ONTARIO COURT OF JUSTICE
DATE: 2025-02-13
COURT FILE No.: Central East - Newmarket - 23-91106674
BETWEEN:
HIS MAJESTY THE KING
— AND —
DEVONTE BARKER-CAMPBELL
Before Justice M. Townsend
Heard on February 13, 2025
Ruling on the Crown Application for Abridgement of Time for Service and Filing of Charter Materials released on February 13, 2025
R. Jahani-Geran .................................................................................. counsel for the Crown
R. Kodsy ...................................... counsel for the defendant Devonte Barker-Campbell
TOWNSEND J.:
[1] The touchstone in this and in all criminal trials must always be fairness. Fairness to the accused, fairness to the Crown, and fairness to the administration of justice. As the adage goes: Justice must not only be done, but also seen to be done. Transparency in proceedings is a hallmark of that fairness which must be afforded to all parties.
[2] In the justice system here in Canada, we as judges and lawyers thrive on rules: rules of evidence, rules of interpretation, and rules of criminal proceedings. Rules are in place for a reason, and rules are meant to be followed. The following of established rules provides for a level playing field as between the parties and ensures that everyone knows their obligations to each other and to the Court.
[3] Rule 1.04(1) of the Criminal Proceeding Rules states:
"These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
[4] In the Application before me, the Crown seeks an abridgement of time for the service and filing of its Form 2 response to the Applicant's Form 1 Charter Application.
[5] Mr. Kodsy, on behalf of Mr. Barker-Campbell, opposes the Application, and submits that the Crown ought to be prohibited, based on a breach of the Criminal Proceeding Rules, from responding to the defence Charter Application, and should be ordered to "stand mute" on the defence Application.
[6] Rule 1.1 of the Criminal Rules of the Ontario Court of Justice states:
1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.
(2) Dealing with proceedings justly and efficiently includes
(a) dealing with the prosecution and the defence fairly;
(b) recognizing the rights of the accused;
(c) recognizing the interests of witnesses; and
(d) scheduling court time and deciding other matters in ways that take into account
(i) the gravity of the alleged offence,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the accused and for others affected, and
(iv) the requirements of other proceedings.
Duty of counsel, paralegals, agents and litigants
(3) In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations,
(a) act in accordance with the fundamental objective; and
(b) comply with
(i) these rules,
(ii) practice directions, and
(iii) orders made by the Court.
Duty of Court
(4) The Court shall take the fundamental objective into account when
(a) exercising any power under these rules; or
(b) applying or interpreting any rule or practice direction.
[7] This rule recognizes crucial considerations that are to be considered by the court and the parties at all stages of a court proceeding.
[8] Rule 3.1 relates to time for service, and states:
(1) An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application.
(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application.
(3) Despite subrules (1) and (2), the time periods set out in those subrules may be shortened or lengthened
(a) by a local practice direction;
(b) by an order of the Court; or
(c) with the consent of the parties, except as described in rule 3.2.
[9] Rule 4.1 of the same rules states:
"When conducting a hearing or trial, the Court has the power to make any order or direction in relation to the conduct of the proceeding that would assist in ensuring that it is conducted in accordance with the fundamental objective set out in rule 1.1."
[10] The defence position in opposing the Application simply is that the Crown did not comply with the rules, filed their response 2 days prior to the trial, and therefore time for abridgment for service and filing ought to be denied.
[11] The Crown has, to use a colloquial phrase, fallen on their sword. Ms. Jahani-Geran admits that she made a mistake. She submitted to the Court that she has a very busy practice, she has hundreds of active files, she went away on vacation, and missed the 15-day deadline for service and filing.
[12] Mr. Kodsy, on behalf of Mr. Barker-Campbell relies on a number of cases, in particular R. v. Dumont, 2000 ONCA 3413, [2000] O.J. No. 3413 from the Ontario Court of Appeal. In Dumont, the defence filed a Charter Application, the Crown filed no responding material but sought leave to call viva voce evidence on the application. The trial judge denied this request and precluded the Crown from calling evidence on the application.
[13] The Court of Appeal stated the following at paragraph 6:
"In our view, the routine disclosure provided by the Crown does not eliminate the need for compliance with the clear wording of rule 35.05(3). At the very least, the Crown could have given notice of the basis for its opposition to the Charter application. We agree with the summary conviction appeal court judge that the trial judge had a discretion, pursuant to rule 2, to permit the Crown to lead viva voce evidence despite noncompliance with the rule. We also agree that, in the circumstances of this case, there was no error in the exercise of that discretion in refusing to waive compliance with rule 30.05(3)."
[14] The Court of Appeal and the summary conviction appeal court specifically reference the trial judge's discretion.
[15] The case before me is different than in R. v. Dumont. The case before me is even different than the case before my brother Justice Kenkel in R. v. Yung, 2002 O.J. No. 3218 wherein His Honour notes that there was no explanation given by the Crown as to why there was no response filed.
[16] Mr. Kodsy also relies on the decision of Justice McIsaac in R. v. B.L.S., 2003 O.J. No. 4688 wherein Justice McIsaac ordered the Crown to "stand mute" on an application to direct funding to retain experts.
[17] The effect of the Crown "standing mute" on an order to direct funding for the retainer of experts is far different than the effect of the Crown “standing mute” on an application to exclude evidence.
[18] It seems to me that directing one party to "stand mute" on any type of application before the Ontario Court of Justice tugs at the strings of fairness that permeate the fabric of the administration of justice.
[19] I accept Ms. Jahani-Geran's explanation as to why the response is filed late. People make mistakes. This is not a habit of Ms. Jahani-Geran, nor do I find any bad faith on her part. If the roles were reversed and an experienced defence counsel with no history of non-compliance with the rules came before this Court with a similar explanation, I suspect that the reasoning and decision would be exactly the same.
[20] In R. v. Dryden, 2024 O.J. No. 4821, again my brother Justice Kenkel made the following comments at paragraphs 2 through 4:
[2] The defence submits that the Crown should not be able to call evidence in response to the defence Charter applications as they did not respond in a timely way. The response to the sections 8,9 and 10 application came only two business days before trial. The ss 7 and 9 "overholding" application was filed on the same date but separately. It appears the Crown who responded to the first notice of application was unaware of the second.
[3] Rules are procedural and intended to facilitate the fair and expeditious determination of Charter issues at trial. The notice provisions ensure that neither party is taken by surprise and that both parties are aware of the factual and legal basis for the application - R v Grant, 2014 ONSC 1479 at para 19.
[4] I'm satisfied that the timing of the Crown's response on the sections 8,9 and 10(b) application does not take the defence by surprise as it refers to information already present in the disclosure. The factual and legal basis of the application is plain. It would not be unfair to permit the Crown to call evidence in response.
[21] In the case before me, the defence application was filed exactly one month before the trial, giving the Crown 2 weeks to respond. While I was not present for the judicial pre-trial, nor was I present for the date setting, I suspect that it was always contemplated that there would be a Charter application on this matter. The Crown response surely cannot be taking the defence by surprise.
[22] The Crown is not asking for an adjournment, simply that this court exercise its discretion and abridge the time for service and filing. Exactly the discretion that was recognized in R. v. Dumont.
[23] Trial fairness must be preserved. While the Crown should have complied with the rules, I see no prejudice to Mr. Barker-Campbell in allowing the Crown to respond to his Charter application.
[24] Both the Form 1 and the Form 2 are of sufficient quality that together with evidence on the voir dire they can be adjudicated by this Court.
[25] The Crown's application to abridge the time for service and filing of responding materials is granted.
[26] We will proceed to trial.
Released: February 13, 2025
Signed: Justice M. Townsend