ONTARIO COURT OF JUSTICE DATE: 2024 02 13 INFORMATION NUMBER: 21-4016

BETWEEN:

HIS MAJESTY THE KING

— AND —

DENNIS RHODES

Before: Justice M.K. WENDL

Heard on: February 13, 2024 Ruling Released: February 13, 2024

Counsel: E. Quinn, Counsel for the Provincial Crown S. Camara, Counsel for Dennis Rhodes

Endorsement

WENDL J.:

[1] On February 13, 2024, Dennis Rhodes brought an 11(b) application to stay his charges for delay. The Crown contends that the application is materially deficient because the transcripts are incomplete and, therefore, requests that I dismiss the defense’s motion. The defense requests an adjournment because they only received the Crown’s response to their application on February 11, 2024. However, the Crown did file a notice of dismissal for lack of transcripts on January 31, 2024, and the issue with transcripts was brought to this Court’s attention on February 1, 2024.

[2] The Application record of Mr. Rhodes contains numerous transcripts that consist of only excerpts of proceedings, showing only the remand portion and, sometimes, brief discussions on scheduling and written submission deadlines. The complete details are missing and therefore the complete record of what transpired is unavailable to the Court to properly assess the issues surrounding delay. The Crown maintains that the following 14 transcripts are required, all of which have been identified to the defense previous to this appearance. The Crown provides the following brief explanations from their notes as to the nature of the appearances:

1. Feb 25 2021 – Full transcript required – Court dealt with defense Severance motion – Crown argued how severance would have an impact on courts and ability to set multiple trials for Mr. Rhodes.
2. Feb 26 2021 – Full transcript required – Severance motion arguments continued RE defense Severance motion. Crown Similar fact application argued.
3. March 23 2021 – Full transcript required – severance motion continued – arguments on severance application finally completed. We had to return to “argue binding other trial judges if severance is ordered” raised by defense – MID-MOTION). Submissions made. Judge wanted to vacate March 25 and 26 – Crown said NO its too early to do that.
4. April 28 2021 – Full transcript required – Severance Ruling where the Judge addresses the Crown’s argument that there will be a Potential Prejudice for Trial within A Reasonable Time / impact of Covid and Delay . Brief Discussions also held regarding procedure for severance, the need for further JPT to discuss and approve trial estimates for additional trials.
5. May 5 2021 – Full transcript Required – full transcript already exists but is not provided by defense. Defense application record has transcript starts at p. 1 and jump to p. 117. The first part of the day / the omitted portion, Court, Crown and Defense discussed housekeeping and scheduling issues related to the Defense Charter motion.
6. July 15 2021 – Full transcript required – Two rulings were to be provided at this appearance – one ruling found the defense had failed (in part) to put the Crown on proper notice RE scope of Charter application. Second ruling not provided. Additional time required for Crown to respond / call evidence. **On this date, Defense Notified the Judge for First Time they are bringing an application to "limit the Crown's prosecutorial discretion to decide which trials go first" – they want to decide which of the 3 trials goes first, second and last. Nothing was filed yet. Zivolak J. told them to file by tomorrow. Crown will try to respond next week so motion can be argued and not lose trial time.
7. July 20 2021 – Full transcript required. Crown required to recall a witness in order to respond to new scope of charter issues (related to ruling on July 15 2021 / lack of proper notice re Charter)... submissions on charter app made – Defense requested adjournment for 24(2) argument to be done after s. 8-9 findings.
8. July 22 2021 – Full transcript required. Submissions on Charter application (the ruling would also impact the other motions – when they would be argued and how). The Crown made comments on defense’s late motion to control order of trials: Defense filed materials late for a motion that was never scheduled – and the Crown was forced to respond on short service. Defense then requested an adjournment to reply to the Crown’s response.
9. August 17 2021 – Full transcript required. Ruling on Defense application seeking to control the order of trials and review Crown’s discretion. This was a last minute, unscheduled defense motion.
10. August 19 2021 – Full transcript required. On this date, Court rendered their Ruling on Charter application, discussions held on procedure and on witnesses appearing via zoom …
11. September 13 2021 – Full transcript required. Defense not prepared to proceed with their Garofoli motion, and the reasons why were discussed – the scope of their Garofoli motion changed – reasons why discussed…
12. September 15 2021 – Full transcript required. Garofoli motion addressed. Late additional materials filed by Defense. Crown comments on defense delay, defense response to comments, scheduling issues discussed. Defense continues charter argument… and how it will relate to their Garofoli motion.. Garofoli motion commenced partially
13. September 16 2021 – Full transcript required. Garofoli motion commenced. Evidence issues discussed RE Garofoli motion. Defense bringing future Garofoli motions that were not discussed at JPT / trial estimates not approved of to challenge additional ITO’s not contemplated or included in their materials.
14. September 23 2021 – Full transcript required. Court renders Garofoli ruling. Discussions RE resolving one of the three severed trials in light of the Garofoli ruling and what trial will be proceeding first if one of the three trials resolves.

[3] I also note that the Crown did not ask for a full transcript of every single incomplete transcript from the applicant. The Crown identified specific dates that were missing and explained why they were relevant to a determination of delay [1].

[4] The Ontario Court of Appeal states that when s. 11(b) is in issue full transcripts are required:

this court has come to expect that full transcripts of the proceedings under review will be placed before it. A fair assessment of an alleged breach of s. 11(b) is best made after a review of all available transcripts pertaining to the challenged proceedings [2].

[5] Appellate and lower courts have consistently maintained that, as a general rule, the transcripts of all court appearances must be filed on any application to stay proceedings pursuant to s. 11(b) of the Charter. Except in the rarest of cases, transcripts of the court appearances of the applicant for Charter relief are required [3].

Furthermore, the situation was exacerbated with the evidentiary record of what transpired during court appearances by the appellant remaining essentially unknown during the argument of the Charter application. Except in the rarest of cases, with this case not being such an example, transcripts of the court appearances of the applicant for Charter relief are required: Regina v. Hill (1996), 36 C.R.R. (2d) 119 (Ont. C.A.) at 121 per curiam; Regina L. Franklin (1991), 66 C.C.C. (3d) 114 (Ont. C.A.) at 121-2 per Griffiths J.A. [4].

[6] This general rule may be applied with some flexibility depending upon the facts of the case and in particular, the level of dispute as to what was said and what occurred. Where issues of waiver are not disputed, where missing transcripts do not contain contentious events, where there is no suggestion that the picture drawn from the record is inaccurate, then transcripts may not be necessary [5]. Ultimately, an 11(b) applicant is required to file all transcripts of "any proceedings earlier taken which are material to a determination of the constitutional issue raised" [6] and there is a high onus on the applicant who suggests a transcript of a prior appearance is unnecessary because it is said not to be material to the issue at hand [7].

[7] As Justice O’Donnell stated:

The obligation to provide transcripts clearly lies on the moving party, Mr. Chimenti. The Rules allow for no other interpretation. There was no application to waive compliance, at least no application at a time before the s. 11(b) hearing itself, when the court's decision could possibly have had any meaning. In the absence of agreement between the parties, what happened and what was said in those dozens of appearances for which no transcripts were provided matters. It could be central to the s. 11(b) inquiry. The onus is clearly on the applicant either to file all of the transcripts, to come to an agreed statement of facts with the Crown about what did or did not happen during those appearances, or to persuade the court that the absence of the transcripts could not possibly affect the outcome. None of those things has been done here. The absence of the thirty-two transcripts justifies dismissing the s. 11(b) application summarily. This conclusion is consistent with the decisions of Akhtar J in the Superior Court of Justice in R. v. Codina, 2017 ONSC 4105 and R. v. Codina, 2017 ONSC 4886 [8].

[8] The applicant has not displaced the high onus as to why the transcripts are not necessary, she simply states that she has complied with her evidentiary burden and if the Crown felt more information was required they could have filed it. I do not agree. First, the Crown, even though they do not bear the onus, has demonstrated the relevance of those transcripts to the proceeding (see above paragraph 2), for example, on July 15, 2021, the transcripts deal with improper notice to the Crown, which could impact an assessment of delay, the April 28 2021, transcript which deal with the Severance Ruling where the Judge addresses the Crown’s argument that there will be a Potential Prejudice for Trial within A Reasonable Time / impact of Covid and Delay, could also impact that assessment and the September 16, 2021, transcript where the defense discussed bringing future Garofoli motions that were not discussed at JPT and without potentially appropriate trial estimates. But again, it is not the Crown’s onus. More significantly the applicant has not shown why the transcripts are not necessary. Second, simply arguing that if the Crown felt material was missing, they should have requested it does not displace the duty on the applicant to establish the evidentiary record. As Justice Akhtar noted:

Secondly, notwithstanding the Practice Direction, the onus of filing all transcripts of prior court appearances always rests upon the party alleging the Charter violation. Since the applicant was advancing the Charter argument and seeking the mandatory remedy of a stay, it was her responsibility to establish the evidentiary record: R. v. Goncalves, [2016] O.J. No. 6818 (Ont. Ct. J.), at para. 11.

Thirdly, even though Jordan represents a recasting of the s. 11(b) analysis by shifting the onus to the Crown once a delay in excess of 30 months is established, that period of delay is only determined after defence delay is deducted. In other words, there is a difference between total delay and the net delay on which the presumptive ceiling is based. It is for the defence to show that the ceiling was breached -- something that would require all of the transcripts.

Fourthly, the practical implications of having each party order the transcripts that they would rely upon could lead to a break down in the s. 11(b) process. The Crown would only know which transcripts the defence had ordered when it filed its application. If that occurred very close to the hearing date, there might be insufficient time for the Crown to obtain the transcripts it wished to rely upon. This would be a highly unsatisfactory state of affairs and could not have been what the Supreme Court of Canada had envisioned [9].

[9] Moreover, I would also like to note that the Crown acted quite fairly throughout the proceedings in notifying both the Court and the applicant as to the deficiencies in the application well before today’s hearing date.

[10] In conclusion, I find that the Crown provided timely notice on the issue of dismissal of the application for lack of transcripts with the response filed on January 31, 2024, therefore, the adjournment application is dismissed. Second, I find the 11(b) application brought by the defendant to be materially deficient. Therefore, I dismiss the 11(b) application.

Released: February 13, 2024

Signed: Justice M.K. Wendl

Footnotes:

[1] Email chain of January 25 to 30 2024, (Tab 37 of CRR) [2] R. v. Allen, [1997] O.J. No. 3175 (ONCA) at para. 12 [3] R. v. Silveira, [1998] O.J. No. 1622 (SCJ), at para. 45 and R. v. McNeilly [2005] O.J. No. 1297 (SCJ), at paras. 10 and 14. [4] Silvera supra note 3 at para. 45 [5] R. v. Stevens, 2011 ONSC 5130, at paras. 42-43 R. v. Babra, [2007] O.J. No. 4071, at para. 18 [6] R. v. McNeilly [2005] O.J. No. 1297 (SCJ – Justice Hill), at para. 16 R. v. Stevens, 2011 ONSC 5130, at para. 42 [7] R. v. McNeilly [2005] O.J. No. 1297 (SCJ – Justice Hill), at para. 17 R. v. Stevens, 2011 ONSC 5130, at para. 41 (citing McNeilly) [8] R v Chimenti, [2019] O.J. No. 5459 at para. 10 (ONCJ) [9] R v Codina, [2017] O.J. No. 3518 at para. 20-22 (ONSC)