WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 09 26 Court File No.: Brampton Central West 23-31107320

BETWEEN:

HIS MAJESTY THE KING

— AND —

R.M.

Before: Justice S.R. Bernstein

Heard on: September 9, 2024 Reasons for Judgment released on: September 26, 2024

Counsel: Simran Singh, counsel for the Crown Sonya Shikhman, counsel for the accused R.M.

Bernstein J.:

[1] R.M. stands charged with sexual assault, sexual assault with a weapon, to wit, a pillow, and mischief. The charges arise from allegations made by the complainant, who is the Applicant's ex-partner and mother of his son, years after their separation, in the context of a custody battle over the Applicant’s son and on the heels of family court mediation. The charges against the Applicant stalled the custody issues.

[2] He brings an application, through his counsel, for an order staying the charges against him due to a violation of his right to have a trial within a reasonable amount of time, pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, and pursuant to the law enunciated in R. v. Jordan 2016 SCC 27.

[3] Specifically, he submits that although the matter stands below the presumptive 18-month ceiling permissible for a trial at the Ontario Court of Justice, the Defence was diligent in pursuing disclosure and moving the matter along, and that at 17 months, the history of the matter demands that a stay of proceedings should still ensue.

The Legal Framework

[4] Below the presumptive ceiling a stay may issue if the Defence can establish two things: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of both factors, the stay application will fail (Jordan para. 82).

[5] In relation to defence initiatives constituting meaningful and sustained steps, the Court should consider what the Defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the Defence wanted an early trial date. Having said that, the Defence must act reasonably and not perfectly (Jordan paras. 84-85)

[6] As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).

[7] The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).

The Circumstances of the Case

[8] R.M. was charged on June 22, 2023, with various offences. The information was sworn on July 6, 2023, and the first appearance in court was August 23, 2023. On that date, a designation was filed. As such, there was no delay whatsoever in this case regarding retainer.

[9] The day before the first court appearance, the Defence ordered disclosure. On September 6, 2023, an initial disclosure package was disclosed to the Defence. This included a typed written summary of the complainant’s statement, an arrest report, a DVRM report, a summary of the Applicant’s statement, a general occurrence report, and four sets of police memo book notes. The summary of the complainant’s statement is auto transcribed and contains many unclear passages. It is also marked on the first page with a clear warning stating that the contents may not be accurate and that any uncertainties should be resolved by reference to the video of the statement.

[10] The Crown takes the position that this disclosure, particularly the statement summary, was enough to quickly advance the case. In addition, it highlights the technical problem that was experienced by the Defence’s computer systems as having caused 45 days of delay, thus reducing the total delay from 17 months to 15.5 months.

[11] The defence disagrees, submitting that the summary could not be enough to make crucial decisions and to take proper, informed instructions from R.M. What is particularly germane, says the Defence, is the fact that the Crown indicated its desire to proceed by indictment very early on. On October 18, 2023, the formal election occurred. During the very same appearance, the Crown suggested that a crown pretrial be set, and the Defence made it clear they could not move the matter forward without an actual statement. As such, the issue of election became a critical issue.

[12] On November 8, 2023, the matter appeared, and a crown pretrial was set for November 17, 2023, despite the videotape remaining outstanding. The defence wished to set a date a week hence, but the Court insisted on a remand to January, indicating that it did “not need an update at every step in the process”. The matter was put to January 10, 2024.

[13] By that date, a crown pretrial had been completed, yet the videotape remained outstanding, despite numerous requests and assurances by the Crown that the item was coming. The matter of this key core disclosure was placed on the record explicitly. The Crown said more editing was needed and admitted that defence counsel had “prioritized” the issue and “has made efforts”. The matter was at 7 months and the Crown did not think disclosure would take too long, suggesting 2 weeks. The defence asked whether it made sense for a JPT to be set in the face of significant disclosure being outstanding, and Justice of the Peace Hammond decided on a remand to January 31, 2024, hoping that the disclosure would be made and perhaps a pretrial held in the interim.

[14] On January 31, 2024, the matter appeared for the 5th time. According to the Crown, the video had been shared either on January 19 or 22nd, 2023, via evidence.com, not the disclosure hub. In fact, it had been shared on the 22nd, but the Defence erred in its attempts to retrieve it. The issue of election and efficiency was brought up by the agent for Ms. Shikhman. The defence indicated it did not see the disclosure in their computer, but indicated they would check and, on the assumption that it was available, would like a two-week adjournment. However, for the second consecutive appearance, the matter went over further than requested, this time at the insistence of the Crown, to March 13, 2024, an extra month.

[15] At the 6th appearance, on March 13, 2024, the Defence agent announced that a judicial pre-trial had been set for April 8, 2024. The matter was adjourned to April 10, 2024.

[16] At this 7th appearance, the matter went over 2 weeks to get trial dates. The court offered additional time, but both parties were content that the matter be remanded to the 24th of April 2024. A follow up Crown pretrial was also scheduled for April 17, 2024. However, counsel Ms. Shikhman was unexpectedly in Court. She asked the presiding Judge for an indulgence and immediately called the Crown back. Counsel could not get through, and a follow-up call never occurred. (see affidavit of Dylan Gold at tab 4 of the applicant’s application record).

[17] On April 24, 2024, trial dates of May 26 to 30th, 2025, the first offered, had been secured. However, the Trial Coordinator had apparently indicated that pretrial motions could not be set due to an administrative issue. In addition, the Defence agent was not in a position to file a notice of election, so the Court refused to set a date. It is clear that the matter was remanded to June 19, 2024, at the behest of the presiding Justice of the Peace, with an indication that the outstanding issues were to be sorted out by then. Tab 16 of the Application Record reveals that the Trial Scheduling Form indicated that the matter would be a trial and that the accused “makes their election by written submission pursuant to s. 536.2 of the Criminal Code (attached)”. After this appearance, once the Crown confirmed that it was still proceeding with the prosecution despite the trial date being far over the Jordan ceiling, the Defence moved to secure earlier trial dates.

[18] Thus, for the 9th and final appearance, the matter was brought forward to May 29, 2024, to be dealt with in the backlog reduction court, as additional Judicial resources had become available. The crown was available for the first offered dates of November 4th to 8th, 2024. The Defence was not. The Crown was also available for the 2nd offered series of dates from November 25, to 29, 2024. The defence, again, was not. The 3rd date offered, the currently scheduled trial date of December 2-6, 2024, was set. Originally, the motion date was set for November 8, 2024, but was brought forward to August 1, 2024, an 11(b) application, August 16, 2024, for a motion for directions, a stage one 276/278 argument for September 19th, 2024. Later, due to defence scheduling conflicts with another case, the Pretrial motions were set for August 27, 2024. However, as this court had an ongoing trial on the 27th, the matter was remanded for 11(b) argument and the motion for direction to September 9, 2024. Both motions were argued that date.

[19] Thus, with the new trial dates set, the total delay falls one month under the presumptive ceiling, seventeen months.

Analysis

[20] The defence did not drag their feet in pursuing core disclosure. It was ordered before the first appearance in court. It was pursued with diligence. Given the Crown’s early decision to proceed by indictment, the evaluation of the complainant’s evidence, both in content and demeanour, were essential, and crucial to any strategy they might employ. How would she present before a jury? What exactly was the content of her statement? What instructions or insight might R.M. be able to provide so that counsel could make the best decision as to the forum of the trial?

[21] Ms. Shikhman pointed this court to examples in the caselaw where the failure of the Crown to make timely disclosure in relation to core items resulted in stays of proceedings even when the presumptive 18-month Jordan ceiling has not been reached.

[22] The applicant’s factum is correct to focus on the following passages which form the basis for a change of direction from the Morin guidelines to the Jordan ones. The concern in Jordan was a “culture of complacency by any party, and the aim of Jordan was to do away with that fundamental problem in the Justice system. At paragraph 33 of the applicant’s factum, it states;

33. In Jordan, the Supreme Court found that to address the culture of delay and complacency, the Crown must deliver on its disclosure obligations “promptly with the cooperation of the police”. ( see Jordan paragraph 138 )

34. As Justice Schreck recently explained in R v Aden, 2023 ONSC 766, the “culture of complacency” that the Supreme Court condemned and sought to confront in Jordan included a “Leisurely approach to disclosure” by the police and the Crown, and that when the charges are serious, this heightens the obligation on the Crown to provide timely disclosure.

35. This Court has likewise interpreted Jordan as a call for prompt disclosure. In R v Hotaki, 2023 ONCJ 261, a sexual assault and assault simpliciter case with one complainant, it took 10 months for the Crown to provide the video statement of the complainant. By not providing core disclosure in a timely manner, Justice Jones found that the Crown had exhibited “the very culture of complacency the Supreme Court warned about in Jordan” and that “seven years after the release of Jordan, not nearly enough has changed.” His Honour stayed the charges.

[23] Recent caselaw has established that simple cases with only one complainant should be resolved far earlier than the presumptive ceiling. In R v Alli, 2023 ONSC 5829, a sexual assault and assault simpliciter trial involving one complainant and a s. 276/278 pretrial records application, Justice Forestell found that about 12-16 months would have been reasonable for such a simple case once it reached the SCJ. The actual delay in the SCJ was 22 months. The Court stayed the charges.

[24] This Court finds that meaningful and sustained efforts were employed by the Defence in an effort to expedite the proceedings. As Justice Harris of the Brampton Superior court of Justice said in R. v. Belle [2018] ONSC 7728 at paragraphs 41 and 42;

[41] The rationale behind the requirement for the Defence to take steps to hasten the case through the system is that because cases over the threshold benefit from a presumption, cases under the ceiling exhibiting delay should be strictly proven Jordan, at para. 85. Slightly restated, the purpose is to ensure that the Defence does not reap a windfall in a case in which they have not been eager to minimize delay. The purpose may also be to ensure that underlying prejudice, the motivating force under Section 11 (b), is actually being incurred. However, the full context demonstrates that the Defence failure in this case to ask for an earlier date or to complain about the delay was not a tactic to earn an advantage for the accused nor was it a sign that there was no ongoing prejudice to the applicant.

[42] The misstep by the Defence is not enough in full context to demonstrate a failure to take reasonable, sustained, meaningful steps to have this trial heard promptly. It does not outweigh or cancel out the continuous course of conduct and co-operation evident throughout the proceedings. At the crucial set date, they could have pressed for an earlier date. However, when counsel said that the delay had been a result of late disclosure, it was abundantly clear that he was not lying in the weeds waiting to pounce on a Section 11 (b) application to benefit the client. The defence did not act perfectly but they did act reasonably.

[25] I find that the first prong of the test for cases below 18 months has been met. The defence did indeed take meaningful steps demonstrating a sustained effort to expedite the proceedings.

[26] It is the second prong of whether the case has taken markedly longer than it should have that is the real battleground in this matter. In Racanelli, 2022 ONCJ 390, my sister Justice Dellandrea observed at paragraphs 50 to 52.

[50] More obviously and importantly, the Crown’s submission misses the crucial point that statement summaries prepared by the police are not evidence. A summary is understood to be something other than a complete, accurate or verbatim transcript of a recorded statement. Regardless of how lengthy or detailed a summary purport to be, it remains the case that the accuracy and utility of any summary can only ever be verified by comparison to the original, complete recording. The well-recognized potential for inadvertent mistakes or omissions in any kind of summary underpins the requirements of certified court transcripts and emanates the best evidence rules.

[51] The Crown’s disclosure obligation compels them to provide the accused with all relevant materials within their possession in a timely fashion. The provision of unverified summaries neither relieves them of this duty nor makes the Defence’s continued requests for the originals remotely “illegitimate” conduct, attracting of defence delay.

[52] Logic and fairness dictate that the Crown bears the responsibility for this delay. It would be a perverse result to characterize this time period as defence delay, as the Crown suggests, on the basis that the Defence chose to repeat their requests for the most central piece of disclosure, as opposed to scheduling a Judicial Pre-trial to “call them out” for not having provided it. The Crown cannot in one breath admit to having inexplicably lapsed in their disclosure obligation of the most material piece of evidence for almost a year, then deny the responsibility for the delay it caused in the next: Frail, 2017 ONSC 5886 at para. 44 per Justice Shreck; Kande, 2020 ONCJ 446 at para. 10 per Justice Rahman.

[27] Further, my sister Judge Mulligan, in R. v. Gutnik, 2023 ONCJ 274, at paragraph 9, said the following;

I do not agree with the Crown’s submission that a Crown pretrial could have been conducted using the police generated 1-page summary of each of the complainant’s video-taped statements. Those 1-page summaries were disclosed on October 29, 2021. I find that disclosure of the complainant’s video-taped statements was fundamental to each party’s ability to conduct substantive Crown and Judicial pretrial meetings. Both such meetings are required in this jurisdiction to set a hearing date. Given the time frame of the sexual assault charges as contained in the Information, without knowing exactly what the complainant had alleged, the Defence would not be able to make informed decisions as to mode of trial and/or the type of evidence to be presented and neither party would be in a position to know whether s.276 or s. 278.1 Criminal Code applications would be required.

[28] See also Justice Mulligan’s words in R v Ferreira, 2023 ONCJ 294 at paras 9-10; “there is no value to any pretrial meeting unless both parties are in possession of substantive disclosure and are prepared to make decisions as to how a hearing is expected to unfold. Without the complainant’s full statement, the Applicant would be hard pressed to make any substantive decisions at a crown pretrial”.

[29] My brother Justice Blacklock, sitting here in Brampton, on the case of R. v. Malhi, 2021 ONCJ 565, had occasion to consider this issue as well. He found that delaying the setting of the Judicial pretrial in order to receive actual statements, rather than summaries, was not helpful to the Defence’s position. However, a crucial distinction between that case and the one at bar is that there was no decision to be made on election. The Crown had elected summarily. With regard to R.M., as stated above, the decision as to the forum of trial was crucial to the proper functioning and utility of the pretrial.

[30] The Defence further submits that the case of R. v. C.A., 2024 ONSC 1603, is helpful to their position. In that case, Justice Harris, sitting as an Appellate court in Brampton, recently considered this issue. He found that simple disclosure in possession of the police when the accused is charged should be provided on the day of the charge. His Honour gave an allowance, however, for administrative backlogs and found that “a conservative estimate for disclosure in this case is one month”: see paras 63-64. Due to these serious disclosure issues and the failure to mitigate them, Justice Harris upheld the stay of proceedings ordered in this Court of the sexual abuse prosecution against the applicant.

[31] Ms. Shikhman further asserts that even where disclosure consists of an ITO that requires careful vetting due to the involvement of a confidential informant, a delay of six months is considered markedly too long to provide the disclosure. By that standard, the delay in providing complainant statements in the Applicant’s case took more than markedly too long. This disclosure was not voluminous or complex. It did not need to undergo a special vetting process. It was essentially a matter of copying and pasting the files. Yet, it took seven months from the arrest date to provide this disclosure to the Defence. The defence states that this delay in providing essential and noncomplex disclosure took markedly longer than necessary.

Time Frames to be Considered

[32] In determining the actual total delay in this matter, two blocks of time are germane in this Court’s estimation. The first is the delay from when the video was finally disclosed by the Crown until defence realized that it had been forwarded and therefore downloaded. (January 22, 2024, until February 26, 2024). Appended onto this, the Crown says, is the time between February 26 and March 7, 2024, when Defence Counsel scheduled a judicial pretrial. This appears to be the one misstep in the otherwise sterling efforts to expedite the matter and keep the pressure on the system to receive disclosure. This caused a delay in the momentum of the case and a pretrial was conducted later as a result. What am I to do with this period of time?

[33] It is germane to the analysis that when the matter was before the Court on January 31, 2024, the Defence sought to remand the matter only two weeks, to February 13, 2024. Upon hearing that the video statement had been shared on evidence.com, the Defence agent attempted to share counsel’s email with the Crown, given that the Defence had not seen the disclosure. The Crown declined to send the tape directly to either the agent, Mr. Gold, or Counsel, Ms. Shikhman. At page 5 of the transcript, Mr. Gold said, “To speed things along, I’ve also put my email as my zoom name here. So, if there’s a link, my friend is free to just take that down”. It was the Crown that suggested a lengthier adjournment, to March 13, 2024. The Crown in Court that day, Mr. Ng, said “I can’t share disclosure with you directly Mr. Gold. That’s not how it works here. But I-looking at scope and …. the videos have been shared with Counsel through evidence.com” At page 6 of the transcript, Mr. Gold said “So, Your Worship, assuming for the sake of argument that the disclosure is there, can we put this over two weeks so that Counsel can review the new disclosure and take next steps?” The Crown, Mr. Ng, replied “No no Your Worship. If we could put it still to March 12”. The defence acquiesced to the request.

[34] I find that if the Crown would have shared the video by simply sending the link to R.M.’s lawyer’s office, the resultant delay would not have occurred. Even a shorter adjournment, as requested by the Defence, may have saved time. As such, I find that this delay does not fall solely at the feet of the Defence, save for the two weeks the Defence requested originally. Therefore, I deduct 14, and not 45 days from the total delay.

[35] The other time frame where the case experienced some delay is in regard to the 2 sets of dates offered by the Court on May 29, 2024, which were earlier than the current trial date of December 2-5, 2024. These were November 4-8, 2024, and November 25-29, 2024. The Crown was available for both earlier dates while the Defence was not. However, the Crown conceded in its factum that the total delay is 17 months and seeks to deduct only the 45 days mentioned above. As such, the Court declines to deduct the one month where the Defence was not available.

Calculations and Findings

[36] The total delay in this matter is 17 months or 519 days. The Court deducts two weeks or 14 days for defence delay, leaving 505 days. 505 days divided by 30.417 equals 16.60 months, just over 16.5 months.

[37] The Court holds that;

1. The Defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings.

2. Despite the matter being 1.5 months or 45 days below the presumptive Jordan 18-month ceiling, given the lack of complexity in the matter and the history of it which is detailed above, the case did take markedly longer than it reasonably should have to reach a trial date.

[38] Accordingly, I find that this is one of those rare cases where a stay should be granted below the 18-month ceiling.

[39] It is never a pleasant feeling when a serious matter such as this one is not decided on its merits. The police and Crown Attorney’s office have worked hard to investigate and prepare the case for a prosecution. No doubt, the complainant has felt anxiety and will be very disheartened by this result. Yet, the law relating to the right to a trial within a reasonable time is clear. Each defendant who comes before the Court deserves the protection of the Charter, no matter which section is under consideration, including 11(b).

[40] The charges against R.M. are hereby formally stayed.

Released: September 26, 2024 Signed: Justice S.R. Bernstein