Her Majesty the Queen v. Madahbee-Cywink et al.

[Indexed as: R. v. Madahbee-Cywink]

Ontario Reports

Ontario Superior Court of Justice,

Varpio J.

July 25, 2014

122 O.R. (3d) 210 | 2014 ONSC 4371

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Disclosure — Aboriginal accused bringing Kokopenace application alleging that their rights under ss. 7, 11(d) and 11(e) of Charter were violated by jury pools that were not sufficiently representative of their First Nations heritage — Accused moving successfully for disclosure of 2013 jury rolls — 2013 jury rolls being likely relevant to allocation in anticipated s. 11(b) Charter application of delay associated with Kokopenace application — Kokopenance application could be attributed to institutional delay rather than inherent delay or caused by accused if evidence at application proving state allocating inadequate resources to create representative jury pools — Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d), (e). [page211]

The accused were all members of First Nations located on Manitoulin Island. They were committed to stand trial at the 2013 jury sittings, and had been offered trial dates in 2015, although none of their cases had yet been set down for trial. They had brought a Kokopenace application alleging that their rights under ss. 7, 11(d) and 11(e) of the Canadian Charter of Rights and Freedoms were violated by jury rolls which contained insufficient First Nations jurors. The accused brought a motion for disclosure of the 2013 jury rolls.

Held, the motion should be granted.

Disclosure of the 2013 jury rolls was governed by the O'Connor third party disclosure regime. The 2013 jury rolls were likely relevant to an anticipated s. 11(b) Charter application by the accused, and in particular to the allocation of the delay associated with the Kokopenace application. It is not the case that any delay associated with bringing a Kokopenace application must be attributed to either the actions of the accused or inherent delay. Depending on what they contained, the 2013 rolls could demonstrate that the state was in a position to provide the accused with a representative jury panel in 2013, or alternatively, that the jury panel was woefully unrepresentative such that immediate action was required by the state and therefore the evidence on the application could alter how the delay is characterized, based on that context. In the former case, the pre-trial delay may properly be considered delay caused by the accused or by inherent delay. However, if the latter is proven by the Kokopenance application, the application may be found to be attributable to institutional delay.

R. v. Faulkner, [2013] O.J. No. 2315, 2013 ONSC 2373, 282 C.R.R. (2d) 95 (S.C.J.); R. v. Ferguson, 2005 28538 (ON SC), [2005] O.J. No. 3442, [2005] O.T.C. 746, 24 M.V.R. (5th) 47, 66 W.C.B. (2d) 583 (S.C.J.), consd

Other cases referred to

R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 309 D.L.R. (4th) 149, 252 O.A.C. 377, EYB 2009-159757, J.E. 2009-1076, 389 N.R. 1, 245 C.C.C. (3d) 271; R. v. Harrison, [1991] O.J. No. 881 (C.A.); R. v. Kokopenace (2013), 115 O.R. (3d) 481, [2013] O.J. No. 2752, 2013 ONCA 389, 285 C.R.R. (2d) 77, 4 C.R. (7th) 67, 306 O.A.C. 47, 299 C.C.C. (3d) 48, [2013] 4 C.N.L.R. 273, 108 W.C.B. (2d) 207; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 165 D.L.R. (4th) 193, 231 N.R. 147, 168 Nfld. & P.E.I.R. 83, 128 C.C.C. (3d) 483, 19 C.R. (5th) 275, 56 C.R.R. (2d) 189, 40 W.C.B. (2d) 40; R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d), (e)

MOTION by the accused for disclosure.

J. Shaffer, for provincial Crown.

J. Chapman, for federal Crown.

J. Tong, for Ms. Madahbee-Cywink.

J. Weppler, for Stephen Enosse, Darren Prince and Stuart Assiniwe. [page212]

M. Haraschuk, for Arnold Debassige and Trisha Pheasant.

VARPIO J.: —

Overview

[1] The above-referenced accused persons are all members of First Nations located on Manitoulin Island in Northern Ontario. They have been charged with different crimes involving different factual matrixes. They come before the court, however, with one common complaint: that the jury pools by which they elected to be tried were not sufficiently representative of their First Nations heritage such that their ss, 7, 11(d) and 11(e) Canadian Charter of Rights and Freedoms rights were infringed. The accused persons have scheduled a week-long motion in October 2014 to argue the merits of their respective positions which are based upon the Ontario Court of Appeal's seminal decision of R. v. Kokopenace (2013), 2013 ONCA 389, 115 O.R. (3d) 481, [2013] O.J. No. 2752 (C.A.) (hereinafter the "Kokopenace application").

[2] In advance of the Kokopenace application, the parties argued a disclosure motion before me on June 26, 2014, wherein the accused persons requested several pieces of disclosure from the Court Services Division, Ministry of the Attorney General (hereinafter the "ministry"). On the day of the motion, Crown counsel appeared as did counsel for each of the accused persons. Counsel were successful in reaching an agreement as to what items would be produced save and except for one item of disclosure: the 2013 jury rolls ("2013 rolls"). For the reasons that follow, I order that the 2013 rolls be produced since they are likely relevant to the s. 11(b) Charter application that will ultimately be brought by the accused persons.

Background

[3] The accused persons were all charged with a variety of counts regarding several different sets of allegations. Counsel elected trial by jury in all matters and their respective cases proceeded through preliminary hearings. The accused persons were committed to stand trial at the 2013 jury sittings. Counsel advised that, upon review of the jury rolls, they concluded that insufficient First Nations jurors were included on the rolls relative to the size of the First Nations communities in and around Manitoulin Island.

[4] The trials were all adjourned and it was agreed that the Kokopenace applications would be heard together in October 2014. Currently, the accused persons have been offered trial [page213] dates starting in January 2015, although none of the matters have, as yet, been set down for trial.

[5] On June 26, 2014, the parties appeared before me to argue a disclosure motion pertaining to records either held by the Crown or by the ministry. Interestingly, the ministry provided a factum separate from that provided by the provincial Crown but did not send a lawyer to make oral argument. By the time the parties appeared on the morning of June 26, 2014, they had narrowed the issues to a dozen or so outstanding items. After recessing for the morning, the parties further narrowed the list to only one outstanding item: the 2013 rolls.

Position of the Parties

[6] The accused persons argue that the 2013 rolls ought properly be disclosed by the ministry and/or Crown because they are relevant to the Charter application that will ultimately be brought alleging that the accused persons' right to a timely trial as per s. 11(b) of the Charter has been infringed. The accused persons claim that said disclosure is first-party disclosure.

[7] Their argument effectively flows as follows:

(a) the rolls giving rise to the Charter application are the 2013 rolls since all trials were to be heard in 2013;

(b) the accused persons will be bringing a s. 11(b) application;

(c) if the 2013 rolls are found to be in violation of the accused's Charter rights, any delay resulting from the bringing of the Kokopenace application will properly be attributable to either the Crown or to systemic delay; and

(d) accordingly, the 2013 rolls are necessary so as to ensure that the appropriate attribution of delay.

[8] In response, the Crown put two cases before the court: R. v. Faulkner, [2013] O.J. No. 2315, 2013 ONSC 2373 (S.C.J.) and R. v. Ferguson, 2005 28538 (ON SC), [2005] O.J. No. 3442, [2005] O.T.C. 746 (S.C.J.). The Crown stated that these cases stand for the proposition that any delay resulting from defence motions and applications -- whether or not said motions and applications are successful -- are properly characterized as neutral time as per the s. 11(b) Charter analysis. Thus, the Crown argues, the only jury rolls that need to be disclosed are the 2014-15 jury rolls (which have been or are being disclosed) since the new trials are likely to be scheduled in that time frame.

[9] The accused persons acknowledge Faulkner and Ferguson but state that these cases can be distinguished since both cases [page214] dealt with attribution of time flowing from, inter alia, disclosure motions, certiorari motions and other procedural matters that were unlike the matters heard on the instant applications.

Issues

[10] This motion involves two issues:

(a) what is the appropriate threshold standard for disclosure; and

(b) do the 2013 rolls meet the appropriate standard?

The Law

The standard

[11] The standards for disclosure were most recently analyzed by the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3. McNeil dealt specifically with police disciplinary records and the duty of the Crown to produce those records to an accused when said records were not in the possession of the government but not the Crown, per se. In such a case, the Supreme Court decided that the appropriate disclosure mechanism was the one described in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. Justice Charron, writing for the unanimous court, stated, at para. 7:

In O'Connor, this Court set out a two-part test for production of third party records. First, the applicant must demonstrate that the information contained in the records is likely relevant. In the appellate context, it was therefore incumbent on McNeil to show that the targeted documents were likely relevant to his proposed application to introduce fresh evidence on his appeal from conviction. Second, if the threshold test of likely relevance is met, the court may order production of the records for its inspection. With the targeted documents before it, the court weighs "the positive and negative consequences of production, with a view to determining whether, and to what extent, production should be ordered" (O'Connor, at para. 137). The second part of the O'Connor test essentially requires a court to conduct a balancing of the third party's privacy interest in the targeted documents, if any, and the accused's interest in making full answer and defence.

[12] At paras. 13, 14, 17-19, the court examined whether or not the Crown and other government agencies were "one and indivisible" and whether separate analytical processes governed the disclosure regime depending upon which government agency possessed the impugned documents:

[T]o the extent that the operative terms of the production order below may suggest that records in possession of one Crown entity are deemed to be in the possession of another, this interpretation should be discarded. The notion that all state authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support in law and, moreover, is unworkable [page215] in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under the O'Connor production regime. As I will explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and the defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused.

[T]his case provides an appropriate context within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the investigation under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, and to consider the extent to which relevant police disciplinary records and third party criminal investigation files should form part of this "first party" disclosure package. The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms. The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.

The Crown's obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44). The Crown's obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal.

While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown's exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.

As this Court confirmed in Mills, the Crown's obligation under Stinchcombe to disclose the fruits of the investigation does not signify that no residual privacy interest can exist in the contents of the Crown's file. It should come as no surprise that any number of persons and entities may have a residual privacy interest in material gathered in the course of a criminal investigation. Criminal investigative files may contain highly sensitive material including: outlines of unproven allegations; statements of complainants or [page216] witnesses -- at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc. The privacy legislation of all 10 provinces addresses the disclosure of information contained in law enforcement files[.]

[13] Thus, it is clear that documents in the possession of different government agencies are governed by different disclosure regimes: either Stinchcombe in the case of first-party disclosure, or O'Connor in the case of third-party disclosure. The former imports the standard of "reasonably possible" relevance while the latter demands that disclosure occur if the documents are likely relevant and following a judicial balancing of interests.

Relevance

[14] Much of what is to be decided in this motion has to do with attribution of delay in a s. 11(b) Charter analysis. The defence has indicated that disclosure of the 2013 rolls is necessary for said attribution. The Crown and the ministry disagree with that position.

[15] The general rules governing s. 11(b) Charter applications are well known and need not be canvassed fully in this decision save and except to state that courts analyze the length of time required to get a matter to trial and attribute any delay to a variety of sources: the actions of the accused, the Crown, systemic or inherent delay, etc. A further analysis is then undertaken to determine whether or not the accused's right to a timely trial under s. 11(b) of the Charter has been breached.

[16] It is important to note that the s. 11(b) Charter analysis is not mechanical. As was noted in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, at para. 18:

The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach . . . is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

(Emphasis added)

[17] When attributing delay, the courts can describe certain delay as "inherent time" which is a neutral factor in the s. 11(b) [page217] Charter analysis. McLachlin J., as she then was, described "inherent time requirements" in R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 128 C.C.C. (3d) 483, at para. 44:

The period of time attributable to inherent time requirements is the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources. The period of time attributable to inherent time requirements is neutral and does not count against the Crown or the accused in the s. 11 (b) reasonableness assessment.

(Emphasis added)

[18] Thus, one prerequisite for determining inherent time requirements is the existence of adequate institutional resources.

[19] Code J., at paras. 49 to 55 in R. v. Faulkner, wrestled with several delay-centric issues. Among those issues was the attribution of delay associated with the accused's certiorari motion:

There were a number of significant developments in this four month period, between Faulkner's committal for trial on November 2, 2009 and the completion of his Superior Court judicial pre-trial on February 26, 2010. First, Faulkner served and filed a Motion in the nature of certiorari, seeking to quash his committal. He went on to perfect it in a timely way, with assistance from the Court and the Crown, by filing the necessary transcripts and filing a factum, even though he was in custody and self-represented. Second, the Court appointed an amicus to assist with this Motion. Third, Faulkner made unsuccessful efforts to retain a fourth counsel and then brought a Rowbotham Motion. Fourth, Faulkner conducted a four day long bail review, before Bellamy J., which was dismissed on January 27, 2010. Fifth, and last, the Court scheduled a judicial pre-trial but Faulkner took the position, arguably correctly, that it could not proceed until his certiorari Motion was heard. In addition, the judicial pre-trial, realistically, had to await the outcome of the bail review so that the pre-trial judge would know whether Faulkner would be in or out of custody for his trial.

On February 16, 2010, the Motion in the nature of certiorari commenced before McMahon J. He remained seized of the case during five court days, between February 16 and 26, 2010. A great deal was accomplished in these five days, in particular, the following . . .

There are two different ways of characterizing this four month period of delay, from the committal to the end of the judicial pre-trial, for s. 11(b) purposes. On the one hand, it is arguable that nothing of substance could happen during this period, in relation to the Indictment, because of the Motion in the nature of certiorari attacking Faulkner's committal for trial. It was only when the certiorari Motion was substantially abandoned, on February 17, 2010, that McMahon J. then changed roles and began to conduct a judicial pre-trial in relation to the Indictment. One small part of the certiorari Motion remained outstanding until February 26, 2010, the last day of this period of time, when it was argued successfully and one count in the Indictment was quashed. Accordingly, there is a good argument that this entire period of delay was caused by the certiorari Motion as it was pending throughout. This is the Crown's position on the s. 11(b) Motion. [page218]

There is a consistent body of case law holding that delay, while a defence Motion seeking relief in the nature of certiorari is pending, is delay caused by "actions of the accused". A number of these cases are binding on me. See: R. v. Harrison, [1991] O.J. No. 881 (C.A.); R. v. Cornacchia (1994), 1994 439 (ON CA), 72 O.A.C. 310 (C.A.); R. v. M. (N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 at paras. 63-5 (Ont. C.A.); R. v. Beausoleil (1991), 66 C.C.C. (3d) 415 at 427-8 (Que. C.A.); R. v. Heikel et al (1992), 1992 ABCA 142, 72 C.C.C. (3d) 481 at 513 (Alta. C.A.). Also see, by analogy: R. v. White et al (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 at 241 (Ont. C.A.).

The other way of characterizing the delay during this period is that the certiorari Motion did not really impede the progress of the Indictment, as a practical matter. Indeed, a great deal was accomplished during this period: a lengthy bail review was heard and dismissed; Faulkner attempted to retain counsel and then brought a Rowbotham Motion, which was also dismissed; an ongoing judicial pre-trial was held, over a number of days, which resolved numerous issues such as the appointment of counsel, disclosure, scheduling of the trial, and identifying pre-trial motions. These are all traditional "intake" activities that are part of the inherent time requirements of the case, (with the possible exception of the Rowbotham Motion, which is arguably an "action of the accused"). The certiorari Motion took place at essentially the same time as these "intake" activities and it did not really delay them, other than by a few days. This is substantially the position taken by Mr. Carlisle.

It is not necessary to resolve this issue. Whether the four month period between the committal and the end of the judicial pre-trial is characterized as defence delay, or as inherent and necessary "intake" delay, makes no significant difference to the s. 11(b) analysis. In either case, it is not unreasonable delay that weighs against the Crown.

I am prepared to assume, without deciding, that this four month period is "intake" delay in the Superior Court, which is part of the inherent time requirements of the case. It carries neutral weight in the s. 11(b) analysis. This is the characterization of the period of delay that is more favourable to Faulkner. If it was characterized as defence delay it would arguably have some negative impact on Faulkner's claim of prejudice to his s. 11(b) interests.

(Emphasis added)

[20] In order to determine the potential relevance of the 2013 rolls, I must also examine the rationale underlying Code J.'s statement that, "'while a defence Motion seeking relief in the nature of certiorari is pending, [the resulting delay] is delay caused by 'actions of the accused'". In R. v. Harrison, [1991] O.J. No. 881 (C.A.) (one of the cases quoted by Code J.), the Ontario Court of Appeal stated, at para. 8:

The respondent was entitled to move to quash his committals for trial, even if these motions required a postponement of the original trial date. However, he must then accept the reasonable delays that occur as a consequence of this additional step in the pre-trial process.

(Emphasis added)

[21] Some other cases quoted by Code J. themselves quote the above passage as being the gravamen of the notion that delay [page219] associated with a certiorari motion is properly attributable to "actions of the accused".

[22] In R. v. Ferguson, Durno J. heard an appeal that dealt with a situation whereby defence counsel sought information that was not within the possession of the Crown. A s. 11(b) Charter application was brought and the trial judge attributed the time needed to argue the disclosure/ production issues as being attributable to the Crown. At paras. 186 to 190, and 199, Durno J. stated:

he respondent decided to request a lengthy list of additional disclosure items, which ultimately resulted in significantly more disclosure being "voluntarily" provided. It also resulted in two contested production motions. The trial judge "charged" the time for those motions against the Crown. He erred in so doing.

In Morin, the Supreme Court of Canada held that where actions of the accused, such as attacks on search warrants, delay proceedings, the time is not included in systemic delay or delay caused by the Crown. The trial judge found that the Crown should have disclosed the information he ordered produced, and therefore included the time in delay caused by the Crown. In doing so, he did not have the benefit of two recent Court of Appeal judgments which, while not on identical facts, are instructive on the issue.

In K.A., supra, the defence brought an application to obtain a series of reports concerning an internal review of previous autopsies conducted by the coroner in the case. The trial judge had found the time to successfully argue the motions, which were strenuously opposed by the Crown and counsel for the Solicitor General, was delay caused by the Crown, because he regarded Crown counsel's and counsel for the Solicitor General's conduct as oppressive and unprofessional, as well as that their arguments were without merit. The Court of Appeal rejected the trial judge's criticism of Crown Counsel, and held there were viable arguments presented in opposition to the application. The time should not have been regarded as delay caused by the Crown. Rather, if there was a reasonable basis upon which to resist the motion, the delay was not attributable to the Crown.

In R. v. Hape 2005 26591 (ON CA), [2005] O.J. No. 3188 (Ont. C.A.) (QL) affirming [2002] O.J. No. 5240 (S.C.J.), defence disclosure motions were held to be part of the inherent time requirements of the case.

Applying the rationale of these authorities and Morin, I am persuaded that in most of the areas argued on the motions, the Crown had a reasonable basis upon which to oppose the motion. In regards to the Intoxilyzer manual, since the Crown was unable to establish that the manual was subject to copyright, there was little if any merit in opposing the application. Even if it was subject to copyright, I agree with the trial judge's analysis that the copyright cannot trump Charter rights.

In A.K., the Court of Appeal held that "productions motions" were generally counted in the inherent time requirements, or against the party bringing the motion. That is consistent with position of the Supreme Court of Canada's judgment in Morin referred to above. Assuming there is a distinction between disclosure motions and production motions, since the items [page220] requested in A.K. were not in the possession of the prosecution, some of the items sought on the second disclosure application, or from the police by subpoenaing the Chief of Police, would fall into that category. To the extent that some of the items sought in the second disclosure application were properly the subject of a production motion, the delay in the trial proceeding as a result of those motions is properly either in the inherent time requirements of the case, or as a result of actions of the accused.

(Emphasis added)

[23] This passage appears to indicate that, even where unsuccessful, if the Crown has a reasonable basis to oppose a production/disclosure application, the reasonable attribution of time for that exercise will inure to either "inherent time requirements" or to "actions of the accused". As such, Durno J. applied a contextual analysis to his determination of "delay attribution".

Analysis

The standard

[24] Disclosure of the 2013 rolls is governed by the third-party disclosure regime as described in O'Connor. The 2013 Rolls are not the "fruits of the investigation" and do not relate directly to the guilt or innocence of the accused persons. Second, the records are not the kind of records normally kept by the Crown for the purposes of mounting a prosecution. Indeed, the records appear to be held by the ministry (as a separate branch of government from the Crown) and they appear to relate to the functioning of the court system as a whole. As such, I fail to see how the 2013 rolls could be considered to be Stinchcombe first-party disclosure.

Relevance

[25] I disagree with the Crown's position that any delay associated with bringing a Kokopenace application must, by definition, be attributed to either "Actions of the Accused" or "Inherent Delay". As was seen in Godin, the attribution of delay in a criminal case is contextual and depends upon the circumstances of each case.

[26] I do not read Ferguson or Faulkner as derogating from that principle. Ferguson clearly indicates that the attribution of time depends upon the "reasonableness" of the Crown's position which is, by definition, a contextual analysis. Equally, in Faulkner, Code J.'s reference to a "strong body" of case law does not go so far as to state that the case law constitutes a "bright line". Indeed, given the unique factual background of Faulkner, Code J. was not required to go beyond his relatively brief canvassing of the jurisprudence. As noted above, some of the cases quoted by [page221] Code J. seem to rely upon the fact that certiorari causes "pre-trial" delay and I note that the delay associated with a Kokopenace application is not necessarily pre-trial delay. Indeed, the delay could potentially be characterized as delay associated with trial readiness caused by inadequate institutional resources (depending upon what evidence is presented in the Kokopenace application).

[27] The next issue I must resolve is whether the 2013 rolls are likely to be relevant to the delay application that will be brought by the accused persons. I believe that the 2013 rolls are, in fact, likely relevant to the s. 11(b) analysis. Depending upon what they contain, the 2013 rolls could demonstrate that the state was in a position to provide the accused persons with a representative jury panel in 2013. Equally, the 2013 rolls could demonstrate that the jury panel was woefully unrepresentative such that immediate action was required by the state. Such findings will be necessary to contextualize the state's actions and the proper attribution of delay flowing therefrom. Without disclosure of the 2013 rolls, the jurist presiding over the s. 11(b) Charter application will not have the full context from which to decide (a) whether or not the state's efforts were sufficient given the situation it was facing; and (b) the attribution of any delay flowing from the Kokopenace application in light of the state's efforts.

[28] Therefore, while the state presented a reasonable argument opposing the production of the 2013 rolls, I nonetheless order disclosure of the 2013 rolls to the accused persons as soon as is practicable so as to avoid the possibility that the October Kokopenace application might have to be adjourned.

[29] I note that the Crown has agreed to disclose the 2014 jury rolls to accused counsel provided the latter agree to sign an undertaking not to divulge certain information contained on the jury rolls. I have attached a copy of that undertaking as Schedule 1 of this decision [schedule omitted]. I accept that the undertaking as worded is sufficient to safeguard the privacy interests of those people whose personal information appears on the rolls. Although I have not seen the 2013 rolls as per normal O'Connor procedure, I further order that, prior to the disclosure of the 2013 rolls, defence counsel must sign an undertaking regarding the 2013 rolls which is to be identical in form as the undertaking located in Schedule 1. Such an undertaking will adequately safeguard the privacy interests of those whose names appear on the 2013 rolls.

Motion granted.

End of Document