CITATION: R. v. Rock, 2015 ONSC 3906

COURT FILE NO.: 11540

DATE: 2015/06/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

David Rock

G. Fowler, for the Respondent

O. Afolabi, for the Applicant

HEARD: May 22, 2015

GRACE J.:

RULING ON SECTION 11(b) CHARTER APPLICATION

A. Overview

[1] Mr. Rock alleges that his right to be tried within a reasonable time has been violated. He seeks a stay of this proceeding.

[2] The Crown acknowledges that the thirty and a half month period between arrest (December 19, 2012) and the scheduled trial date (June 29, 2015) warrants review. However, the Crown submits that an analysis of the reasons for the passage of time leads to the conclusion that s. 11(b) of the Charter of Rights and Freedoms (‘Charter’) has not been violated.

[3] For the reasons that follow I agree with the Crown’s position and have concluded the application should be dismissed.

B. Analysis and Decision

[4] As a result of the execution of a search warrant, several videos were located and seized by the police. Mr. Rock was charged with two counts of possessing and one count of accessing child pornography without lawful excuse contrary to ss. 163.1(4) and (4.1) respectively of the Criminal Code.

[5] The matter remained in the Ontario Court of Justice from Mr. Rock’s first appearance on January 24, 2013 until he was committed for trial by LeRoy J. on one count of possessing child pornography without lawful excuse on February 7, 2014.

[6] Appearances in this Court commenced on March 18, 2014. As noted, trial is scheduled to commence on June 29, 2015.

[7] The applicable legal principles are not in dispute. The onus of proving a breach of s. 11(b) lies with Mr. Rock. If established, the appropriate remedy is a stay.

[8] Section 11(b) of the Charter protects Mr. Rock’s individual rights. It also safeguards the public’s interest in having those charged with a crime dealt with fairly and in a timely way. R. v. Qureshi (2004) 2004 CanLII 40657 (ON CA), 190 C.C.C. (3D) 453 (Ont. C.A.) at paras. 8-10.

[9] The court must take into account:

(a) the length of the delay;

(b) a waiver of all or some of the elapsed time;

(c) the reasons for the delay taking into account the case’s inherent time requirements; the actions of each party; institutional delay and any other relevant circumstance; and

(d) any prejudice to the accused: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at para. 31.

[10] In this case a focused analysis is possible.

[11] The process undertaken by the Crown to unseal, vet and provide and by the defence to review the information to obtain (“ITO”) occupied the period from January 24 to May 9, 2013. That time was inherent in the process and should be characterized as neutral in the s. 11(b) analysis.

[12] An August 15, 2013 preliminary hearing date was scheduled at the last mentioned attendance. Four hours were set aside. The record does not explain how the date was arrived at. Nonetheless, I am content that the period (three months and one week) be characterized as institutional delay.

[13] The discovery that a Crown witness was unavailable necessitated the rescheduling of the preliminary hearing date on June 20, 2013. Four hours were reserved on December 13, 2013 for that purpose. The almost four month delay between the two preliminary hearing dates is attributable to the Crown.

[14] The preliminary hearing did not proceed on the rescheduled date either. It is clear from the transcript that the four hour time estimate was inaccurate. The assigned justice was not able to accommodate the actual time requirement. A third date (January 23, 2014) was arranged. It does not appear that the parties heeded Pockele J.’s June 12, 2013 suggestion that they:

…have a heart to heart in front of a judge to try and expedite this preliminary hearing.

[15] Pockele J. added:

At least with the discovery prelim, you can go probably a little longer on your cross-examination.

[16] At an earlier point during that attendance Mr. Rock’s counsel advised the court that whether the images on the videos were actually pornographic was the issue to be canvassed during the preliminary hearing.

[17] With respect, the estimated length of the preliminary hearing was clearly inadequate when scheduled. The one month and ten day delay between the second and third dates is attributable to the defence.

[18] The preliminary hearing was conducted on January 23, 2014. Decision was reserved until February 7, 2014 on two of the three counts. As noted, Mr. Rock was committed to trial on one charge which is the subject of the March 11, 2014 indictment.

[19] Pausing here, the aggregate seven month of Crown and institutional delay in the Ontario Court of Justice is unremarkable and within the guidelines established in R. v. Morin, supra at para. 55.[^1]

[20] I turn to this Court.

[21] It is fair to say that initially the matter proceeded apace.

[22] An April 4, 2014 judicial pre-trial was held as scheduled during the first March 18, 2014 attendance.

[23] The matter returned to the April 15, 2014 assignment court. This period of time was a natural product of Mr. Rock’s election to be tried in this court. That time is also neutral in the s. 11(b) analysis.

[24] During that attendance an August 19, 2014 trial date was arranged on consent. An earlier (May 20) date had been suggested but could not be accommodated by the Crown.

[25] That day the defence confirmed that it would be proceeding with an application under s. 8 of the Charter. As is the practice in this jurisdiction, the matter was adjourned to July 17, 2014 so that the parties could advise whether they were ready to proceed with the s. 8 Charter application and trial on the scheduled dates.

[26] However, on June 5, 2014, the landscape began to shift. That was the first of many defence requests for further Crown disclosure following provision of the ITO. Additional requests were made on June 17, 23, July 9, August 27, November 3, 2014, March 27 and April 23, 2015.

[27] The defence requested production of the notes of various police officers (at least sixteen by my count) and doctors (four of them) plus what is described as “electronic storage”.

[28] Information was provided by the Crown on July 25, 29, August 12, September 15, November 19, and December 3, 2014 and shortly before the return of this application.

[29] The actual requests and responses were not, however, provided to me for my review.

[30] The application/trial readiness attendance occurred on July 17, 2014 as scheduled. In her endorsement, Leitch J. wrote in part:

The matter is not ready for trial as of today. There is a disclosure application which is not yet in the file. That has been scheduled to be heard July 25, 2014. One of the alternative grounds for relief I am advised is an adjournment of the trial. I note that this matter received an expedited trial date…The issue of trial readiness will be addressed at the July 25, 2014…hearing…

[31] In fact, the trial was adjourned on the next attendance. On July 25, 2014, Rady J. wrote:

Disclosure is ongoing in response to the defence requests made – following the P/T with Goodman J. in April 2014. Disclosure was noted as complete at that time. In any event, the Crown is continuing to make the disclosure requested. It is ready for trial. However, the defence is not ready for trial given the ongoing disclosure. The Aug. 19 trial date is vacated...

[32] The matter was adjourned to the August 12, 2014 assignment court to set a new trial date. However, it was not scheduled on that occasion. Disclosure was the continuing issue. According to the Crown the request related to the s. 8 Charter application the defence had filed in July. With respect to the issue of delay, counsel for the defendant advised the court that:

11(b) was not an issue, because we had a quick trial date, but I anticipate that it will be an issue, depending on when we set the trial date. It’s – this matter has been going on since 2012.

[33] On consent the matter was adjourned to the September 9, 2014 assignment court for the purpose of setting a new trial date peremptory on both parties.

[34] During that attendance counsel for the defence indicated that he had received some but not all of the requested disclosure. He added:

I can’t make changes to the application if I don’t receive that disclosure.

[35] Nonetheless, the trial was scheduled to commence June 29, 2015.

[36] The defence attributes the entire period from the original trial date (August 19, 2014) to the current trial date (June 29, 2015) to institutional or Crown delay. The Crown, however, allocates the entire period of 313 days to the defence.

[37] The defence submission is based on the premise that the Crown failed to disclose all relevant information in a timely fashion: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[38] Unquestionably the Crown’s disclosure obligation is very broad. In the unanimous judgment of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 17, Charron J. wrote in part:

The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against the 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…

[39] In this case, the defence requested a copy of the ITO. On April 11, 2013, the defence acknowledged having received a copy of it. During the next attendance on May 9, 2013, the accused elected the mode of trial[^2] and the first date for the preliminary hearing was set.

[40] For more than a year thereafter, disclosure was mentioned only once and then only in passing. That occurred during the April 4, 2014 pre-trial. In the report to trial judge, Goodman J. noted that the defence was awaiting advice as to “where the file was located on the hard drive”.[^3] As already noted, a trial date was set on consent during the next attendance in assignment court.

[41] The report to trial judge did not mention an outstanding request for notes or other documents referred to in the ITO because there had not been one to that point.

[42] According to that report the matters to be determined at trial consisted of the s. 8 Charter application and whether the images in the seized videos were pornographic.

[43] Starting on June 5, 2014 the defence requested notes prepared by persons mentioned in the ITO. As is evident from the material filed by Mr. Rock on the application, additional requests were made on July 9, 2014.

[44] For whatever reason, it does not appear as though the defence turned its mind fully to the evidence it thought relevant to the s. 8 application until trial was approximately two and a half months away.

[45] The timing of the requests created a problem. As noted, an early trial date had been obtained on April 15, 2014. Trial was to commence four months later.

[46] While the defence maintains that the requested disclosure could have been easily retrieved by the Crown, the record compiled on this application does not allow me to reach that conclusion.

[47] The defence had brought an application in July, 2014, because of its dissatisfaction with the Crown’s response to the requests to which I have referred. In descending order Mr. Rock sought: (a) an order that Mr. Rock’s rights under ss. 7 and 11(d) of the Charter were being breached; (b) an order requiring the Crown to fulfill the disclosure requests in sufficient time to allow the defence to be prepared for the August 19, 2014 trial; (c) an order that the trial be adjourned; (d) an order staying the proceeding and ordering the Crown to pay costs.

[48] I have already mentioned Rady J.’s July 25, 2014 endorsement. That is the day the application relating to disclosure came on for hearing. The transcript of that attendance is instructive. At the outset of the appearance, Rady J. requested a time estimate. Mr. Rock’s counsel replied:

I don’t anticipate it’s going to take much longer, ‘cause my friend and I, we’ve been having discussions and it seems like we’re heading to an adjournment of the trial, ‘cause the disclosure that’s required isn’t all, it’s not all ready…

[49] Counsel were allowed to stand the matter down while they continued their discussions. During the exchange that followed their return, Mr. Rock’s counsel advised the court:

…I’ll be patient until we get all the disclosure. We could adjourn and we’ll have to set…another trial date on the matter.

[50] The application returnable that day was resolved on that basis notwithstanding Rady J.’s comment that:

…it seems to me that the request for disclosure [is] a bit late breaking…

[51] Disclosure featured during the September 9, 2014 assignment court attendance. The current trial date was offered and noted as “agreeable” by the defence and Crown without adverse comment or a request for an earlier date. A trial readiness attendance was scheduled for a month, rather than the usual four days, beforehand “to make sure that disclosure has been provided.”

[52] This recitation of events leads me to the conclusion that the defence characterization of the delay in Mr. Rock’s trial as institutional and/or Crown delay is incorrect.

[53] In Morin, supra at para. 47, Sopinka J. said that institutional delay “starts to run when parties are ready for trial but the system cannot accommodate them.” In fact, the defence was not ready for trial when the first date was set. The second date was set with the expectation the parties would be ready before it arrived.

[54] With respect to the Crown, Mr. Rock ignores the fact that its disclosure obligation is, as set forth in McNeil, supra, “triggered upon request”. The defence made its decision to probe deeper into the ITO late in the process. I am not critical of the defence for making additional disclosure requests but their timing had predictable consequences. Indeed, before Rady J. the defence recognized the inevitability of an adjournment of the trial as a result of the timing of its requests. Responsibility for the passage of an additional ten months between the two trial dates lies with the defence.

[55] Having considered the passage of time in the Ontario Court of Justice and this court, the reasons for periodic delays, the allegations of prejudice advanced by Mr. Rock[^4] and the public interest in a trial of the outstanding charge on the merits, I have concluded that Mr. Rock has not established a breach of his s. 11(b) right. The application is dismissed.

“Justice A. D. Grace”

Justice A. D. Grace

Released: June 15, 2015

[^1]: I have in mind the period from May 9, 2013 (the end of the intake period) until February 7, 2014. That is a period of nine months. [^2]: He later re-elected. [^3]: In that context it referred to an “Encase report”. [^4]: The application materials included an affidavit of Mr. Rock sworn April 27, 2015. He also testified on the return of the application. He alleged that his electronic and mechanical repair and amateur videographer businesses and personal relationships have suffered as a result of publicity concerning the charge. He also alleges that the weekly reporting requirement as a term of his release is onerous.