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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: 2024·12·09
Toronto Region
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND — URGEN TSERING
Before Justice Michael Waby Heard on November 25, 2024 Reasons for Ruling on Charter s. 11(b) released on December 9, 2024 A.Leggett................................................................................................................... for the Crown K.Mehar.................................................................................................................. for the Accused Waby M.:
Overview
[1] The Applicant was arrested and charged on October 25, 2022 with the four counts of sexual assault by touching, two counts of criminal harassment, and one count of voyeurism. These charges followed a workplace complaint made by a co-worker at St. Joseph’s Hospital in Toronto. The offences are alleged to have occurred on three separate dates in 2022, the last of which allegedly occurred in August, 2022
[2] The Applicant’s trial is scheduled to end on January 17, 2025, which is 815 days (26 months and 23 days) after his arrest. This is over the 18-month limit set by the Supreme Court in R. v. Jordan as to what is a reasonable time to trial in the Ontario Court of Justice
[3] Mr. Tsering alleges his s.11(b) right pursuant to the Charter has been violated and asks the court to stay the charges pursuant to s. 24(1).
[4] An expedited timeline for the hearing of this application was set and I heard argument from counsel on November 25, 2024. Mindful of these truncated timelines, the following are my reasons for my decision on this application.
Analytical Framework
[5] Jordan sets out the analytical framework to determine a s. 11(b) violation as follows:
Step 1: Calculate the total delay. This is the period from the charge to the actual or anticipated end of the trial.
Step 2: Calculate the net delay. Subtract any defence delay from the total delay. Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct.
Step 3: Compare the net delay to the presumptive ceiling of 18 months in the Ontario Court of Justice. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.
Step 4: The Crown may rebut this presumption if it establishes exceptional circumstances such as complexity and/or discrete events.
Step 5: Calculate remaining delay. Subtract delay caused by any exceptional discrete events from the net delay. If the remaining delay exceeds the presumptive ceiling, it is unreasonable delay.
Step 6: 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.
Evidence
[6] The case can be divided into 5 broad periods of time:
October 25, 2022 to January 20, 2023: Accused arrested and charged, initial disclosure provided, counsel partially retained and further disclosure request made for CCTV footage (3 months);
January 20, 2023 to May 30, 2023: time taken to review disclosure, conduct a Crown Pre-Trial (“CPT”), an initial Judicial Pre-Trial (“JPT”), and follow up with regarding to outstanding CCTV disclosure (5 months);
June 2, 2023 to January 31, 2024: Receipt of CCTV disclosure, further CPT, Resolution discussions, Defence receipt of substantial 3rd party disclosure, further JPT conducted to revise time estimates for trial (7 months);
February 1, 2024 to October 14, 2024: resolution discussions continues, Defence counsel becomes retained for purposes of trial in March, trial dates set, 278.93 set and abandoned by defence counsel, Crowns adjourns a testimonial aids application;
October 15, 2024 to January 17, 2025, first trial date adjourned due to late, same day disclosure of a video witness statement by police to both Crown and Defence, new trial dates set of January 13-15, 2025 and January 17, 2025, Defence counsel filed 11(b) Application and Stage 1 and Stage 2 dates for a section 278.93 Application are set for December 9 and 23, 2024 respectively.
October 27, 2022 to January 20, 2023
[7] Between the Applicant’s arrest and charge on October 25, 2022 and January 20, 2023, a period of, just under 3 months, the matter appeared in court twice:
December 2, 2022 – Counsel sent a request for initial disclosure and advised he was counsel for Mr. Tsering;
December 15, 2022 – First appearance and matter adjourned for preparation of disclosure. Initial disclosure subsequently provided later that same day;
January 19, 2022 – Defence Counsel requested further disclosure including copies of any Workplace Investigation, notes of complainant’s meeting with HR and CCTV footage from workplace;
January 20, 2022 – 2nd appearance, adjourned for receipt of further disclosure.
January 20, 2023 to May 30, 2023
[8] During these 5 months, the Applicant appeared in court 3 times:
January 31, 2023: Crown responds to defence counsel’s further disclosure request and advises it is awaiting a response from Toronto Police Service (TPS);
February 24, 2023: matter adjourned to set Crown Pre-Trial (CPT) and receive further disclosure;
March 31, 2023: defence Counsel requests a further adjournment to schedule the CPT and receive further disclosure. Crown advises defence counsel TPS have not yet obtained the CCTV footage from workplace and that the only available CCTV footage available from St Joseph’s Health Centre relates to offence dates of August 22-23, 2022 and video is in the possession of the hospital
Also, during the 13th April-2023 - 30th May, 2023 period the following occurred:
April 13, 2023 – Initial CPT with the Crown, Crown offers to set Judicial Pre-Trial for May 8, 2023. Defence counsel available on 3oth May, 2023
April 19, 2023 further disclosure provided, including video statement of complainant and BWC footage
May 30 – initial JPT held, Crown and defence at issue over their recollection of whether CCTV footage was considered 3rd party disclosure at this JPT, but Crown agreed to follow up and see if the specific CCTV footage could be obtained. Defence counsel advises will be bringing 3rd party records application for other materials including workplace investigation and WSIB records. 3 day trial time estimate approved. Further JPT contemplated if additional witnesses are required. Crown in a position to set trial dates.
June 2, 2023 to January 31, 2024
[9] During these 6 months, the Applicant appeared in court 8 times:
June 2, 2023 – Defence counsel advise that outstanding CCTV disclosure precludes setting of trial dates. Crown in a position to proceed;
July 5, 2023 – Defence counsel attends and advises defence is still awaiting the August, 2022 CCTV footage. Defence advise unable to set trail dates without this. Crown advises court that this was not raised at initial JPT. Crown and Defence disagree over whether CCTV is 3rd party disclosure and its impact on setting trial dates;
July 20, 2023 –TPS obtain a production order for materials from St Joseph’s which includes the CCTV footage from August 22 - 23, 2022;
September 15, 2023 – CCTV footage provided to defence counsel. Footage captures a hallway and the nursing station where some offences are alleged to have occurred and the accused and complainant;
October 13, 2023 – Defence counsel schedules further CPT for resolution discussions or to set a trial date;
October 16, 2023 – further CPT held. Crowns requests that defence file the trial scheduling form to set trial dates and reiterates concerns about delay and 3rd party disclosure;
November 17, 2023 – defence requests adjournment to obtain a final resolution position. Crown seeks for trial dates to be set on next appearance;
December 12, 2023 – Defence advises Crown he has received an investigative report from the College of Nurses that may impact trial estimates and requests additional video footage that may or may not exist;
December 15, 2023 – Defence advises he has now received significant 3rd party disclosure that will require a further JPT and revisions to trial estimate;
January 12, 2024 – matter adjourned to JICMIC court as trial dates not yet set and parties advise further JPT required.
January 14, 2024 – Crown advises defence counsel again that their position is that any additional CCTV footage is not in hands of the police and is a 3rd party record not subject to Stinchcombe obligations;
January 26, 2024, adjourned to 2nd JPT on January 31, 2024;
January 31, 2024, further JPT held and one additional day of trial time required beyond initial time estimate of 3 days. Defence counsel advises that he is not yet retained for trial.
February 1, 2023 to October 14, 2024
9th February, 2024, defence counsel asks for an adjournment to obtain instructions on resolution. Crown advises has been in a position to set trial dates since May, 2023.
19th February, 2024, Crown advises defence counsel an in court JPT will need to be set if retainer is not perfected to enable counsel to set trial dates
7th March, 2024 fi filed
15th March, trial scheduling call held and matter adjourned to set trial dates
15th Mach, 2024 – trial dates put on record, first available dates of August 27 to 30 not available to defence trial dates set for October 15 to 18/20/24
14th June, 2024 – defence counsel abandons 278.83 motion. Crown enquires as to whether earlier trial dates are available to defence counsel in light of this. Crown still available in August, 2024. Defence counsel not available, original trial dates retained.
October 15, 2024 to January 17, 2025
October 15, 2024 – 1st day of scheduled trial. Police provide an additional witnesses’ video statement to Crown and defence that all parties were unaware of. Matter adjourned to enable defence to review and consider the late disclosure. Timetable for any sections 11(b) and 278 applications requires materials to be filed by December 9. Crown accepts short service of any materials;
November 13, 2023 – Defence files 11(b) materials;
November 19, 2023 – Defence files 278 materials;
November 20, 2023 – 11(b) application scheduled but not reached in court;
November 23, 2023 – 11(b) application heard;
December 9, 2023 – Stage 1 section 278.93 application scheduled to be heard and 11(b) decision rendered.
Position of the Parties
[10] The Applicant accepts that there are three periods of delay that can be attributed either completely or partially to the defence:
(1) October 13, 2023 to December 12, 2023 (60 days): A period during which efforts were being made by the defence to resolve the matter.
(2) February 1, 2024 to March 7, 2024 (35 days): The period following the second JPT to the date on which the defence submitted the trial scheduling form.
(3) August 30, 2024 to October 18, 2024 (49 days): The period between the last day of the first offered trial dates and the trial dates accepted by the defence. It is submitted that this period should only partially be attributed to the defence, as no trial dates were offered for the entire month of September 2024. The applicant accepts a 50% attribution (25 days) of delay for this period.
[11] Defence counsel therefore submits that the total defence delay in this matter is 120 days and that the remaining delay to trial lies at the feet of the Crown and exceeds the 18-month Jordan ceiling and the charges should be stayed pursuant to s. 24(1) of the Charter.
[12] The Crown responds with a much higher calculation of defence delay. The Crown submits that delay in setting trial dates between May 30, 2023, and March 7, 2024 (283 days) should be attributed wholly to the defence.
[13] Furthermore, the Crown submits that the entire period between the first available trial dates to the Crown and the court, that were declined by the defence, is defence delay and should therefore be deducted from the overall delay (50 days).
[14] Lastly, the Crown submits that the initial JPT was delayed by 16 days due to defence unavailability and should be attributed wholly to the defence.
[15] The Respondent’s calculation of delay is therefore:
Total delay: 814 days
Defence delay: 349 days
Net delay: 465 days or 15 months and 15 days.
By that calculation, the Crowns submits that the delay to trial is under the Jordan ceiling, there has been no Charter violation and the Application should be dismissed.
Analysis
Step 1: Total Delay
[16] The parties agree that from the day the Information is sworn on October 27, 2022 to the last day when the trial is expected to be completed on January 17, 2025 is 815 days (26 months and 23 days). This total delay is over the Jordan 18-month ceiling.
[17] In addition to counsel’s oral submissions, both Crown and defence have provided me with helpful and fulsome materials which I have reviewed and for which I am grateful.
Step 2: Net Delay
Applicant
[18] The parties differ on what constitutes defence delay that should be deducted from the total delay to determine the net delay.
[19] The Applicant acknowledges defence delay of 120 days for the reasons previously outlined.
[20] During oral argument, defence submitted that that from the outset, defence counsel had raised the issue of outstanding CCTV footage that was of significant potential relevance in this case. This was flagged in an initial disclosure request at an early stage of proceedings, specifically January 19, 2023 in an email to the Crowns office. Defence counsel has a different recollection from the Crown of the initial JPT with regards to what outstanding potential disclosure was considered to amount to 3rd party records.
[21] Nevertheless, Mr. Mehar strongly submits that it was legitimate for him to conclude that the police and Crown were investigating the existence and provision of CCTV disclosure from the August 22-23 date and that once the existence of this disclosure became known it was reasonable for him to delay setting any trial dates until he had received and reviewed this material.
The Respondent
[22] Ms. Leggett submits in her materials and in her oral arguments that the CCTV footage from the August date always amounted to 3rd party records and should be viewed as such. The Crown submits that following the first JPT on May 30, 2023, the Crown and the court were in a position to set trial dates and argues that defence repeatedly adjourned the matter seeking materials which it was aware were not in the possession of the Crown but were rather in the hands of a third party – St. Joseph’s Health Centre.
[23] Ms. Leggett submits that this position was made clear at the JPT, subsequent court appearances and correspondence. However, she argues that the defence repeatedly resisted the setting of these date and framed the issue as one of outstanding disclosure.
[24] Ms. Leggett acknowledge that security staff communicated to TPS in September 2022 that CCTV footage from the alleged August dates was in fact in existence. St Joseph’s Hospital advised TPS that production order would be required for his material. Ms. Leggett herself further followed up with TPS on this in March 2023 once she became newly assigned to the case.
[25] In July 2023, TPS obtained a production order and received the CCTV footage. It was provided to Defence counsel in September 2023 - 12 months after the TPS were advised of its existence and of the means to obtain it. Such a period of delay for pre-existing material of this kind is utterly unacceptable.
Analysis of Net Delay
[26] The Crown submits that it was open to defence counsel to seek and obtain this CCTV footage earlier and that pursuant to Stinchcombe, it should be treated as 3rd party disclosure that was not in the hands of the police, and by extension the Crown. Ms Leggett argues that it was always open to defence counsel to bring an O’Connor application and to try and secure the material earlier.
[27] I reject that argument with respect to the CCTV footage from August 2022. While I accept Ms. Leggett’s submissions on general principles surrounding 3rd party disclosure and with respect to other 3rd party records in this case, it is clear that it was reasonable for defence counsel to conclude that the TPS, had reasonably assumed responsibility for investigating and obtaining and providing this particular footage. Once defence counsel had raised the issued of this CCTV footage, Crown and TPS legitimately and appropriately pursued it. While the Crown may genuinely have considered other further disclose requests made by defence counsel to be 3rd party disclosure, I am satisfied that the August, 2022 CCTV footage was not treated as such in this case.
[28] The email correspondence that I have reviewed between the parties as part of this Application supports this finding. The first clear reference made by the Crown to any CCTV footage amounting to 3rd party records occurs in an email from January 14, 2024 in response to a separate and further disclosure issue that defence counsel raised. By this time, the Crown had already received and provided the August CCTV footage to defence counsel in September, 2023.
[29] Ms. Leggett had diligently pursued this CCTV footage once she was assigned to the case and although her recollection may vary from that of Mr. Mehars’, I find that the initial JPT notes support the conclusion that the Crown legitimately and reasonably assumed this responsibility. This is as distinct from any other 3rd party materials, such as a workplace investigations or reports in this case.
[30] The police have a duty to participate in the disclosure process where it is the investigating state authority. The investigating police force has an obligation to provide the Crown with all material pertaining to its investigation of the accused. This includes both the “fruits of the investigation” and any other material that is “obviously relevant” to the accused’s case.
McNeil, supra at paras. 14, 23, 59. Gubbins, supra at paras. 21-23, 29, 32-33. Jackson, supra at paras. 81-82. Pascal, supra at paras. 104-107.
[31] In a sexual assault case where it was anticipated that there would, in all likelihood, be two distinct and competing version of events, it certainly should have been manifestly clear that independent CCTV footage that may exist of some of the alleged incidents was obviously relevant in this case. In my view, that is why the Crown appropriately explored this piece of disclosure and steps were eventually taken to secure and provide it.
[32] I do not seek to displace a disproportionate and inappropriate investigative burden on to the police. I also accept the general principles that the Crown articulates with respect to it obligations and reasonable limitations pursuant to Stinchcombe.
[33] It does not follow from the disclosure obligation imposed on the Crown, or the correlative duty imposed on the police to turn over their fruits of the investigation to the Crown, that an accused is entitled to a particular kind of disclosure or assured a specific form of investigation.
[34] An accused does not have a constitutional right, either incident to the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which he is charged. He had no constitutional right to direct the conduct of a police investigation of which he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him.
R. v. Darwish, 2010 ONCA 124, [2010] O.J. No. 604 (CA) at para 30-31.
[35] There was no disguised disclosure demand by defence counsel in respect of the August 2022 CCTV footage. I appreciate that there was a change of the officer in charge in this case. I also appreciate Ms. Leggett was not assigned to the case until March 2023. I accept that resources are not boundless for the police, the Crown or any other organization. Nevertheless, the simple reality is that the 12 months it took to provide this CCTV footage was woefully excessive. It was a legitimate and reasonable piece of evidence for defence counsel to seek, it was obviously relevant, and it would have been negligent of defence counsel to not seek disclosure of it.
[36] I do not find that defence counsel could reasonably have set a trial date before receiving and reviewing this piece of disclosure. Once its existence became known, it was entirely reasonable for defence to believe the state would provide this material as part of the police investigation. The administrative steps to secure this pre-existing piece of video footage were not burdensome and were belatedly undertaken.
[37] It has sadly become an increasing phenomenon in our criminal justice system that timely disclosure of video footage is becoming increasingly rare. Evidence captured before or at the time of arrest is often taking many months or even longer to be provided to the Crown. I am mindful that the Toronto Police Service has limited resources allocated to the production of such technological disclosure. However, the consequence of these resourcing choices made by the Toronto Police Service, as seen in this case, is a delay that falls at the feet of the Crown.
[38] Delay of this kind is further compounded in this case by the fact that a video statement of a potential civilian witness in this case was suddenly provided to the Crown and defence on the first original scheduled date of trial. This video statement was taken by the police in May of 2023 and was not provided to the parties until 5 months later on the first scheduled date of the trial on October 15, 2024. Its previous existence was unknown to the parties. Unsurprisingly, this necessitated an adjournment of the original trial dates over the objections of the Crown.
[39] It is important to acknowledge that that all parties have a responsibility to appropriately advance the progression of case before the court. The Supreme Court has been clear that the defence is to be “part of the solution” required to change the culture of complacency. “The deduction of defence delay from total delay as a starting point in the analysis clearly indicates that the defence cannot benefit from its own delay-causing action or inaction” (emphasis added) R. v. Jordan, 2016 SCC 27.
[40] The Court stated:
… By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible and will be treated as such.
Real change will require the efforts and coordination of all participants in the criminal justice system.
For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance. (Emphasis added) R. v. Jordan, 2016 SCC 27
[41] A year later the Supreme Court reiterated as follows:
… As we will explain, the Crown, the defence, and the system each contributed to that delay. This leads us to stress, as the Court did in Jordan, that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time. (Emphasis added). R. v. Cody, 2017 SCC 31
and
Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (Emphasis in original). R. v. Cody, 2017 SCC 31
[42] Delay will be attributed to the defence where there has been (1) an informed, clear, and unequivocal waiver of section 11(b); or (2) where delay is caused solely or directly by the conduct of the defence. The focus in this case is on the second type of defence delay.
[43] Upon receipt of the August 2022 CCTV footage on September 15, 2023, defence knew their client had been arrested over 11 months before. They also knew that they were not retained for the purposes of setting a trial. This was only disclosed to the Court and the Crown in the 2nd JPT held on January 31, 2024. I am of the view that it was incumbent on defence counsel to have provided this information earlier. Although its impact in this particular case was not substantial, clarity on this issue and the scope of a counsel’s ability to participate in the trial process is always required. It should be provided in a timely manner and should be updated as it evolves.
[44] It was not until March 7th, 2024 that Defence filed the trial scheduling form and by March 13th it appears defence counsel was retained for the purpose of trial and the first trial date was set on March 15, 2024.
[45] However, mere fact that defence counsel is not retained for trial does not necessarily mean that counsel is unable to set trial dates. As Mr. Mehar indicated in his oral submissions, there may well be legitimate issues of client and practise management that contribute to the timing of retainer decisions. Ms. Leggett submits that because defence counsel was not retained for trial before March 7th, he could not have set trial dates and that the entirety of the period from the first JPT on May 30, 2023 to March 7, 2024 lies at the feet of the defence in this case. I disagree.
[46] Simply because the Crown may be ready, willing and eager to set a trial date does not mean it is reasonable to assume the same obligation exists for defence counsel. The CCTV footage in this case highlights this point. I accept that that Crown indicated it was ready to set trial dates directly after the first JPT but the outstanding CCTV footage from August, 2022 made that an unrealistic expectation.
[47] I do find that the delay from May 30, 2023 until September 15, 2023 when the CCTV was finally provided lies at the feet of the Crown. I also consider it reasonable for defence counsel to be provided with sufficient time to review, consider and receive instructions on this footage and 14 days seems to me to be a reasonable timeframe for this. As such, I would not attribute defence delay between the period running from May 30, 2023 to September 30, 2023.
[48] Following the eventual receipt of the CCTV disclosure, defence counsel accepts a period of defence delay from October 13 to December 12, 2023 during the course of resolution discussions. On December 15th, defence counsel indicated they had received substantial additional 3rd party record in the form of workplace reports and other material that may necessitate additional trial time and a further JPT. This resulted in an additional day of trial time being required.
[49] Even though some further 3rd party disclosure may have been outstanding, once a certain point in the process has been reached, a trial date in this matter should have been set by defence counsel.
[50] I do find that defence counsel could have been a more diligent between October 1, 2023 and January 31, 2024 in terms of advancing this case and setting trial dates. However, it has to be acknowledged that defence counsel was generally proactive and diligent in moving the matter forward and in appropriately addressing legitimate issues. There was relatively little “foot-dragging” that could be laid at his door. The central issue in this case revolves around lack of timely disclosure not the timing of counsel’s final retainer.
[51] Throughout this case the unfortunate theme is one of the Crown seeking to move the case forward in the face of terminal failings by the police with respect to the provision of basic, key disclosure and of defence counsel flagging and pursuing these issues quite diligently from the outset.
Defence Delay
[52] I find defence delay is 158 days (5.1 months) as follows:
8 days from May 22, 2023 - May 30, 2023 – This represents a 50% attribution of delay for defence lack of availability for the initial JPT;
90 days between October 1, 2023 to January 31, 2024;
35 days from February 1, 2024 to March 7, 2024. This period from 2nd JPT to defence filing TRIAL SCHEDULING FORM.
25 days from August 30, 2024 to October 18, 2024. This represents a 50% attribution of delay for lack of availability for first trail dates.
Step 3: Net Delay Comparison
[53] The total delay in this case is 815 days, less the defence delay of 158 days. There are no exceptional or discrete events to consider in this case. This results in a net delay of 657 days or 21.5 months and is considerably in excess of the Jordan ceiling and violates section 11(b) of the Charter. It is presumptively unreasonable and the Crown has not rebutted this presumption.
Conclusion
[54] The lack of reasonable and necessary steps being taken by the police resulted in an initial 12-month delay in the receipt of key, pre-existing and readily available video disclosure. This delay was then compounded by the revelatory disclosure of a further video witness statement on the first scheduled date of the original trial that was taken 5 months previously and which resulted in additional delay.
[55] I echo the comments of judicial colleagues in this jurisdiction who have previously expressed their concern and frustration at the current state of affairs with respect to the lack of timely disclosure and its impact on our justice system. Policing is a challenging and increasingly complex task but it is about more than simply the effective prevention and detection of crime. It necessarily involves the appropriate and timely provision of disclosure. The work does not stop once the handcuffs are applied to an accused person. The disclosure process may not be glamorous, but it is critical work without which our justice system cannot function.
[56] A stay of proceedings is a remedy of last resort and results in a case not being heard on its merits. However, for the reasoning I have given, I find that Mr. Tsering’s right to be tried within a reasonable time has been breached. I am granting his application and staying the charges on the Information before the court.
Released: December 9, 2024 Signed: Justice M. Waby