Court File and Parties

COURT FILE NO.: CR-16-70000102-00AP DATE: 20170615 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Appellant – and – W.R. Respondent

Counsel: Danielle Carbonneau, for the Crown, Appellant Paul Calarco, for W.R., Respondent

HEARD: June 13, 2017

PUBLICATION BAN ON THE NAME OF THE COMPLAINANT AND ACCUSED

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

BACKGROUND

1W.R. is an intellectually disabled aboriginal man. He was a resident in a group home. The complainant also resided in the group home. She suffers from Down’s Syndrome and functions at a 5-year-old level. At 1:30 am on April 3, 2015 one of the group home workers found W.R. in the complainant’s room. They were both naked. W.R. jumped off her and left the room. He was 59 at the time. She was 32.

2The complainant is non-verbal. She made a hand gesture suggesting that she had been sexually assaulted. She was taken to the hospital, where she made the same hand gesture and pointed to her vagina.

3The group home called the police. W.R. was arrested. He was bound by a recognizance at the time. He had been charged with indecent exposure about two months before this incident. The accused was taken into custody. His bail hearing commenced on April 16, 2015. He eventually spent about 5 ½ months in custody.

4The trial was to commence on December 16, 2016, some 21 months after charges were laid. W.R.’s counsel brought an application to stay the charges when R. v. Jordan, 2016 SCC 27 was released. The trial judge, Justice Blouin, granted the application. The Crown appeals. For the reasons that follow, the appeal is dismissed.

THE TRIAL JUDGE’S REASONS

5The trial judge found that the delay in the case was almost 21 months, from April 5, 2015 to December 16, 2016. The ceiling set for cases in the Ontario Court of Justice in Jordan is 18 months. The delay exceeded the Jordan guideline by about 3 months.

6The trial judge then found that there were no exceptional circumstances that could justify the delay. He noted that the Crown was required to call expert evidence on the issue of capacity to consent, given the complainant’s intellectual impairment and lack of verbal communication. The first two physicians consulted did not have the requisite expertise or did not produce a useful report. The physician ultimately retained by the Crown had difficult personal issues to deal with. She had to deal with personal and family illness.

[7] The trial judge held that the Crown made inadequate attempts to find expert evidence. Even if the doctor’s illness were a discrete event under the Jordan formula, he found, it would only have amounted to about two months. The ceiling for presumptive unreasonableness would still have been exceeded. The trial judge also found that

In my view the Crown has not satisfied the Court that reliance in the law as it exists played any role in the time taken for this case. They did not argue that it did, and I find that the previous delay regime would not have excused the delay.

ANALYSIS

8Crown counsel argues that the trial judge made three errors:

• First, he found that the case was not complex;
• Second, he failed to find that there was a discrete event; and,
• Third, he failed to apply the transitional exceptional provisions.

9There was, the Crown argues, a combination of discrete events and complexity that generated exceptional circumstances.

(a) Did the trial judge err in finding that the case was not complex?

10The Crown points out that the complainant and the accused both have serious intellectual disabilities. The Crown further points out that accused’s release plan had to be fashioned with the assistance of mental health support workers. The bail hearing was lengthy and raised many serious issues. The evidence itself, the Crown also argues, is also complex. The main complexity arises from the fact that expert evidence was required to demonstrate that the complainant is not capable of consenting. The Crown had to go through three different doctors in order to find one with sufficient expertise. The complainant also could not consent to the release of her medical records. Her guardian was required to do that on her behalf. All of that, the Crown argued, indicates complexity. The trial judge, the Crown argues, failed to properly weigh that.

11I respectfully disagree. I note first that the characterization of periods of delay is reviewable on a standard of correctness, but the underlying findings of fact are reviewable on a standard of palpable and over-riding error: R. v. Schertzer, 2009 ONCA 742 at para. 71. The assessment of whether a case is complex is a question of fact: R. v. MacMunn, 2008 ONCA 520 at para. 32.

12In this case, the trial judge found specifically that the case was not complex. That finding was open to him on the evidence. Unusually for a sexual assault case, this one featured a neutral professional as an eyewitness, which took credibility – the usual feature of a two-witness sexual assault case where the parties are known to each other – out of the equation.

[13] What is a complex case? A useful definition of a “major” case comes from the Public Prosecution Service of Canada Deskbook:

While major cases can arise for various reasons and have various characteristics, three features in particular commonly exist. First, they result from lengthy investigations, often involving wiretapping. Second, they generally concern joint enterprises. This usually means that there will be more than one accused, each facing many serious charges. Third, the cases are characterized by voluminous evidence. Because they deal with serious crime committed by persons who use sophisticated methods of avoiding detection and/or are engaged in extensive criminality, proof of the Crown's case may involve production of thousands of pages of wiretap transcripts, surveillance reports, business documents, witness statements and other documentary evidence.

[14] An example of complexity is set out in R. v. Schertzer, supra, at paras. 124-125:

There are a number of objective factors that suggest this was a very complex case. The long indictment included five accused. It related to events over a five-year period. While, as the trial judge noted, the substantive counts concerned discrete events, the Crown also alleged an overall conspiracy to obstruct justice. The complexity of the case is reflected in the length of the preliminary inquiry (six weeks of evidence), the time for the pre-trial motions (five months) and the projected length of the trial (six months).

Finally there is the disclosure. As the trial judge noted, by the time of the motion to stay the proceedings, the Crown had disclosed the equivalent of over 330,000 pages. However the complexity of the case is not simply reflected in the volume of disclosure, which, as explained above, is a somewhat misleading measure. The disclosure also required considerable editing or vetting because of privilege concerns. The defence made numerous extensive demands for disclosure, some of which were litigated in the pre-trial motions. There were also requests for documents held by third parties. Many of the disclosure and third-party demands did not relate to the core of the Crown's case, but concerned matters going to the credibility of Crown witnesses. For example, the defence sought the Crown briefs that underlay the convictions of a number of Crown witnesses. Some of these Crown briefs were held by the Toronto Police Service, but others were in the possession of other police forces and related to convictions that were entered many years earlier…

[15] Jordan itself provides a useful definition of complexity at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

16The Court went on to note that even a typical murder case will not usually be sufficiently complex to warrant an exceptional circumstance: Jordan, para. 78.

17If the mere necessity for expert evidence were the mark of a complex case, then many, many cases that are plainly simple would be characterized this way. That would include almost every case involving possession of drugs for the purpose of trafficking; almost every impaired driving case where the police did not take breath samples within the two-hour window; every burglary case involving a latent fingerprint. Expert evidence of this kind is routine even in summary cases in the Ontario Court of Justice. The trial judge was in the best position to determine whether complexity existed: Jordan, at para. 78. I see no error in his analysis.

(b) Did the trial judge err by not finding a discrete event?

18The Crown argues that several factors contributed to delay that were beyond its control. The complainant had a substitute decision maker who had to give the Crown consent to obtain medical records. In the late fall of 2015 the complainant was hospitalized for pneumonia. The psychiatrist retained by the Crown, Dr. Chow, had issues of family illness as well as her own illnesses. These time periods all constituted discrete events. The trial judge, the Crown argues, failed to take them into account and therefore erred.

19I respectfully disagree. Whether something is a discrete event is a factual issue. Absent palpable and over-riding error, a Court cannot intervene: Schertzer, supra. The trial judge found that the Crown’s attempts to retain a physician on the issue of capacity to consent were inadequate. There was evidence to support this finding. Moreover, I do not understand how the Crown can, on the one hand, say that the case was complex requiring specialized forensic psychiatric evidence but then take no action to retain a specialized forensic psychiatrist until nine months after the charges were laid. The same question apparently perplexed the trial judge.

20The complainant’s capacity was the central issue in the case right from the beginning. Everyone recognized that. The complainant’s substitute decision maker was at the hospital when the police attended. On June 1, 2015 Ms. Ropchan, W.R.’s counsel, wrote to the Crown for any records relating to the complainant’s capacity. On June 24, 2015 Crown counsel wrote to Ms. Ropchan indicating that she had emailed the officer-in-charge of the case regarding the need for evidence about the complainant’s capacity. It was not, however, until July when the officer-in-charge approached the substitute decision maker for the requisite consents for the complainant’s medical records. The substitute decision-maker was on holiday, which added further delay. A will-state from the complainant’s doctor was disclosed on August 7, 2015. That was four months after the incident. The will-state, as Crown counsel noted, was inadequate to address the issue of capacity.

21Another physician was approached on November 5, 2015. That doctor indicated on December 21, 2015 that he did not have the expertise to prepare a report. Further disclosure of other medical reports was made at the end of December 2015. That disclosure was also inadequate. It did not properly address the central issue of the complainant’s capacity to consent.

22Crown counsel did not submit a referral to the Center for Addiction and Mental Health (CAMH) until January 8, 2016 – some nine months after the charges were laid. The Crown did not retain Dr. Chow, the forensic psychiatrist, until January 15, 2016.

23The complainant was in the hospital from December 30, 2015 until some time in February 2016. Dr. Chow was not able to interview her until February 16, 2016. Ordinarily it would have taken Dr. Chow four to six weeks to prepare a report. She had some personal issues, however – an illness in her family and her own illness. It did not cross Dr. Chow’s mind to look to another colleague when this happened. Furthermore, Dr. Chow wanted to keep the case because of her interest in the issues. All of that contributed to the delay.

24A trial date of June 26, 2016 had been set. On March 21, 2016 there was a further judicial pre-trial. No expert report had been generated or disclosed. The trial had to be vacated. Ultimately, Dr. Chow’s report was sent on May 19, 2016. That was more than a year after the incident. A new trial date of December 16, 2016 was set, 21 months after the charges were laid.

25As the trial judge recognized, the real question was not whether the complainant was in the hospital or Dr. Chow had an illness in her family. The real question was whether the Crown acted with diligence in retaining a forensic psychiatrist. The trial judge found that the Crown did not. That was a finding that was open to him on the evidence. If Dr. Chow had been retained within some reasonable period of time after the charges were laid there would have been no issue of discrete events. But that is not what happened and the June 2016 trial date was lost. I see no error by the trial judge.

26I do want to pause to make a point about the efforts of Crown and defence counsel. The trial judge praised the Crown’s assigned case manager, Ms. Kromm, as diligent and thoughtful. I have had the opportunity to read the correspondence brief. I agree with the trial judge’s assessment. W.R.’s counsel, Ms. Ropchan, was also very diligent in protecting her client. The delay in this case did not occur because any particular individual failed. The trial judge found that as an institution Crown did not pay enough attention to the need for expert evidence early enough in the process. That finding was open to him on the evidence. Difficulty in retaining experts is common to many criminal cases. That in and of itself is not enough to generate exceptional circumstances.

(c) Did the trial judge err in applying the transitional exceptional provisions?

27The Crown argues that the trial judge erred by failing to find that the parties had relied in good faith on the law as it was before Jordan. Under the Morin analysis, the Crown says, the trial judge should have applied a contextual approach: R. v. Morin, [1993] 1 S.C.R. 771; R. v. Askov, [1990] 2 S.C.R. 1199. That would have included evaluating the state of affairs at College Park, a very busy courthouse of the Ontario Court of Justice.

28I respectfully disagree. The trial judge noted that even under Morin he would have found unreasonable delay. That was a reasonable finding. Under the Morin guidelines acceptable delay in the Ontario Court of Justice is 10-12 months. This case took 21 months to get to trial. The defence was responsible for virtually none of the delay. While W.R. was in bail court, the matter was not assigned to a Crown – an institutional issue that had nothing to do with the defence. Moreover, the real source of delay, as noted, was the fact that the Crown did not retain Dr. Chow until some nine months after charges were laid. Most of that delay under the Morin analysis would have been attributed to the Crown. As Mr. Calarco points out in his submissions, part of the context includes the fact that W.R., a developmentally delayed aboriginal man, spent 5 ½ months in custody while the Crown did not obtain the requisite expert evidence. The trial judge, a highly experienced judge of the Ontario Court of Justice, was obviously quite familiar with the conditions at the College Park Courthouse. I see no error.

DISPOSITION

29The appeal is dismissed.

R.F. Goldstein J.