Ontario Superior Court of Justice
CITATION: R. v. Lee, 2017 ONSC 4862 COURT FILE NO.: CR/15/10000/4080000 DATE: 2017-07-18
BETWEEN:
Her Majesty the Queen Respondent
- and -
Shane Lee Applicant
COUNSEL: Ms. J. Gibson, for the Respondent Mr. D. Connally for the Applicant
HEARD: June 26 and 27, 2017
M. FORESTELL J.
RULING ON A SECTION 11(B) APPLICATION
1. Nature of the Application
[1] The applicant, Shane Lee, brings an application for a stay of the charges against him on the grounds that his right to be tried within a reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter"), has been infringed.
[2] The applicant is charged with making child pornography available, possessing child pornography and accessing child pornography. The offences are alleged to have occurred on or about September 9, 2013. The applicant's two computers were seized pursuant to search warrants on September 20, 2013. The information was sworn and the Applicant arrested on March 25, 2014.
[3] The total delay from the date that the information was sworn to the anticipated end of the trial is just over 39 months.
2. The Framework of the Analysis
[4] The framework for the determination of this application was articulated by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 and recently reaffirmed and clarified in the decision of the Supreme Court of Canada in R. v. Cody, 2017 SCC 31.
[5] In Jordan, presumptive ceilings were set by the Supreme Court of Canada for reasonable trial delay. These ceilings are 18 months in the Provincial Courts and 30 months in the Superior Courts. Delays beyond the ceilings are presumptively unreasonable.
[6] The steps in the Jordan analysis may be summarized as follows:
- Calculate the total delay from the charge to the anticipated end of trial;
- Subtract any delay attributable to the defence from the total delay to determine the 'net delay';
- (a) If the net delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by establishing that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have; or (b) If the net delay exceeds the ceiling, the delay is presumptively unreasonable and the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are circumstances that are reasonably unforeseen and cannot be reasonably remedied by the Crown once they arise. Exceptional circumstances will generally fall into one of two categories; discrete events or particularly complex cases.
- If the charges were laid before the release of Jordan, the net delay exceeds the presumptive ceiling after the deduction of defence delay and exceptional circumstances do not justify the delay, a transitional exceptional circumstance assessment must be undertaken.
3. Positions of the Parties
[7] The relevant periods of delay and the reasons for each period of delay are not in dispute. The chart contained in the defence factum sets out the reasons for each adjournment of the case. That chart is attached as Appendix "A" to these reasons.[^1]
[8] The Crown, while agreeing that the chart accurately reflects the reasons for each period of delay, disagrees with the attribution of certain periods of delay. The Crown argues that approximately 11 months of delay should be attributed to the defence. Additionally, the Crown submits that 10 days should be deducted as a 'discrete event' exceptional circumstance. The Crown calculates the net delay as thus falling below the presumptive ceiling after the deduction of defence delay. Alternatively, the Crown argues that, given the need to forensically analyze two computers, any delay over the ceiling would be justified by the complexity of the case. In the further alternative, the Crown argues that an application of the transitional exceptional circumstances assessment justifies the delay in this case
[9] The defence submits that the only period of defence delay was 5 months, resulting in a net delay of 34 months. The defence concedes that counsel having to leave court to attend his child's birth resulted in a 10-day delay that is properly characterized as a discrete event exceptional circumstance. The delay still exceeds the presumptive ceiling by over 3 months. The defence argues that the case was not complex and the delay cannot be justified based on complexity. Applying the transitional exceptional circumstance assessment, the defence argues that the delay exceeds the delay that would have been reasonable under the former Morin framework and cannot be justified.
[10] For the reasons that follow, I have concluded that the delay was unreasonable and that the charges must be stayed.
4. Analysis
What period of delay is properly attributable to the defence?
Principles
[11] In R. v. Jordan, the majority held that "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" (Jordan, para. 65). In R. v. Cody, the Supreme Court clarified the concept of defence delay.
[12] Not all delay caused by defence conduct is deducted. In setting the presumptive ceilings in Jordan, the Court recognized that the defence requires time to prepare and present its case. The presumptive ceilings take that time into account. At paragraph 30 of Cody, the Court wrote: "the only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges." By way of example, in Jordan the majority put forward circumstances such as frivolous applications and requests, and circumstances where the court and the Crown are prepared to proceed, but the defence is not. These were, however, only examples. They do not exhaustively define deductible defence delay (Cody paragraph 30).
[13] In Cody, the Court explained the approach to be taken to the assessment of defence delay, writing as follows:
¶32 Defence conduct encompasses both substance and procedure—the decision to take a step as well as the manner in which it is conducted may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
¶33 As well, inaction may amount to defence conduct that is not legitimate (Jordan at paras 113 and 121). Illegitimacy may extend to omissions as well as acts (see for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right 'to be tried within a reasonable time' is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to 'actively advance[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and …us[e]court time efficiently (Jordan, at para. 138).
¶34 This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling…
Disputed periods of Delay
[14] The first trial date in the Superior Court in this case was November 14, 2016. The case was scheduled to proceed on that date for 7 days. On November 9, 2016 the defence brought the case forward and requested an adjournment because an out of country witness had just been located. The witness was the former roommate of the Applicant. The former roommate was a potential Crown witness but the Crown was prepared to proceed without the witness. The defence had attempted to locate the witness and had enlisted the assistance of the Crown and police to locate the witness. The witness was important to the defence because the identity of the person or persons with access to the computers at the relevant time was in issue. A new trial date was set of April 10, 2017. Section 11(b) delay for this period was explicitly waived by the defence.
[15] There are three periods of delay that the Crown argues should be categorized as defence delay and that the defence disputes:
1. Delay Caused by Re-election in the Provincial Court
The defence initially indicated that Mr. Lee would elect to have trial in the Ontario Court of Justice. It was estimated that the trial would take four days. On October 29, 2014 a four-day trial was scheduled for July 6, 2015. On June 15, 2015, having given proper notice to the Crown, counsel for Mr. Lee appeared and advised the Court that Mr. Lee would be electing to have a trial in the Superior Court. The Court was also advised that all four days scheduled would not be required. It was agreed that committal for trial would be conceded and that a discovery preliminary inquiry process would be appropriate. The issues had been narrowed and only two days would be required. The matter was adjourned to July 8, 2015 for the discovery preliminary inquiry. The Crown argues that some portion of the 8 months and 10 days between October 29, 2014 and July 8, 2015 should be attributed to defence delay. The Crown submits that if the defence had indicated at the outset that only 2 days were required, an earlier date would have been set. The Crown argues that 3 months of the 8 months and 10 days delay should be attributed to defence delay.
2. Delay to Seek Instructions
After a Judicial Pre-trial in the Superior Court on October 5, 2015, the Crown was prepared to set a date for trial. Counsel for Mr. Lee asked that the matter be adjourned to October 8th to seek instructions. On October 8, 2015 the matter was again adjourned to November 10th at the request of the defence to seek instructions. The Crown submits that because the Court and the Crown were prepared to proceed, this period of time should be deducted as defence delay.
3. Adjournment of Trial Date
On April 6, 2017 the defence brought an adjournment application. The defence had received disclosure of an expert's report on March 31, 2017. The adjournment was granted. A new date of June 26, 2017 was subsequently set. The Crown argues that the 2.5 months' delay resulting from the adjournment of the second trial date should be attributed to defence delay because the expert report contained little new information and the trial ought to have proceeded.
[16] I do not find that any part of the 8 month and 10 day delay between setting a date for trial in the provincial court and the completion of the discovery preliminary inquiry should be characterized as defence delay. Applying the principles set out in Jordan and Cody, I do not find that this delay was caused solely or directly by the accused or that it was not legitimate.
[17] I accept the Crown's assertion that an earlier date could have been obtained if the defence had re-elected earlier and indicated that a two-day discovery preliminary was necessary rather than a four-day trial. Although there is no evidence before me of the scheduling practices at Old City Hall in 2014 and 2015, it makes sense that a shorter proceeding that does not require a judge can be scheduled earlier than a longer proceeding that requires a judge.
[18] I have considered the step taken by the defence in re-electing and the manner in which that step was taken. There is no dispute that the defence had the right to re-elect. The issue with respect to this period of delay is not the re-election but its timing.
[19] The stated reason for the re-election was to explore the evidence related to the Charter issues. At the time of the re-election, the Crown explained to the Court that the Crown anticipated that the defence was "going to put many pointed questions to the police officers and possibly bring a Charter application in Superior Court based on their testimony…". The presiding judge then said to defence counsel, "I take it your real interest is looking at information behind the search warrant…". Counsel responded, "Exactly. My interest here is giving some flesh on the balance of what I already have from the officers."
[20] The context for the re-election was that the scheduled trial date was less than one month away and the defence had been provided with only one search warrant and Information to Obtain. The defence had made an early and detailed request for disclosure that requested, inter alia, "the Information to obtain the search warrant(s) in this matter." In light of the failure to disclose a second warrant, the defence reasonably believed the second search to be warrantless and reasonably believed that the exploration of the resulting Charter issues was necessary Where, as in this case, there is late disclosure of an important item, the defence cannot be held accountable for the ensuing delay. In this case it was only during the cross-examination on the discovery preliminary inquiry that it came to light that a second search warrant existed. The discovery preliminary inquiry was adjourned for the disclosure to be provided.
[21] I find that, in these circumstances, the delay caused by the timing of the re-election was not directly or solely caused by the accused. I further find that the action taken by the defence to re-elect at a late date in order to explore the Charter issues through a discovery preliminary inquiry process was legitimate conduct and that the timing was reasonable. To be clear, this would not always be the case. If counsel have no reason for the timing of the re-election that occasions delay and the actions of the Crown play no role in the timing, some portion of the resulting delay may well be deducted. That is not the situation before me. I would not deduct any portion of the 8.5 months as defence delay.
[22] Some delay to seek instructions following a judicial pre-trial is properly characterized as part of the procedural requirements of the case and should be viewed as being accounted for in the presumptive ceilings. However, the delay of over one month, from October 5th to November 10th 2015, was not reasonable. Counsel for the Applicant argues that the fact that the Applicant was living outside Toronto made the process of obtaining instructions more difficult. Even accepting that submission, I find that one week of delay for instructions would have been reasonable. I conclude that 21 days should be attributed to defence delay.
[23] With respect to the final adjournment from April 10 to June 26, 2017, I conclude that the delay was not caused directly or solely by the accused. I also find that the action of the defence was legitimate. Disclosure of expert evidence on a central issue was provided 10 days before the start of the trial.
[24] The further report sets out the results of a further analysis of the contents of the computers conducted at the request of the Crown. The analysis is directed at establishing that it was the accused using the computer at the relevant times. As noted above, the identity of the person who used the computer at the relevant times was an issue given the fact that the accused had a roommate. There is no evidence on the record before me to indicate the date on which the further expert report was requested by the Crown. There is no explanation on the record before me of the reason for the late preparation and disclosure of this report.
[25] I appreciate that the new material comprised only 2.5 typed pages. However, the information was central to a significant issue at trial. It was technical information. It necessitate re-interviewing witnesses including one witness who lived out of the country.
[26] It would be unreasonable to expect counsel to be in a position to respond to the report in the timeframe available given the technical nature of the evidence and the need to re-interview witnesses and obtain instructions.
[27] I find that the delay occasioned by the adjournment of the trial cannot be characterized as defence delay. It was not caused solely or directly by the accused. The late disclosure of the expert report caused the delay. It cannot be characterized as illegitimate conduct in the circumstances. Neither the step taken nor the manner in which it was taken was directed at causing delay.
Conclusion on Defence Delay
[28] I find that none of the disputed periods of delay can be characterized as defence delay with the exception of some portion of the one month taken to obtain instructions after the Judicial Pre-trial in this Court. I would deduct 21 days as defence delay to seek instructions. The net delay, therefore, after the deduction of defence delay of 5 months and 21 days is 33 months and 15 days.
What delay should be deducted as a 'discrete Event' exceptional circumstance?
[29] It is conceded by the Applicant that the 10 day-delay resulting from counsel's absence when his wife went into labour is a discrete event properly characterized as an exceptional circumstance and should be deducted. This brings the Jordan delay to 33 months and 5 days.
Is delay beyond the presumptive ceiling justified given the particular complexity of the case?
[30] In Cody, the Court explained that the presumptive ceilings already reflect the increased complexity of cases generally since R. v. Morin. The assessment of 'particular complexity' involves a qualitative assessment. A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, requires an inordinate amount of trial or preparation time." (Jordan, at para. 77; Cody at para. 64.) The Crown argues that the delay beyond the presumptive ceiling is justified by the complexity of the case. The Crown points to the forensic examination of two computers as justifying the delay. It is argued that the examination involved a forensic search for images and videos that met the definition of child pornography and an examination that would provide information about the users of the computers. Four reports were generated.
[31] Although four reports were generated over the course of the three and one-half years between the seizure of the computers and the last report which was provided on March 31st of 2017, there is no evidence that the forensic examinations required three and one-half years to complete. On the contrary, the examinations appear from the record to have been conducted over the course of a total of 8 days. There is no explanation before me of the reason for the delay or the reason that the last expert report was provided to the defence 10 days before the scheduled trial date.
[32] This trial was scheduled as a four-day judge alone trial. There are no Charter issues raised other than this application for a stay for unreasonable delay.
[33] I do not find that the case is particularly complex so as to justify a delay beyond the presumptive ceiling.
Is the delay reasonable given the transitional exceptional circumstances?
[34] This case was in the system for 27.5 months before the release of the judgment of the Supreme Court of Canada in Jordan on July 8, 2016. The last step in the Jordan analysis is the consideration of whether the time the case has taken to get to trial is justified based on "the parties' reasonable reliance on the law as it previously existed." (Jordan, paras. 96-97; Cody, para. 68.)
[35] The chart prepared by the Applicant and setting out each period of delay, the reasons for the delay and the characterization of the delay pursuant to the Jordan and Morin analyses is attached to these reasons as Appendix "A".
[36] The Crown does not dispute the characterization of the delay with the exception of 48 days between the Judicial Pre-trial in Superior Court and the date when the first trial date was scheduled. I agree that under the Morin framework, this period should not be characterized as institutional delay. However, even without this 48-day period, the institutional and Crown delay is 27.5 months. This far exceeds the Morin guidelines.
[37] I must also consider the seriousness of the offence and any prejudice.
[38] In this case the charges are extremely serious. The child pornography industry victimizes the vulnerable. Even those who are not implicated in the making of child pornography bear a level of responsibility for the harm to those victims.
[39] There is evidence before me of actual prejudice to the Applicant. He has suffered from stress, anxiety and sleeplessness to the point of requiring medication. He is required to live with his surety in a small community and has been isolated from the support of friends. He lost his employment and has not been able to obtain similar employment because of the outstanding charges.
[40] I have considered the general level of diligence of the parties in my consideration of the transitional exceptional circumstances. Counsel for the Applicant made efforts to expedite the proceedings from the outset. Although the trial was adjourned by the defence, two out of the three adjournments were directly caused by late disclosure of material that was clearly central to the issues in the case. The second search warrant and Information to obtain it were disclosed during the discovery preliminary although it was made clear from an early date that the search was in issue. The final expert report was provided 10 days before the trial date. There is nothing in the record before me to explain the reasons for the late disclosure of the warrant or the report. There is no evidence of when the final report of the expert was requested by the Crown, although it is clear that there was a request made.
[41] I find that there was substantial prejudice to the Applicant occasioned by the delay. Although the charges are extremely serious, the delay in this case cannot be justified based on the parties' reliance on the previous state of the law. I therefore find that the delay was unreasonable.
5. Conclusion
[42] For the foregoing reasons, the application is allowed and the charges are stayed.
M. Forestell J.
Released: July 18, 2017
Appendix "A"
| TAB | DATE | COURT | DETAILS | DELAY FROM LAST COURT DATE (in days) | MORIN | JORDAN | TOTAL DELAY (in days) |
|---|---|---|---|---|---|---|---|
| 1 | March 25, 2014 | BAIL | Consent release to surety; defence noted it had already been 6 months since beginning of police investigation into Mr. Lee | 0 | Intake | 0 | |
| 2 | April 3, 2014 | J (set date) | 1st appearance after show cause; no disclosure available | 29 | Intake | 29 | |
| 3 | April 17, 2014 | J (set date) | Initial disclosure provided; counsel notes willingness to move matter forward | 14 | Intake | 43 | |
| 4 | May 15, 2014 | J (set date) | Crown advised that initial disclosure would be provided forthwith; counsel reiterated willingness to move matter forward | 28 | Intake | 71 | |
| 5 | June 19, 2014 | J (set date) | Still awaiting disclosure; no substantive disclosure provided as of this date; defence request to go before a judge for case management; Crown first available date July 3, 2014; matter adjourned to July 3, 2014 in 112 | 35 | Crown | 106 | |
| 6 | July 3, 2014 | 112, traversed to J (set date) | Disclosure being made available; Crown advises extraction of data from computer taking time | 10 | Crown | 116 | |
| 7 | August 7, 2014 | J (set date) | Still receiving disclosure; officer notes and charge screening form disclosed | 35 | Crown | 151 | |
| 8 | August 21, 2014 | J (set date) | Still awaiting ITO for accused’s computer; Crown aware of repeated defence disclosure requests and advises she has requested same from police | 14 | Crown | 165 | |
| 9 | September 18, 2014 | J (set date) | Disclosure still outstanding; Crown and defence agree to set JPT to try to move matter forward; JPT set | 28 | Crown | 193 | |
| 10 | October 2, 2014 | J (set date) | JPT held on September 30, 2014; further JPT booked for October 29, 2014; disclosure still outstanding | 14 | Inherent / Crown | 207 | |
| 11 | October 29, 2014 | 112 (practice court) | JPT # 2 held; 4-day trial set; May 25, 2015 first date offered by the court; Crown and defence unavailable for May 25; Crown unavailable June 1 – 5; Defence unavailable June 8 – 12; 15 – 19; 22-26; July 6, 2015 set for trial | 27 | Inherent | 234 | |
| 12 | June 15, 2015 | 112 (practice court) | Accused re-elects mode of trial as of right from trial in the OCJ to preliminary inquiry followed by SCJ trial with a view to discovering OIC to set up Charter arguments at trial | 230 | Institutional | 464 | |
| 13 | July 8, 2015 | J (discovery preliminary inquiry) | Existence of a 2nd ITO disclosed for first time; ITO disclosed to counsel; discovery cut short and matter committed to SCJ with intention of competing discovery hearing after review of 2nd ITO | 22 | Institutional | 486 | |
| 14 | August 26, 2015 | 361 | First appearance in SCJ; JPT date of October 5, 2015 selected | 56 | Institutional | 542 | |
| 15 | October 5, 2015 | 361 | JPT conducted; matter adjourned for counsel to speak with client | 41 | Inherent | 583 | |
| 16 | October 8, 2015 | 361 | Crown ready to set trial date; matter adjourned for counsel to meet with client and receive instructions re potential resolution | 3 | inherent | 586 | |
| 17 | November 10, 2015 | 361 | Crown and defence ready to set trial; counsel’s wife went into labour and counsel had to leave before date could be set | 35 | inherent | 621 | |
| 18 | November 20, 2015 | 361 | Trial dates set for November 14, 2016 – 7 days judge alone; readiness date set to coincide with filing of anticipated Charter application | 10 | inherent | 631 | |
| 19 | October 14, 2016 | 361 | Readiness date; matter adjourned to trial date | 329 | institutional | 960 | |
| 20 | November 9, 2016 | 361 | Defence bring- forward and adjournment application; out-of-country witness, Kevin Egan, (accused’s roommate at time relevant to charges) could not be located by either police or defence; OIC was able to finally locate address for witness on or about November 8, 2016. Although witness was a ‘Crown’ witness, was not vital to Crown case, but was anticipated to be important to accused’s ability to make full answer and defence; 11(b) waived to anticipated completion of next trial date; defence narrowed issues and reduced trial estimate to get earliest possible trial dates | 26 | institutional | 986 | |
| 21 | April 6, 2017 | 361 | Defence bring-forward and adjournment application due to late Crown disclosure of updated expert report. 11(b) NOT waived. Kevin EGAN subpoenaed to April 10, 2017 trial date; Adjournment granted. June 5, 2017 offered, but counsel unavailable. June 26, 2017 booked for 4 days for trial. | 148 | 148 days waived by defence | 148 days waived by defence | 1134 |
| 22 | April 7, 2017 | 361 | Crown confirmed that June 26, 2017 is agreeable date for trial | 1 | Crown | 1135 | |
| 23 | April 10, 2017 | 361 | Kevin EGAN attended and was bound over to June 26, 2017; matter adjourned to trial dates | 3 | Crown | 1138 | |
| June 29, 2017 | 361 | Anticipated last day of trial | 80 | Crown | 1218 |
CITATION: R. v. Lee, 2017 ONSC 4862 COURT FILE NO.: CR/15/10000/4080000 DATE: 2017-07-18
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Respondent
- and -
Shane Lee Applicant
RULING ON A SECTION 11(B) APPLICATION
M. Forestell J.
Released: July 18, 2017
[^1]: There is a mathematical error in the defence factum that calculated the overall delay at 40 months. Counsel agreed that the delay was in fact just over 39 months