossa was charged with dangerous operation cause death and dangerous operation cause bodily harm. The Information in this matter was sworn on February 11, 2022.

[4] In July 2022, pursuant to a warrant, the OPP seized vials of Mr. Dossa’s blood that had been drawn on the night of the collision. The blood was analyzed and, after obtaining the results, on September 8, 2022, Mr. Dossa was further charged with impaired operation, over .08, impaired cause death, and impaired cause bodily harm.

[5] The trial commenced on August 2, 2023, with evidence on a Charter Application the accused brought alleging a number of breaches to his Charter rights during the course of the police investigation. The trial was to be completed on December 21, 2023. However, it became necessary to add further days and the end of trial was then scheduled for April 25, 2024. Not long after these days were added and the end of trial extended, Mr. Dossa advised he would be bringing an 11(b) application alleging his right to trial within a reasonable time had also been breached. Just prior to the 11(b) being argued, earlier dates were offered and the trial is now scheduled to be completed February 28, 2024, and the 11(b) application was argued using this date as the anticipated end of trial.

[6] This is 24 months and 17 days since the swearing of the Information on February 11, 2022, or 6 months and 17 days over the presumptive ceiling of 18 months as set out in R. v. Jordan, 2016 SCC 27.

[7] The Crown has argued some of the delay ought to be attributed to the defence. Other delay was the result of exceptional circumstances both in the form of discrete events and that the case ought to be considered to be particularly complex. When time is deducted for these various factors, the Crown asserts the accused’s 11(b) right has not been breached.

[8] The defence argues there is no delay attributable to the defence and, none of the circumstances of this case constitute exceptional circumstances. No discrete events led to delay and the case does not meet the threshold to be classified as particularly complex. As such, Mr. Dossa’s 11(b) right has been breached and he is entitled to have the charges stayed.

[9] For the reasons that follow, I agree with the defence. There has been no waiver by the defence, no delay attributable to the defence, nor are there any exceptional circumstances. There were no discrete events and the matter is not particularly complex. The real reason for the delay in this matter is much more straightforward; it simply took far too long for the Crown to make meaningful disclosure to the accused. As such, I find Mr. Dossa’s right to a trial within a reasonable time has been breached and the charges will be stayed.

Analytical Framework

[10] The analytical framework in a case such as this was set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 initially, and further in R. v. Cody, 2017 SCC 31, and is now well known. The method of analysis may be summarized as follows:

(1) Calculate the period from the time the charge was laid to the actual or anticipated end of the trial to determine “Total Delay”.

(2) Subtract defence delay from the Total Delay, which leads to the "Net Delay". Defence delay may arise from a defence waiver or delay caused “solely or directly” by the defence.

(3) Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

(5) The Crown may rebut this presumption if it establishes the presence of “Exceptional Circumstances”. Exceptional circumstances are those that lie outside the control of the Crown in that:

(a) they are “reasonably unforeseen or reasonably unavoidable” and;

(b) “Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.” Exceptional circumstances fall under two categories: “discrete events” or “particularly complex” cases.

(6) Subtract delay caused by any discrete events from the Net Delay, leaving the “Remaining Delay”.

(7) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the complexity of the case is such that the time the case has taken is justified.

(8) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Stays below the ceiling are expected to be rare and limited.

(See: R. v. Jordan, 2016 SCC 27 at paras 43-86; R. v. Cody, 2017 SCC 31 at paras. 20-25; R. v. J.F., 2022 SCC 17, 2022 SCJ 17 at paras 23 and 27; R. v. Coulter, 2016 ONCA 704 at paras 34-41)

[11] In this case, the total delay is from February 11, 2022, when the Information was sworn to February 28, 2024, the anticipated end of trial. This is a period of 24 months and 17 days, which exceeds the presumptive ceiling of 18 months by 6 months and 17 days.

Analysis

[12] The total delay requires addressing as it significantly exceeds the presumptive ceiling and on its face is clearly problematic. The Crown has argued that there are periods of defence delay and other exceptional circumstances that when properly recognized and deducted, either will bring the matter below the presumptive ceiling, or will justify any amount over.

[13] I will deal first with the Crown allegation of defence delay.

[14] The Crown argues the defence delayed the matter in two ways. In the first, at least 4 months delay is attributable to the defence for improperly using an enhanced designation on the first appearance in the matter, making disclosure requests for material already provided and for declining to conduct crown pre-trials until the accused had non-essential disclosure.

[15] The accused initially retained Daniel Brown to defend him in this matter. Shortly after being retained, on January 14, 2022, Mr. Brown emailed the Crown’s office indicating he was Mr. Dossa’s counsel and requested disclosure. On the first court appearance on March 10, 2022, Mr. Brown’s agent appeared and filed an “enhanced designation” for Mr. Dossa and confirmed that a request for the disclosure had been made but not yet received. Enhanced Designations were introduced during the COVID pandemic in order to grant longer initial adjournments of matters in an effort to limit unnecessary court appearances. When an enhanced designation was filed, the accused would be given a 12 week adjournment. That was done here and Mr. Dossa’s next appearance was scheduled for June 2, 2022.

[16] On the next appearance on June 2, 2022, disclosure had still not been provided and Mr. Brown’s agent again inquired on the record when it may be available. After this appearance, the initial disclosure material was provided to Mr. Brown on June 7, 2022.

[17] In an affidavit filed by the Crown in support of this application, it explains that their internal processing of disclosure on matters is based on an accused’s next court date. What this meant in this case, was that since an enhanced designation was filed, and the matter adjourned for 12 weeks from March 10, 2022, to June 2, 2022, the processing of the disclosure on this matter fell to the bottom of the Crown priority list.

[18] Given this internal process, the Crown indicates the delay in making initial disclosure was a result of Mr. Brown not making further requests for it. The Crown indicates had Mr. Brown made a third disclosure request sometime after the first appearance on March 10, 2022, that likely would have prompted the matter to be moved up the priority list. Since he did not make any further request, the defence is partly to blame for the disclosure not being provided until June 7, 2022.

[19] I find this argument wholly devoid of merit. Disclosure is a Charter protected right of the accused, not a gift from the Crown that an accused has to beg for. The Crown is expected to fulfill its constitutional mandate in a timely manner, especially when it relates to something as basic as providing disclosure. Here, two timely requests were made for disclosure, once by email before and then again at, the accused’s first court appearance. It shouldn't take a third before the Crown responds. As well, enhanced designations were implemented to avoid unnecessary appearances where nothing happens except the defence saying they are still waiting for disclosure. The Crown ought not to expect to be able to rely on court appearances such as that to kickstart the disclosure process. This is exactly the culture of complacency that the Supreme Court in Jordan said had to end. This delay in providing disclosure here, is entirely the fault of the Crown.

[20] When he did receive the initial, approximately 250 page disclosure package on June 7, 2022, Mr. Brown reviewed it and emailed the Crown the same day making further disclosure requests based on what he saw as deficiencies in the initial package. Among the items requested were the notes of all fire and EMS persons who attended the scene. This specific request will be discussed further below as it led to a series of events that the Crown now claims ought to be deemed to be defence delay or alternatively, exceptional circumstances that justify the delay they caused.

[21] Also, it should be noted, several other important items had not yet been disclosed. The accident reconstructionist report and any ITOs used to support warrants obtained by the police were still outstanding. The Crown has conceded these items were crucial to the defence and without them, the accused was not in a position to move the matter forward as they were required before Mr. Dossa could determine how to elect his mode of trial and how to plead.

[22] After this initial disclosure package was provided to the defence and after Mr. Brown’s follow up request was sent, a number of emails were exchanged between Mr. Brown and the Crown over disclosure related issues, spanning the period of June 2022 to November 2022. The Crown is contending that several of the items Mr. Brown requested during this time were either already disclosed or were new requests that came late in the process. The Crown also contends during this period they requested crown pre-trial meetings with Mr. Brown to discuss moving the matter forward and he resisted these attempts.

[23] It is the Crown position that these unnecessary or late disclosure requests, and Mr. Brown’s reluctance to meet, delayed the matter and this delay ought to be attributable to the defence.

[24] Again, I do not see this as the Crown contends. For instance, the Crown contends Mr. Brown kept writing and asking for notes of officers that had already been provided. However, that’s not quite what Mr. Brown was doing. He would write and list all the officers he felt were involved and ask the Crown to ensure their notes were provided and were complete. In some of the Crown responses, it was clear that even though many of the notes were disclosed in the initial package of June 7, 2022, further notes from some of these officers were still being disclosed as late as October 13, 2022. Given this, it doesn’t seem like an unreasonable request by Mr. Brown to write to ensure he has everything.

[25] Another instance relates to the airbag control module (ACM) data. The Crown contends Mr. Brown asked for the “raw ACM data” for the first time on November 14, 2022. This I find is not an accurate interpretation of Mr. Brown’s request. In his June 7, 2022, response, he sought “…the Airbag Control Module information and image of the ACM taken of the Mercedes vehicle.” Then in a further email of August 23, 2022, he wrote that, “The ITOs are crucial, as is the accident reconstruction, and photos, black box data etc…”

[26] A fair interpretation of these requests I find makes it clear he was requesting everything the police extracted from the ACM, whether its phrased, downloaded, imaged, extracted or raw data. It’s clear, everything the police got from the ACM, he wanted disclosed, so the November 14, 2022, request phrased as “raw data”, ought not to have been a surprise to the Crown.

[27] The Crown also contends the defence delayed the matter by not conducting Crown pre-trials sooner and moving the matter toward trial setting. This is also not borne out by the emails. Whenever a Crown pre-trial was suggested, Mr. Brown indicated clearly, he was always willing to talk. However, he would often add that what was preventing the matter from being set for trial wasn’t his unwillingness to talk, it was the late disclosure, especially in the accident reconstructionist report and the ITOs. This is a point even the Crown now concedes. Without this report and the ITOs, the defence was unable to make the most crucial decisions in the case, those being how to elect and how to plead.

[28] There is some confusion over when the accident reconstructionist report and the ITOs were disclosed. The accident reconstructionist report was provided to the Crown on October 13, 2022. There is some information in the materials it was not then disclosed to the defence until November 14, 2022. Other information seems to indicate it was disclosed the same day it was received by the Crown, October 13, 2022.

[29] Assuming without deciding it was October 13, 2022, all involved agree, that this took far too long. The OPP accident reconstructionist, Officer Perriman testified on the Charter application that all investigative steps he needed to undertake, and all information he required, had been gathered by him by December 24, 2021, less than a week after the collision. Once he had everything he needed, he then indicated he spent about 100 hours writing his report. He did not complete writing his report until July 2022 and after completion, as is OPP policy, he sent it for peer review. When that was completed, it was then sent to the Crown, as noted above on October 13, 2022. This was 10 months after he gathered all the information he needed, just over 9 months after Mr. Dossa was arrested and, slightly more than 8 months after the Information was sworn.

[30] Once these materials were received by the defence, they possessed the information they needed to make meaningful decision in the matter and move it forward to trial setting. However, that does not mean that any delay from that point forward will necessarily be counted against the accused. It is recognized that to make full answer and defence, some time is necessary for the defence to prepare and respond to the case. (See: Cody at paragraphs 28 to 32, Jordan at paragraphs 53, 65 and 83).

[31] On December 15, 2022, the Crown emailed Mr. Brown requesting a meeting for them to discuss trial management matters. Mr. Brown agreed and on December 20, 2022, they had their discussions. Following this, the first of a series of judicial pre-trials (JPT) was held on January 12, 2023. Mr. Brown indicate the defence would be arguing several of Mr. Dossa’s Charter rights had been breached, so the JPT judge directed counsel to come up with a litigation schedule.

[32] The parties commenced the preparation of a litigation schedule and a further JPT was held January 27, 2023. After this JPT the parties started the trial scheduling process by providing the litigation schedule to the trial coordinator and discussing dates. An issue arose when Mr. Brown indicated he would like to add a disclosure motion to the litigation schedule concerning the redaction of certain portions of officers’ notes. The Crown resisted this request and urged Mr. Brown to move forward with setting the dates. Mr. Brown requested a further appearance before the JPT judge to address the issue. As a result, instead of setting the trial dates on the record as was anticipated on February 2, 2023, they were not set and a further JPT was scheduled for February 28, 2023. The trial dates that had previously been arranged though, were held by the trial coordinator.

[33] In the end the disclosure motion was not scheduled as the Crown agreed to provide unredacted copies of the officers’ notes and on March 7, 2023, Mr. Dossa made his election and the trial dates were confirmed on the record. The trial was to commence on April 25, 2023, with 5 days of evidence and argument on the Charter motion and a ruling on that by June 1, 2023. A Garafoli application was to be argued July 6, 2023, then 5 days of evidence on the trial proper starting August 2, 2023, and finishing September 13, 2023.

[34] The Crown is arguing that responsibility for the delay from Mr. Dossa’s first court appearance on March 10, 2022, to when the trial dates were set on the record on March 7, 2023, should be apportioned between the Crown and defence and at least four months of this delay should be attributed to the defence.

[35] The Crown contends the defence was not diligent in their disclosure requests or complacent in how the disclosure process was unfolding, so that even though the Crown shoulders much blame for the late disclosure, some of the blame should be shared by the defence. Support for this request to apportion the delay, the Crown argues can be found in the case of R. v. Zahor, (2022) ONCA 449 at paragraphs 98 to 102, which held the following:

98 In this case, the defence was far from diligent in seeking disclosure. In his correspondence to the Crown, defence counsel parroted comments about the E01 images without explaining what precisely was being sought. Defence counsel did not request assistance with the outstanding disclosure at any of the judicial pretrial hearings. Defence counsel stated on the record that he was awaiting "outstanding disclosure", but said nothing more about what was outstanding. At one point, defence counsel said he had been provided the E01 images, and then reversed that position the next day.

99 In Cody, at paras. 31-35, the Supreme Court emphasized the importance of defence counsel being diligent, and the ways in which defence conduct may be viewed as legitimate or illegitimate, depending on the degree to which defence counsel "actively advance[es] their clients' right to a trial within a reasonable time". The court described, at para. 33, how defence omissions may lead to a finding of illegitimate defence conduct, referring to the following passage from R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes 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. Rather, they must diligently pursue disclosure.

100 In my view, the defence conduct in obtaining the E01 images demonstrated complacency in the delay that accumulated. On the record, it is not clear that defence counsel even knew what was being requested, let alone that the Crown could understand how to discharge its disclosure obligations. Against that factual context, the trial judge's decision to apportion the 7.5-month delay equally - attributing 3.75 months to the defence - was free of error.

101 The appellant argues that the trial judge was not legally entitled to apportion any part of the hard drive issue as defence delay because it was not "solely" caused by the defence - no doubt a reference to Jordan, at para. 66, that defence delay includes "delays caused solely or directly by the defence's conduct".

102 I respectfully disagree. In some cases, it will be "fair and reasonable" to approach a given period of delay by apportioning responsibility between the Crown and the defence: see R. v. Boulanger, 2022 SCC 2, at para. 10; R. v. K.J.M., 2019 SCC 55, at para. 96. In all cases, a contextual approach is needed to determine the extent to which the defence conduct is the "sole or direct" cause of delay: Hanan, at para. 56, referring to R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46.

[36] Although I accept as the Court of Appeal held in Zahor, that there can be situations where delay while disclosure is still being made can be apportioned between the Crown and defence, I do not agree that it is appropriate to do so in this case. As already stated above, the delay in the initial disclosure package not being made until June 7, 2022, is in no way attributable to the defence. As was the delay in getting the accident reconstructionist report and the ITOs. The late disclosure of these critical items of disclosure also lies squarely at the feet of the Crown. Contrary to the efforts of counsel in Zahor, Mr. Brown, I find was diligent in his requests and in making what he was requesting of the Crown known and understood. There was no complacency on the part of the defence. Throughout Mr. Brown was diligent in his efforts to get the disclosure to which the accused was entitled and he was consistent in his efforts to move the matter forward.

[37] I also find that the period of time between Mr. Brown receiving the accident reconstructionist report and the ITOs in October 2022, to December 2022 when discussions with the Crown and JPTs were scheduled, is not delay attributed to the defence. This is the type of preparation time required in a matter such as this as recognized in Cody and Jordan above. Further, Mr. Brown made it clear several times in his correspondence with the Crown that when he did receive the accident reconstructionist report, he would be providing it to his expert for review. These are reasonable steps taken in what I find is a reasonable timeframe so are not properly classified as delay attributable to the defence.

[38] Similarly, the issue of the disclosure motion in the end did not impact the dates set. As noted, the motion was rendered moot when the Crown made the disclosure of the unredacted notes and the trial coordinator had held the dates previously targeted, so in the end the trial dates set, were not delayed due to the disclosure motion issue.

[39] From the date the accident reconstructionist report and the ITOs were disclosed in October 2022, that being the point where the everyone agrees the defence had the information necessary to make critical decisions, to the first day of trial of April 25, 2023, is just over 6 months. In the circumstances, that is, if anything, a very swift response to the matter and more than reasonable. I find, none of the delay, to the date the trial dates were set on March 7, 2023, is attributable to the defence.

[40] As part of the litigation schedule, the accused was required to file his Charter Application by April 1, 2023, and although he indicated it was a tight timeline, Mr. Brown filed the application as required. The Crown was then required to file its reply by April 12, 2023.

[41] One of the Charter breaches alleged by the accused was that the police ought to have obtained a warrant, prior to obtaining the records of the ambulance attendant who treated Mr. Dossa at the scene on the night of the collision. The OPP had not obtained a warrant but had made a request for the records and cited as authority sections 43(1)(f) and (g) of the Personal Health Information Protection Act, SO 2004, c 3, Sch A.

[42] In response to this request, in July 2022, the OPP received the records pertaining to Mr. Dossa. When the records were reviewed, the officer in charge, Officer Monaghan noticed the ambulance attendant who treated Mr. Dossa the night of the collision indicated she detected the faint odour of alcohol. This was the first indication in the investigation that alcohol may have been a factor. When he noticed this, Officer Monaghan then obtained a warrant to seize vials of blood that had been drawn from Mr. Dossa at the hospital for medical purposes and which the night of the collision, police had applied seals. Once obtained, the blood was sent for analysis, and it is alleged the result revealed an excessive concentration of alcohol in Mr. Dossa’s blood. This then led to the additional, more serious charges of impaired cause death, impaired cause bodily harm and the other alcohol related charges to be laid.

[43] As noted earlier, in Mr. Brown’s disclosure request of June 7, 2022, one of the items he requested was “…notes from all Fire/EMS who attended the scene on December 18, 2021.” The Crown then in turn, on June 10, 2022, wrote to Officer Monaghan and requested he provide amongst other items “EMS/Ambulance Report/Notes.”

[44] The Crown in its responding materials to Mr. Brown’s Charter Application, took the position the OPP were justified in obtaining the records of Mr. Dossa from the ambulance attendant without obtaining a warrant because Mr. Brown’s disclosure request constituted a waiver of Mr. Dossa’s privacy interest in the records. When Mr. Brown saw this in the Crown’s response he emailed the Crown on April 17, 2023, to advise the disclosure request was in no way a waiver of any Charter protected right of Mr. Dossa and if the Crown persisted in this argument, it would require him to seek to be removed as counsel for Mr. Dossa. This was because he would need to be a witness in the matter and testify why he made the request as he did, and that in doing so, he did not waive any rights of Mr. Dossa, nor did he have instructions to.

[45] The matter was then brought before the court on April 21, 2023, four days before the trial was to start on an urgent basis to seek the court’s direction. The matter was addressed in the morning and Mr. Brown explained his position. After some back and for the between the parties and the court, I indicated although I found the Crown’s position “novel”, based on the evidentiary record then before me, I could not prevent the Crown from arguing it. Mr. Brown then suggested the matter be held down until the afternoon to give the Crown further time to consider its position, as this would delay the trial were he to be removed as counsel. The matter was addressed again in the afternoon and the Crown indicated they were not changing their position. As a result, Mr. Brown sought removal as counsel for Mr. Dossa and his request, given the position he was in, was granted.

[46] The nearest upcoming trial dates were then vacated to give Mr. Dossa an opportunity to seek new counsel. Most of the later dates then scheduled, were preserved in the hope some could be used when new counsel was retained. Current counsel, Mr. Lacy and Ms. Little were retained shortly thereafter and they were able to bring themselves up to speed on the matter in short order, to the point where some of the later dates already scheduled, were able to be salvaged. As a result, as noted earlier the trial commenced with evidence on the Charter Application on August 2, 2023. Dates to complete the matter were obtained and the trial was then expected to be completed on December 21, 2023, some three months later than initially anticipated.

[47] The Crown contends this three month period should also be characterized as defence delay. The Crown position is they did not seek Mr. Brown’s removal and the issue that prompted his decision to remove himself from the case, arose as a direct result of his disclosure request and the way he worded it.

[48] I again disagree with the Crown on this point. This is not, I find delay attributable to the defence. In order to explain this finding, it will be necessary to assess the merits, to a degree, of the Crown contention that Mr. Brown’s disclosure request constituted a waiver of Mr. Dossa’s Charter protected right. It is important to assess it not only to address the Crown’s argument that it is delay caused by the defence, but also because the Crown has argued in the alternative, this was an exceptional circumstance. Both that it was a discrete event and is one of several issues that ought to cause this matter to be viewed as particularly complex, which ought to justify the delay in excess of the 18 month presumptive ceiling.

[49] I will address exceptional circumstances later, but I will set out now, the arguments of the Crown as to how this issue impacted the overall course of the litigation. The Crown argues the request, worded as it was by Mr. Brown, set off a cascading series of events that that ultimately impacted the course of the litigation in ways no one could predict when the request was made.

[50] The starting point is, as result of the request, the Crown directed the police to obtain the records. The police got the records and notice the reference to an odour of alcohol. This prompted the obtaining of the warrant for Mr. Dossa’s blood and its analysis. The results of the analysis then triggered the laying of new, more serious charges, well after the proceedings had been commenced. The Crown position is that had Mr. Brown not made this disclosure request as he did, it is likely Mr. Dossa would never have been charged with the alcohol related offences and the litigation would have proceeded much more efficiently.

[51] The Crown further contends given how Mr. Brown worded the request, without limiting it to the records of the deceased and the injured passenger in the other vehicle, and without explicitly indicating he was not waiving the rights of Mr. Dossa, their position in response to the alleged Charter breach, was reasonable.

[52] The Crown reasoning is that although they do not fault or question Mr. Brown’s judgement in making the decision to remove himself from the record as he did, it was unnecessary. The Crown points out that they did not ask for Mr. Brown to be removed from the record and were content he remain as counsel. They also contend it was not a certainty he would need to testify and if he did, the issue could be addressed then. Then as it played out, he did not testify on the Charter Application. As such, the three month delay that was caused by the change in counsel, should be viewed as defence delay.

[53] The reason I do not agree with the Crown on this, is that I find the decision made by Mr. Brown was a reasoned, measured, good faith response to the situation he found himself in at that point. In fact, there was little else he could do. This argument raised by the Crown, to say the least put him in a very awkward, if not untenable position in relation to his client. It was unlikely to be lost on Mr. Dossa that the Crown was saying but for Mr. Brown’s request, he never would have been facing the added, significantly more serious charges of impaired cause death and impaired cause bodily harm. Whether he was forced to testify or not, this placed Mr. Brown in an untenable situation that all but forced his decision. It is also clear that, in the circumstances, the prospect of Mr. Brown testifying was real. Whether it came to fruition or not, the situation he was in in relation to Mr. Dossa, made his decision to asked to be removed, the proper thing to do in the circumstances.

[54] Given that there are no periods of delay waived by the defence, and I have found none of the delay caused by or attributable to the defence, there is no defence related periods to deduct from the total delay. As a result, the net delay is 24 months and 17 days. Since this exceeds the presumptive ceiling by 6 months and 17 days, the burden shifts to the Crown to justify this delay by establishing exceptional circumstances.

[55] Exceptional circumstances that justify a matter exceeding the presumptive ceiling were defined by the Supreme court in Jordan at paragraph 69 as follows:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[56] The Court in Jordan recognized that generally, exceptional circumstances came in two forms; discrete events, and particularly complex cases. (See par. 71)

[57] Discrete events are unforeseeable or unavoidable developments which lead to delay that could not reasonably have been mitigated by the Crown. This analysis is quantitative: delay caused by discrete events is subtracted from the net delay. (See: Jordan paragraphs 73 and 75, and R. v. Pauls 2020 ONCA 220, par. 21)

[58] Exceptional circumstances in the form of particularly complex cases that would justify a trial exceeding the presumptive ceiling were described in Jordan at paragraph 77 as:

As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[59] The Crown argues there are both categories of exceptional circumstances in this case. The delay caused by Mr. Brown’s removal as counsel, delay caused by missing a day of evidence due to the illness of one of the Crown prosecutors, and the delay caused when an issue arose about the evidence of one of the witnesses, Sergeant Pollard, all should be recognized as discrete events. Additionally, the case should be classified as particularly complex, given the Charter and evidentiary issues that complicated the matter.

[60] In find that there were no exceptional circumstances in this case, of either category. I will address first the Crown’s discrete events claim, starting with Mr. Brown’s removal from the record.

[61] This argument, that the accused had waived his privacy rights, should never have been made, given the context of how this matter had unfolded to the time the Crown was preparing its responding materials. As noted earlier, on the limited evidentiary basis that was before the court when it first arose on April 21, 2023, I described it then as a novel argument. Now, after the evidence has been heard on the Charter Applications, that opinion has not changed. If anything, it has even become clearer this was an argument by the Crown that was doomed to fail from the outset. Although this shouldn't be viewed as a final ruling on the issue, as I recognize I have not heard final arguments, this was a position taken by the Crown that had very little chance of success and this should have been clear to the Crown.

[62] There are several reasons for reaching this conclusion. As was pointed out by Mr. Lacy during argument on this 11(b) application, starting with first principles, disclosure requests by the defence are limited by their nature. In the more than 30 years sine the Supreme Court confirmed an accused’s right to disclosure in R. v. Stinchcombe, [1991] 3 S.C.R. 326, subject to limited exceptions, the accused is only entitled to disclosure of items in the Crown’s possession. Again, subject to some exceptions, for the most part if the Crown is not in possession of an item, they are not required to disclose it. A corollary to this, is that the defence are not entitled to direct the police investigation. If the defence asks for something by way of a disclosure request, and the police have not obtained it as part of the investigation, they are not required to obtain it, simply because the defence have asked.

[63] Next, any waiver of a Charter protected right, must be clear and unequivocal. The request here by Mr. Brown was no where near such. It came as one line item in an otherwise long list of items requested from the Crown in response to the Crown initial disclosure package. If the Crown actually thought this one line in the email was a waiver of a Charter protected right, it was incumbent on them to ask for clarification, before directing the police to engage in something that might reasonably be viewed as an infringement of Mr. Dossa’s Charter protected privacy interest.

[64] It also seems clear from the evidence heard on the Charter application, that at the time the request was made by Mr. Brown, the Crown did not view this request as a waiver of Mr. Dossa’s rights. When the request was received by the Crown’s office, a case management clerk in the Crown’s office, not the prosecuting Crowns themselves, emailed Officer Monaghan and requested he follow up on the items Mr. Brown sought. As noted earlier, in this email, the Crown’s office just simply said “Please send the following: …32. EMS/Ambulance Report/Notes.” Had the Crown actually interpreted Mr. Brown’s request as a waiver, one would think the Crown would have informed Officer Monaghan that he could rely on Mr. Dossa’s waiver of any privacy interest in the records as relayed to the Crown through his counsel, when Officer Monaghan later sought to obtain the records.

[65] When testifying on the Charter Application, Officer Monaghan testified he sought the records because he was requested to do so by the Crown and relied on the sections of the Personal Health Information Protection Act he cited in his letter to the Ambulance Communications Centre. He further testified he was never told Mr. Dossa had waived any of his rights in this regard and any sort of waiver from him never informed any of his actions in this regard. He also testified he cited the Personal Health Information Protection Act, as he had made earlier record requests of the Ambulance Communications Centre and was advised by them, this is what they required in order to comply.

[66] Although he never did testify, Mr. Brown did make comments on the record on April 21, 2023, when this issue was discussed. In addition to indicating his request was never meant to be a waiver of Mr. Dossa’s rights nor did he have instructions to do so, his request for the records was informed by the fact when he reviewed the initial disclosure package, he noticed that the police had already made requests for information from the EMS services. He indicated the disclosure revealed the police had made inquiries, were informed it engaged privacy interests and were then relying on the Personal Health Information Protection Act, in making those inquiries.

[67] The Crown responded on April 21, 2023, by saying they were relying on both the Personal Health Information Protection Act, and the waiver they say Mr. Brown provided. In response to this, Mr. Brown pointed out there was a difference in making a disclosure request to seek things in the possession of the Crown and seeking to direct the Crown to obtain records from third parties. He indicate in making the request as he did, he was only asking for things the police already collected.

[68] It also appears when this matter was being discussed on April 21, 2023, the Crown may have not been aware that Officer Monaghan had made a prior request for information from EMS as he asked Mr. Brown to direct him to that in the disclosure so he could consider it while the matter was held down to give him a chance to reconsider the Crown position.

[69] Knowing all this, when the matter came back after being held down on April 21, 2023, the Crown refused to change its position and indicated it still would be making the waiver argument. This then caused the removal of Mr. Brown.

[70] This argument had next to no chance of success. The request by Mr. Brown was the type of routine disclosure request made in almost all criminal litigation. There was an indication in the disclosure already provided the police may have had this or some items from the first responders already in their possession. In any event, in a case such as this, it would be reasonable to assume the police as part of their normal investigation would seek out information from the first responders to the scene who interacted with all involved, making such a request reasonable even in the absence of a prior indication in the disclosure. As well, no competent defence counsel, which I find Mr. Brown is, would purposely waive a client’s Charter protected interest without much more care and explicit wording. When all these considerations are added to the testimony of Officer Monaghan that he did not rely on any type of waiver, it is obvious this argument was baseless.

[71] Circling back to whether this is a discrete event, I find it is not. Given this constellation of factors, it should have been obvious to the Crown what the chances of success of this this argument were. During the 11(b) argument, the Crown was challenged by defence counsel to produce any authority they have uncovered that would support this argument since it was formulated in April 2023, to the present. The Crown conceded they found none.

[72] It does not constitute a discrete event as it does not meet any of the threshold requirements for an exceptional circumstance in that this issue was entirely within the Crown’s control, the consequence of taking this position was clearly foreseeable, the result was avoidable and the Crown had the ability to mitigate the outcome. The Crown was warned what would happen if it persisted in making this argument and chose to make it anyways. It should never have done so, especially in the context of this case. Even at the point the argument was formulated, the litigation schedule agreed upon and the trial dates then set, had the final date of trial being just over 19 months after the Information was sworn, already above the presumptive ceiling. This argument would only make the delay worse.

[73] Just as the Supreme court warned in Jordan at paragraph 63, that if the defence bring frivolous and baseless applications, the delay occasioned by such will be counted against them, the same reasoning ought to apply to the Crown. Here this was an argument that obviously had little merit that the Crown knew would delay the proceedings. As such, the Crown cannot then expect that the delay caused by making the decision to advance it, be viewed as a discrete event.

[74] Once the matter did proceed with new defence counsel, two other events led to delay that the Crown seeks to have classified as discrete events. The first is one day of evidence was lost due to the illness of one of the prosecuting Crowns, and the second some time was lost hearing evidence as Officer Pollard under cross examination, changed her testimony from what was anticipated by disclosure. This prompted a further disclosure request by the defence that the Crown had to respond to. This ultimately meant additional days had to be added to the trial for the time lost as a result of these events. At first, time was added that would have seen the trial ending April 25, 2024, but just before the 11(b) was argued, earlier dates were found, and the matter is now scheduled to be completed on February 28, 2024.

[75] The Supreme Court in Jordan recognized that the illness of a trial participant, or the recantation by a witness can add to delay that is unforeseeable and unavoidable and therefore properly characterized as a discrete event. However, these decisions are always contextual, and in the context of this case, I find they are not discrete events.

[76] I will deal first with the illness of Mr. Mociak the Crown. Mr. Mociak is the Crown who was assigned primary carriage of this matter. He has been on the file since the start. Several weeks before trial, the Crown brought on Mr. Milligan to assist Mr. Mociak with the matter. Responsibility between various aspects of the trial, including examination of witnesses, was shared between the two Crowns.

[77] On the day Mr. Mociak fell ill, Sergeant Pollard was testifying, Sergeant Pollard was a witness Mr. Milligan was responsible for and he had conducted her examination in-chief. In spite of that, he did not want to proceed that day without the assistance of Mr. Mociak. On any other matter that may have been a reasonable request, however, given where this matter was at the time, it was not. At that time the matter was scheduled to be completed on December 21, 2023. This was already 4 months and 10 days over the presumptive ceiling. Losing a day of evidence would only increase the overall delay. Mr. Milligan is a very senior counsel who has dedicated much of his career, on both the Crown and defence side, to the litigation of alcohol related driving offences. He should have been able to continue with the matter in Mr. Mociak’s absence. If something arose that required consultation or input, it could have been accommodated at that time. But the delay that would be occasioned by the loss of an entire day of evidence was too foreseeable and avoidable so as to prevent this from being viewed in the context of this case, as a discrete event.

[78] Similarly, the change in the testimony of Sergeant Pollard. An unexpected change in the evidence of a witness can amount to a discrete event. However, it has to be unexpected so to leave the Crown in a position that it is unable to remedy the delay. Here, the change in Sergeant Pollard’s testimony was not as unexpected as it first seemed. The change in her testimony was drawn out under cross examination. When explored further it was revealed this change had been discussed between her and the prosecuting Crowns during a preparation meeting prior to her testifying. When this came out in the course of her testimony, the defence then sought to pause their cross examination until the details of what was discussed at the meeting could be disclosed. This led to a loss of trial time in the matter and necessitated further time being sought to make up for it.

[79] Had this disclosure been made prior to Sergeant Pollard testifying, it is likely this pause in her testimony would not have been necessary. In this sense, the delay caused by the change in her testimony was avoidable and for that reason it prevents this from being characterize as a discrete event.

[80] The final manner in which the Crown seeks to justify the delay above the presumptive ceiling, is that the case ought to be characterized as particularly complex. Again, in part the Crown relies on the issue of Mr. Brown’s disclosure request and their waiver argument that resulted. For the reasons already set out, that issue is not an exceptional circumstance and does not factor into this analysis.

[81] The Crown also relies on the length of the trial and the number of alleged Charter breaches to contend this is a particularly complex case.

[82] I find though there is nothing about this case that makes it particularly complex. As noted in Jordan above, complex cases are those that require an inordinate amount of trial time or preparation, voluminous disclosure, a large number of witnesses and perhaps significant expert evidence. Novel or complicated issues, numerous legal issues in dispute or a large number of accused are also factors to consider. (See: Jordan paragraph 77)

[83] This case is not so extraordinary to rise to this level. There is no doubt the charges are very serious and the stakes are very high, however, that can be said about many cases. The disclosure in this case, though significant is not overwhelmingly so. The matter was set to take about 15 days to complete. This included all Charter Applications and the evidence on the trial proper. This is not an extraordinary length of time. It could even be said that anymore, that length of time for a trial, is relatively routine. There were a number of Charter issues to be litigated. However, they all engaged the same issue at their core; that being the authority of the police to make seizures in some cases without warrants and the sufficiency of the warrants where they were obtained. These are not novel issues or explore new, ground-breaking areas of law. They explore ground that is well traveled in modern criminal litigation. The only thing to decide is the application of the law to the facts as found. Granted, some areas of the law may not be as clear as others, such as the police authority to seize the ACM without warrant, but because the law is still evolving in that area, does not necessarily make the litigation surrounding the issue complex.

[84] The fact that this case is not particularly complex, is illustrated best by the fact that Mr. Lacy and Ms. Little were able to come on board, review disclosure, prepare and be ready to start the trial in less than 4 months after being retained. Similarly, Mr. Milligan, did not become involved until just weeks before the trial and he as well was able to prepare and participate and represent the Crown’s interests in the matter very well in a short period of time. This case, though serious and hard fought, is not particularly complex as that term is used in Jordan.

[85] As such, I find that there were also no exceptional circumstances, either discrete events or complexity of the case, that would justify the delay above the presumptive ceiling.

Conclusion

[86] As I have found there are no periods of delay attributable to the defence and no exceptional circumstances, the remaining delay remains where it started, 6 months and 17 days above the presumptive ceiling of 18 months. This finding means that the Mr. Dossa’s s. 11(b) Charter right has been violated and a stay of the proceedings against him is hereby ordered.

[87] This case just took far too long. Unacceptably long. The real reason for the delay in this case, wasn’t the volume of disclosure, the number of alleged Charter breaches or their complexity. It wasn’t because Mr. Brown withdrew from the case when he did. The only reason this case exceeded the presumptive ceiling was a result of the unacceptable and unexplainable delay in the Crown providing disclosure. Had the disclosure, including the accident reconstructionist report and the ITOs, been provided in a timely fashion, by Mr. Dossa’s first appearance or shortly thereafter in March or April 2022, all the issues in this case would have been heard, argued and litigated to finality long before the 18 month ceiling.

[88] This will no doubt be an unsatisfactory result for all. There has now not been any judicial scrutiny of the police conducted that was, based on the evidence heard on the Charter Application, warranted. As well, there will not be a hearing on the merits of the case itself. The family and friends of Mr. Tate and Ms. Nandall deserved better, as does the community as a whole.

[89] On a final note, Mr. Brown’s name has been mentioned many times in this decision and in the materials filed on this Application. In other cases, I may not have referred to him by name. I may have only referred to him as former counsel or the like. I did so here not to embarrass him. On the contrary, I did so because I thought it important to make it clear that I found his behaviour and actions in this matter to be exemplary. Whether it was the intent of the Crown or not, the manner in which the Crown application materials were drafted and how this was argued, may have left some with the impression it was somehow Mr. Brown’s fault Mr. Dossa was charged with the serious offences he was. It was not. I think he represented his client admirably and to the best traditions of the defence bar. He was diligent throughout, on top of the case and the issues and always strived to move the matter forward without compromising his client’s rights. He handled the matter in a manner the court wished all counsel would, but too often is not what the court sees on a day to day basis, and that manner of advocacy displayed by Mr. Brown, should be recognized, not criticized.

[90] For all the foregoing reasons, the charges against the accused, are hereby stayed.

Released: December 20, 2023 Signed: Justice Robert S. Gee