Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024-12-03 COURT FILE No.: Brampton 22-31106523

BETWEEN:

HIS MAJESTY THE KING

— AND —

MICHAEL TURCIOS

Before: Justice Erin S. Thomas Heard on: November 25, 2024 Reasons for Judgment released on: December 3, 2024

Counsel: Mostafa Hassan, counsel for the Crown Leah Shafran, for the defendant Michael Turcios

Thomas J.:

[1] The Applicant, Michael Turcios, brought a motion for a stay of proceedings under s. 24(1) of The Canadian Charter of Rights and Freedoms (The Charter) asserting that his right to a trial within a reasonable time, as protected by s. 11(b) of The Charter has been breached. The Respondent opposes the application and submits that the delay falls entirely at the feet the Defence.

Factual Background:

[2] The timelines in this matter are straightforward and uncontested. The information laying the charges against Mr. Turcios was sworn on October 17, 2022. Mr. Turcios retained counsel ahead of his first appearance and the case proceeded through the case management system.

[3] His first appearance was on December 16, 2022 at which time agent for counsel appeared and initial disclosure, including a 911 call and charge screening form were provided to counsel. [1] The matter was adjourned to February 13, 2023 for further disclosure.

[4] On February 13, 2023 agent for counsel appeared and requested further disclosure. The Crown advised further disclosure was sent off in the morning, and some 11 pages of disclosure were received by the Defence that day. [2] The matter was adjourned to April 17th, 2023 as the Defence continued to await full disclosure.

[5] On March 7, 2023 Ms. Shafran booked a crown pre-trial using the Appointlet online booking system for March 28, 2023 at 9am. [3]

[6] On March 10, 2023 Ms. Shafran sent an email to the Brampton Virtual Crown address requesting the following items of disclosure [4]:

• Video from the DRE room
• BWC Footage, or confirmation none exists
• SOCO Photos, or confirmation that none exists
• Statement of Loau Abu Nasar
• Statement of Ahmed Saleh
• Statement of Mohammad Saleh

[7] On March 22, 2023 the Virtual Crown responded advising the appropriate staff had been notified and the letter had been added to the file. [5]

[8] On March 28, 2023 a Crown pre-trial took place. Additional video disclosure was also released to Ms. Shafran on the same day, she received an email notifying her of the same at 10:52 am.

[9] Agent for counsel appeared on April 17, 2023 and advised the court about the ongoing issues with outstanding disclosure and the matter was adjourned to June 19, 2024. [6]

[10] On June 5, 2023, Ms. Shafran scheduled a second Crown pre-trial meeting for June 12, 2023 at 9 am. [7] The pre-trial was held as scheduled and that same day Ms. Shafran scheduled a judicial pre-trial for July 19, 2023.

[11] On June 19, 2023, the matter was adjourned to August 14, 2023 a date following the scheduled judicial pre-trial

[12] A judicial pre-trial hearing occurred on July 19, 2023 and a trial scheduling meeting was booked that same day for July 25, 2023. [8]

[13] Trial dates were initially scheduled for November 12-13, 2024, dates as early as August 2023 were offered by the court but unavailable to the Crown. [9]

[14] On October 27, 2023 the Applicant received correspondence from A/Regional Senior Justice Leitch and the Crown’s office that the matter was brought forward to minimize delay and schedule earlier trial dates, if available to the parties. As a result of this initiative, new earlier trials were scheduled for April 10 and 11, 2024. It should be noted two earlier trial dates were offered for November 28 2023 and January 31, 2024, however those dates were not available to the Defence.

[15] On March 18, 2024, the assigned trial Crown contacted Ms. Shafran and advised:

“I noticed some BWC footage that we have a DPN for, but it does not appear share access was given on e.com. I believe a download link may have been sent in the past? I have now resent a download link to the footage there”

[16] This link contained BWC footage from two police officers, and two civilian statements.

[17] Ms. Shafran was away at the time of the above email. A response was sent on March 26, 2024 and communication between the two parties occurred. The Crown was not available to discuss the case until April 5, 8 or 9, 2024.

[18] On April 4, 2024 a new trial Crown was assigned and communication between Crown and Defence occurred fairly quickly. Additional notes of witness statements were provided at the time.

[19] It became apparent during this time that there was additional disclosure outstanding, including memo-books and BWC footage from at least one officer who was not named in the witness list. This disclosure would impact a Charter Application to be filed by the Applicant.

[20] Additional police memo book notes and BWC footage from two police officers were provided to Defence on April 9, 2024, the day before the scheduled two day trial.

[21] On April 10, 2024 the trial was adjourned due to the late disclosure provided by the Crown. New trial dates were scheduled that same day, though dates were offered at the end of April and in May they were not available to either party.

[22] Ultimately, March 26, 2025 was scheduled for trial with an s. 11(b) Application to be heard on November 25, 2024.

The Jordan Framework

[23] The Supreme Court of Canada’s landmark decision in Regina v. Jordan [10] sets out the legal parameters for unreasonable delay. In the Ontario Court of Justice, the ceiling is set at 18 months from the swearing of the information. Delay beyond 18 months is presumptively unreasonable and necessitates closer inspection.

[24] The Ontario Court of Appeal in Regina v. Coulter [11] helpfully summarized the legal framework in easy to follow steps:

a) Calculate the total delay, which is from the date of the swearing of the information to the actual end or anticipated end of trial;

b) To calculate the net delay, subtract Defence delay, including delay that is waived by the Defence, from the total delay;

c) Compare the net delay to the presumptive Jordan ceiling;

d) If the delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. If the Crown is unable to do so, a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases.

e) To calculate the remaining delay, subtract, from the net delay, delay caused by discrete events.

f) If the remaining delay exceeds the presumptive ceiling, consider whether the case was particularly complex, so as to justify the time the case has taken and lead to a conclusion that the delay is reasonable.

g) If the remaining delay falls below the presumptive ceiling, the onus is on the Defence to show that the delay is, in any event, unreasonable.

Positions of the Parties

[25] The Applicant asserts that the delay falls outside the Jordan ceiling, that there is no Defence delay and that there are no exceptional circumstances that warrant reducing the delay below the ceiling. The Applicant submit that the delay flowing from the adjournment of the trial falls at the feet of the Crown for failing to provide disclosure in a timely manner.

[26] The Respondent submits that the Applicant’s rights as protected by s. 11(b) of The Charter have not been breached. That any delay flowing from the late receipt of disclosure and adjournment of the first trial dates falls squarely at the feet of the Applicant as the request for additional items was not sent until two days before the start of the trial. The Respondent argues that once this Defence delay is subtracted from the overall total the delay falls below the Jordan ceiling.

Law and Analysis

a) Disclosure

[27] The duty to provide disclosure belongs to the state (the Crown and Police) and it is an ongoing duty that does not end until the case is finally disposed. Save for specific and rare cases (of which this matter is not) this burden does not shift to the Defence. The duty to provide full disclosure is an extension of the constitutionally enshrined right to a fair trial.

[28] The Defence have an obligation to diligently pursue disclosure and they are required to move cases forward, including the scheduling of trial dates without complete disclosure. None of this shifts the responsibility for the provision of disclosure to Defence counsel.

[29] Disclosure should be provided expeditiously, particularly in a case such as this where the investigation is complete at the time the charge is laid. Save for the report of a toxicologist, the investigative steps taken in an 80 plus or impaired driving case are complete shortly after the accused is released from the station. The video evidence, including body worn camera (BWC) footage, breath room video, and station video are complete and available the moment an accused person has left police custody.

[30] In this case, the Crown’s office appeared to struggle with providing disclosure from the beginning. The initial package provided at the first appearance did not contain any video evidence, civilian evidence or even a complete police witness list. Further disclosure was often not sent out until after scheduled set dates or pre-trials. It appears from the record before me, that the court dates and pre-trials were a tickler system for the Crown.

[31] While the Defence have an obligation to diligently pursue disclosure, I agree with Justice Harris’ comments in R. v. Belle [12], the Defence cannot be expected to request material that they do not know exists. The Crown takes the position that the disclosure request sent in on March 10, 2023, was generic as Ms. Shafran did not specify which BWC camera footage she required. This submission is flawed, given the material that had been disclosed at the time of the request, the language used by the Defence was meant to capture the BWC footage of all involved officers.

[32] Furthermore, the lack of particulars does not relieve the Crown of their burden to request from police all BWC footage, or all memo-book notes of involved officers. Nor does it relieve the police of their burden to ensure all relevant investigative material is forwarded to the Crown’s office expeditiously, this includes ensuring witness lists are appropriately updated.

[33] It is unknown when the Crown came to be in possession of the BWC footage that was disclosed on March 18, 2024. The Crown agrees this material was disclosed for the first time on this date, and that it had been in their possession prior to that date. This includes the BWC footage from two police officers Cst. Thompson and Cst. Tong.

[34] The Crown submits that the Defence is to blame for the entirety of the delay (351 days) caused by the adjournment of the first trial date because of their late review of the BWC footage of two police officers and subsequent follow up disclosure letter for additional memo-book notes, and BWC footage that flowed from this review of officers not previously listed in the police witness list. I disagree. This position reflects a deeply flawed understanding of the state’s disclosure obligation.

[35] The Peel Regional Police (PRP) were obligated to ensure that all evidence collected, including all memo-books and BWC footage was promptly disclosed to the Peel Crown Attorney’s office. The PRP also bear the responsibility to maintain and disclose an up-to-date police witness list and ensure that all involved officers are noted therein. They failed to do both in this case.

[36] The PRP’s failure to live up to their obligations does not alleviate the Crown’s office of their own obligations in a prosecution. The Crown was in possession of footage from two BWCs for a period of time and failed to release them to the Defence in a timely manner. The Crown failed to discharge its obligation to provide timely disclosure, despite a request for all BWC footage made at a relatively early stage in the case by the Defence.

[37] Through a timely review by the Crown of the disclosure in their possession the additional outstanding items were discoverable at an earlier stage. This discovery could only have been made by the party who had possession of the BWC footage, the Crown. The Defence cannot be expected to request items they do not know exist.

[38] That the Defence became aware of these relevant outstanding items, and subsequently requested them just before the trial does not shift the responsibility for the delay to the Defence. Nor is it reasonable to expect that the Defence should be able to review and be prepared when the requested disclosure trickles in the eve of trial. [13]

[39] The Crown at large is responsible for the delayed disclosure, particularly items of core disclosure such as memo-book notes and BWC footage from primary officers. Both PRP and the local Crown’s office share responsibility for this failure.

[40] The Crown’s submission that they are only responsible for delay caused by late disclosure if it impacts the initial scheduling of a trial is misguided. This position reflects a culture of complacency cautioned about in Jordan and displays a misunderstanding of the Crown’s duties in the prosecution of criminal trials.

[41] I also reject the Crown’s submissions in this case that timeliness of the follow up request demonstrates a lack of reasonable diligence in pursuit of disclosure. The late-breaking disclosure of footage from two BWCs that the Crown possessed but failed to disclose in a timely manner resulted in the discovery of additional outstanding items of disclosure that PRP had failed to provide to the Crown’s office. [14] The Crown’s argument calls into question their own lack of diligence in disclosing the two BWCs in the first place, and fails to recognize their own responsibility in creating the environment in which the only time to make requests arising from it would be the eve of trial.

b) Defence Delay

[42] The Jordan calculus in this matter is relatively straightforward.

[43] The total delay from the time the information was sworn to the scheduled end of the trial is 893 days, or 29 months and 11 days.

[44] Defence delay must be subtracted from the total delay, this includes any waivers of delay made by the Defence. There have been no express waivers of s. 11(b) by the Applicant.

[45] Other manners of Defence delay include deliberate or calculated actions that delay the trial, such as frivolous applications or an unwillingness to move the matter forward when both Courts and Crown are available and prepared to do so. [15]

[46] The Supreme Court in Cody [16] further clarified:

“The only deductible Defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from Defence action that is illegitimate insomuch as it is not taken to respond to the charges.”

[47] Legitimate conduct is rooted in a change to the culture of complacency by all stakeholders as demanded by Jordan [17]. Determining whether Defence conduct is illegitimate is highly discretionary and must reflect an understanding that not all inaction will be illegitimate. Rather, there is an expectation on Defence counsel that they “actively advance their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently”. [18]

[48] In this case, the Defence did what the Courts have come to expect for responsible and diligent counsel. Ms. Shafran appeared in court (personally or by agent) as scheduled and requested outstanding disclosure, she wrote to the Crown requesting outstanding items of disclosure. When those items remained outstanding she scheduled and conducted Crown pre-trial meetings. She scheduled a trial date in the matter without full disclosure but with what she believed, given what she had received in response to her request, to be core disclosure.

[49] I adopt the comments made by Justice Dellandrea in R. v. Racanelli [19] at paragraph 48 “requests by counsel for integral items of disclosure are necessary, and legitimate steps in the discharge of their duty to their clients”. In my view, the timing of the second disclosure request does not detract from the legitimacy of the request.

[50] Given my findings above regarding the delayed disclosure which resulted in the adjournment of the first trial dates, I find that there has been no Defence caused delay. There is, therefore, no Defence delay to deduct.

[51] The Crown has not advanced any exceptional circumstances that warrant a further reduction in the delay, nor has the Crown suggested that the case was particularly complex such that it would require more time than is set out in the presumptive OCJ ceiling to prosecute. I agree, there are no exceptional circumstances, nor is this case complex. This case is a routine impaired driving investigation. As I indicated earlier, save for a toxicology report, the entirety of this investigation concluded the same day the Applicant was charged and released.

Conclusion

[52] The total delay in this case between the swearing of the Information and the end of the scheduled trial date is 893 days, or 29 months and 11 days. The presumptive Jordan ceiling has been breached. There have been no waivers of delay by the Defence and none of the delay is attributable to Defence conduct.

[53] The delay is unreasonable.

[54] The Applicant has established that his right as protected by s. 11(b) if The Charter has been breached and a stay of proceedings under s. 24(1) is warranted.

[55] Accordingly, the proceedings against the Applicant are stayed.

[56] I will note that the management of the disclosure on this file by the PRP and Peel Crown’s office and the arguments advanced during this s. 11(b) Application are concerning. Court appearances, pre-trials and Defence counsel are not meant to be a tickler system for the Crown’s office to remind them of their core obligations in a prosecution. Disclosure packages in this case were sent out during and after appearances and pre-trials. In circumstances such as these it is not surprising the Crown failed to release important BWC footage. That this is a busy jurisdiction is no excuse. Systemic issues regarding the failure to provide timely disclosure in routine cases has been an ongoing problem in Peel Region [20] (R. v. A.(C)., 2024 ONSC 1603 see paragraph 48 highlighted other cases in the region, R. v. Stefan, 2024 ONCJ 565 see paragraph 52). That the delay flowing from this systemic problem belongs to anyone other than the Crown at large demonstrates the failure by the Peel Crown’s office to recognize their responsibility for timely disclosure. It is the root of the systemic disclosure issue and must be dealt with to address the growing burdens in this jurisdiction.

Released: December 3, 2024 Signed: Justice E. Thomas

[1] See Appendix A to the Affidavit of Ms. Brasz, showing disclosure notification by email at 9:05 a.m. [2] See Exhibit B to the Affidavit of Ms. Brasz showing disclosure notification by email at 8:53 a.m. [3] See Exhibit C to the Affidavit of Ms. Brasz. [4] See Exhibit D to the Affidavit of Ms. Brasz. [5] See Exhibit D to the Affidavit of Ms. Brasz. [6] See transcript of proceedings on April 17, 2023. [7] See Exhibit F to the Affidavit of Ms. Brasz. [8] See Exhibit G to the Affidavit of Ms. Brasz. [9] See Exhibit K to the Affidavit of Ms. Brasz [10] R. v. Jordan 2016 1 SCC 27. [11] 2016 ONCA 704 paragraphs 34 to 41 [12] See R. v. Belle 2018 ONSC 7728 at paragraph 26-27. [13] See R v. Aden [2023] O.J. No. 6809 at paragraph 6. [14] See Appendix 2 of the Crown’s Factum. [15] See Jordan at paragraphs 63-65. [16] See Cody 2017 SCC 31 at paragraph 30 [17] See Cody at paragraph 35. [18] See Jordan at paragraph 138. [19] 2022 O.J. No. 3900 at paragraph 48. [20] R. v. A.(C). 2024 ONSC 1603 see paragraph 48 highlighted other cases in the region, R. v. Stefan 2024 ONCJ 565 see paragraph 52.