COURT FILE NO.: 197/18
DATE: 2020/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
(Southwest Region)
B E T W E E N:
Her Majesty the Queen
N. Kuehn for the Respondent
Respondent
- and -
Daniel Medeiros
B. Eberdt for the Appellant
Appellant
HEARD: December 11, 2019
MITCHELL J.:
REASONS FOR JUDGMENT ON APPEAL
Overview of the Appeal
[1] The appellant, Daniel Medeiros, was convicted of sexual interference and exposing his genitals to a person under the age of 16 in relation to the complainant. Prior to the commencement of his trial, the appellant applied for production of records of the complainant’s counsellor arguing that this counselling had a role in her providing further allegations which were not disclosed in her initial statement to police.
[2] The application was dismissed at first instance on a without prejudice basis. The trial judge permitted the appellant to renew his application at trial upon a proper evidentiary foundation being established through the complainant’s evidence at trial. After renewing his application mid-trial, the trial judge again dismissed the application.
[3] At the conclusion of trial, the appellant calculated the total delay between the date he was charged and the conclusion of his trial as exceeding the presumptive Jordan ceiling of 18 months and applied for a stay of proceedings arguing a breach of his s. 11(b) Charter rights. The trial judge dismissed the application.
[4] The appellant appeals both the decision of the trial judge dismissing his application for production of the complainant’s third-party records and the decision of the trial judge dismissing his application for a stay of proceedings pursuant to s. 11(b) of the Charter.
Issue #1: Did the Trial Judge err in dismissing the Application for a Stay of Proceedings pursuant to s. 11(b) of the Charter?
Evidence on the Application
[5] For purposes of calculating delay, the key dates are:
(i) the appellant was arrested on October 23, 2016;
(ii) the Information was sworn 23 days later, on November 15, 2016;
(iii) the original one-day trial was scheduled for September 1, 2017;
(iv) on July 7, 2017 the Crown notified defence counsel of its intention to proceed with a joinder application;
(v) the 1-day trial originally scheduled for September 1, 2017 was converted to a hearing date for the joinder application;
(vi) the joinder application was adjourned to October 6, 2017 on account of the assigned trial judge declaring a conflict of interest in late August 2017 (as a practicing lawyer she had formerly represented the accused some 12 years prior);
(vii) the trial was rescheduled for December 14, 2017;
(viii) on December 7, 2017 the Crown provided the defence with a further statement from the complainant which prompted the appellant to bring the third-party records application;
(ix) to accommodate the third-party records application hearing, the trial was adjourned to March 23, 2018; and
(x) following a 2-day trial, on May 2, 2018 the appellant was found guilty on two of three counts on the indictment.
Position of the Appellant
[6] The appellant submits that the application judge erred in reaching her decision to dismiss the section 11(b) application on four grounds:
(i) by finding the “11(b) clock” commenced at the time the Information was sworn and not at the time of arrest;
(ii) by finding that the delay occasioned by the adjournment of the trial date from September 1, 2017 to December 14, 2017 (104 days) was due to exceptional circumstances and should not be included in the calculation of the total delay;
(iii) by failing to consider the delay attributable to the Crown’s joinder application when calculating delay due to defence unavailability; and
(iv) in finding the case did not warrant a stay of proceedings despite falling under the presumptive Jordan ceiling
Position of the Respondent
[7] In response, the Crown submits:
(i) the commencement of the Jordan period is settled law and commences when the Information is sworn;
(ii) the delay occasioned by the conflict of interest declared by the trial judge was an exceptional circumstance as having been an unforeseen and unavoidable development;
(iii) the appellant’s position requires the court to speculate as to defence counsel’s availability without evidence; and
(iv) stays of cases below the Jordan ceiling are granted only in clear cases – this is not such a case.
Analysis
[8] The parties agree that the standard of review is one of “correctness” when considering the trial judge’s characterization of periods of delay as attributable to the Crown, to the defence or due to exceptional circumstances. “Correctness” is also the standard of review with respect to the ultimate decision as to whether there has been unreasonable delay.[^1] In effect, the role of this court sitting on appeal of the trial judge’s decision on the s. 11(b) application is to consider the issue of delay de novo.
(i) Commencement of the Jordan Period
[9] In R. v. Jordan,[^2] the Supreme Court of Canada established that the period of delay is calculated commencing on the date the accused is “charged”. The court did not expressly pronounce whether that date is the date of arrest or the date the information is sworn. However, prior to its decision in Jordan the Supreme Court had already decided that for purposes of s. 11(b) a person is “charged” on the date the Information is sworn. In R. v. Kalanj.[^3]it was held that for the purposes of s. 11(b), the “clock” starts running when the accused is charged – which is when the information is sworn.
[10] Following Kalanj and prior to Jordan, Moldaver J.A. (as he then was)[^4] writing for the Ontario Court of Appeal in R. v. Kporwodu[^5] cited Kalanj with approval, and wrote “the law on this subject was settled by the Supreme Court of Canada in R. v. Kalanj” and further that “for the purposes of s. 11(b)”, a person is “charged with an offence” within the meaning of the provision “when an information is sworn alleging an offence against him, or a direct indictment is laid against him when no information is sworn.”
[11] The appellant referred me to the recent decision Wright J. (as she was then known) in R. v. Gleiser.[^6] The court in Gleiser directly addressed this issue and found:
With respect to the delay between the charge and the swearing of the information, under the pre-Jordan jurisprudence it was well established that delay for s.11(b) purposes commenced from the date the information was sworn. Post-Jordan, the approach is less technical and the focus is on the big picture, adding some flexibility to an otherwise rigid approach. In cases of significant delay between the arrest and the swearing of the information, the date of the charge can be relied upon in calculating delay. In this case, more than three weeks elapsed between the date of charge and swearing, with no explanation. Accordingly, I find the trial judge’s approach in this case was not in error.[^7]
[12] The court in Gleiser uses the terms “charge” and “arrest” interchangeably which is not helpful. Without specifically identifying the authority, the court appears to acknowledge the well-settled law established in Kalanj pre-Jordan; however, finds it is not binding in a post-Jordan era.
[13] Gleiser involved similar facts to the facts before me on this appeal. As is the case here, in Gleiser there was more than a three-week delay between the accused’s arrest and the date the information was sworn. The Court in Gleiser found this to be a distinguishing feature justifying a departure from well-settled law and supporting a finding that the 11(b) clock begins to run from the date the Information is sworn. The appellant submits, that unless the reasoning in Gleiser is plainly wrong, the principle of comity militates in favour of it being followed.[^8]
[14] Of the post-Jordan cases of this court to address the issue, Gleiser is the outlier. Code J. found in R. v. Ghandi[^9] that, following Jordan, “there was no indication that the Court wished to alter the principle that s. 11(b) delay begins to run from the swearing of the Information”. Similarly, in R. v. Leonard, Leach J. held that the question of when the 11(b) “clock” begins to run is settled law, writing:
I see no justification whatsoever for adopting an approach that runs directly counter to the Supreme Court of Canada’s decision in R. v. Kalanj, supra, which seems expressly on point and which the Supreme Court of Canada itself has not chosen to revisit while implementing or restating the new Jordan framework or thereafter. For me to take such an approach simply is not the role of this court.[^10]
[15] Unless and until the Supreme Court revisits the issue, I am bound by the principles enunciated in Kalanj. I find that the trial judge correctly concluded that the Jordan period commences from the date the information is sworn and not from the date of arrest.
(ii) The Delay occasioned by Harris-Bentley J.’s Conflict of Interest was an Exceptional Circumstance
[16] The Crown and counsel for the appellant learned on August 25, 2017 that the scheduled trial judge was Justice Harris-Bentley. On August 31, 2017 the appellant advised his trial counsel that the scheduled judge had represented him on previous criminal matters. Trial counsel in turn advised Crown counsel of the conflict on this same date. The scheduled trial judge did not recall the appellant. However, it was discovered she had, in fact, represented the appellant more than a decade prior. Justice Harris-Bentley was replaced and the joinder application and trial dates were rescheduled. The trial date was adjourned from September 1 to December 14, 2017.
[17] In Jordan, the Supreme Court of Canada defined “exceptional circumstances” as:
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delay emanating from those circumstances once they arrive. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.[^11]
[18] In R. v. Cody[^12], the Supreme Court made it clear that “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.” The appellant submits that considering the September trial date had been scheduled five months earlier, the court’s administration should have immediately assigned a trial judge and that trial judge should have conducted a conflict search long before August 31, 2017. Having failed to do so, the Crown (and the court) are precluded from arguing the conflict of interest was unforeseeable or unavoidable.
[19] I disagree. In a perfect system of justice, the trial judge would be assigned at or shortly following trial scheduling. However, in practical reality this is rarely, if ever, the case. As was noted by Moldaver J. in R. v. KJM[^13] “when assessing whether a particular period of delay could reasonably have been mitigated by the Crown or the justice system, we must take into account certain ‘practical realities’ …”
[20] Due to a lack of judicial resources, the frequent resolution and rescheduling of criminal cases, the need for deployment of judicial resources to other centres in the region and the need for judicial resources in the areas of civil and family law, a trial judge cannot be assigned until shortly before the trial and or the pretrial application hearing date. The former clients of a trial judge over the span of their years as a practicing lawyer could conceivably number in the thousands. The enormity of the undertaking involved in generating the information needed to populate a database from which to conduct such a search is staggering. Simply stated, requiring court administration to conduct conflict searches for all matters where the assigned trial judge was a former Crown or defence lawyer is unworkable and cannot be, and is not, the standard.
[21] The Supreme Court in Jordan developed a simple, straightforward approach to the issue. If the event meets the stated two-prong test, the circumstances are exceptional. I find, as did the trial judge, that the conflict of interest resulting in the adjournment of the trial to December 14, 2017 (a 104-day period of delay) was neither foreseeable nor avoidable. There can be no suggestion here that the Crown could have remedied this delay.
[22] I therefore conclude that the delay occasioned by the conflict of interest arising with respect to the originally assigned trial judge was due to exceptional circumstances and does not factor into the calculation of the total delay.
(iii) Defence Delay Relating to Defence Availability
[23] The trial judge found there was a one month and twenty-four-day period of delay attributable to the defence comprised of two periods of time where the Court and the Crown were available and defence counsel was not. The first period related to trial scheduling following hearing of the joinder application on October 6, 2017. The Court and Crown were available on November 10, 2017, however, defence counsel was not available until December 14, 2017. The second period relates to scheduling a two-day trial in this case. Both counsel were available on March 23, 2018 for the first day of trial. However, defence counsel was not available on the second date offered of March 28, 2018 although the Crown was available. The first available date for the second day of trial on which both Crown and defence counsel were available was 20 days later on April 18, 2018.
[24] The appellant submits the trial judge’s finding that this period of delay is attributable to the defence is not correct and was made in error. The appellant argues this period of delay arose as a direct result of the Crown’s 4-month delay in advising of its intention to bring a joinder application. The appellant submits that had the Crown advised of its intention at the judicial pre-trial on March 16, 2017, the joinder application would have been scheduled when the original trial date was set thereby substantially reducing the total delay.
[25] In support of this position, the appellant argues his counsel’s calendar would have had more availability in March 2017 than in December 2017 thereby eliminating the time attributable to defence delay. No evidence of defence counsel’s availability in March 2017 was placed before the trial judge or this court.
[26] The appellant submits Jordan provides that defence delay is delay solely attributable to the defence (emphasis added). The appellant further submits that the Crown contributed to the delay and therefore the delay is not solely attributable to the appellant.
[27] I do not share the appellant’s interpretation of Jordan on this issue. In Jordan¸ Moldaver J. described defence delay as:
The defence will have directly caused the delay if the Court and the Crown are ready to proceed, but the Defence is not. The period of delay resulting from that unavailability will be attributed to Defence.[^14]
[28] The Court in Jordan was clear. The approach is straightforward and unambiguous. There is no need to unduly complicate the analysis by injecting a speculative element as the appellant proposes.
[29] The trial judge considered the availability of the Court, the Crown and defence and correctly attributed this delay to the defence in circumstances where the Court and the Crown were available and the defence was not.
(iv) A Stay of Proceedings not Warranted Despite Falling Under the Presumptive Jordan Ceiling
[30] In the alternative, the appellant argues that even if the total delay falls below the ceiling (as it does here), the case should be stayed. The trial judge rejected this position.
[31] For cases falling below the presumptive ceiling, the test for a stay is high. In Jordan the Court explained that stays beneath the ceiling will be granted only in clear cases. The onus is on the defence to satisfy a two-fold test: (i) that the defence has taken meaningful and sustained steps to expedite the proceeding, and (ii) that the time the case has taken markedly exceeds the reasonable time requirements of the case. Absent these two factors, the s. 11(b) application must fail. [^15]
[32] The court in Jordan expanded on the second-prong of the test as:
Where the Crown has done its part to ensure that the matter proceeds expeditiously – including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses – it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.[^16]
[33] The trial judge found that the appellant met the first prong of the test, namely, that the defendant took meaningful steps that demonstrated a sustained effort to expedite the proceedings. However, the trial judge found that the appellant did not meet the second prong of the test. Aside from the appellant’s broad conclusion to this effect, there was no evidence to support the position that the case had taken markedly longer than it reasonably should have given the features of the case. Without evidence, the appellant’s claim for a stay could not, and did not, succeed.
[34] Therefore, I find that the trial judge correctly concluded on the evidence before her:
However, at under 15 months, this case did not take markedly longer than it reasonably should have. Given the legitimate twists and turns in this case necessitated by the applications brought by both the Crown and the Defence, this case was concluded in reasonable time. I find both counsel did their best to ensure the matter proceeded as expeditiously as possible in all the circumstances.[^17]
[35] Deference is owed to the trial judge’s factual findings. She is intimately familiar with the “twists and turns” in the case. Absent a palpable and overriding error, the trial judge’s findings are to be respected and upheld. There is no such error present here.
[36] The appellant relies on numerous decisions of the Ontario Court of Justice.[^18] These decisions are not binding on this Court. However more importantly, each case turns on its own unique set of facts and history.[^19] A similar quantum of total delay falling under the presumptive ceiling in any particular case is of little persuasive value in assessing whether this case took markedly longer than it reasonably should have.
[37] I agree with the trial judge that this case is far from the clear case envisioned by the Supreme Court in Jordan. This ground of appeal therefore must fail.
Issue #2: Did the Trial Judge err in dismissing the Third-Party Records Application either Pretrial or at Trial?
Evidence on the Application
[38] On December 7, 2017, the complainant provided a new statement containing further details than had previously been provided to police. In her original statement provided on September 26, 2016, the complainant said that the first of the three incidents concluded on the couch in the basement. In her statement given on December 5, 2017, the complainant told the police that the first incident did not end on the couch in the basement as she had first reported.
[39] The complainant reported to police in December 2017:
I thought, like it just ended there and as I’ve been going to therapy and realizing like trying to remember more and more details, we actually went up to the bedroom.
[40] The appellants brought a third-party records application which was heard by the trial judge prior to the commencement of trial. On February 21, 2018 the trial judge delivered her ruling on the application.
[41] The trial judge found that the appellant had failed to establish that the complainant’s memories were as a result of counselling as opposed to simply emerging while undergoing counselling. In dismissing the application, the trial judge found that the application was premature and dismissed the application without prejudice to the appellant to renew the application again at trial on further evidence.
[42] The appellant renewed the application at trial after the complainant’s testimony. During cross-examination, the complainant testified that counselling was helpful in remembering the things that happened and that counselling played a role in remembering more details. In re-examination, the complainant said that she never discussed the specifics of the allegations in detail with her doctor.
[43] Again, the trial judge dismissed the application finding there was an absence of evidence to support a finding that counselling contributed to the complainant’s memory.
Position of the Appellant
[44] The appellant submits that it was an error to dismiss the third-party records application both pretrial and mid-trial. With respect to the appellant’s pretrial application, he submits that the trial judge erred in the application of the law to the facts.
[45] With respect to the appellant’s mid-trial application, the appellant submits that the trial judge failed to consider the lower evidentiary burden that applies, namely, that it was only necessary to demonstrate “likely relevance” of the complainant’s counselling records on a balance of probabilities.
[46] The appellant takes the position that the trial judge misapprehended the evidence when she concluded there was “no evidence” that the counselling contributed to the complainant’s new memories. The appellant submits that at a minimum the evidence clearly supported an order that the complainant produce these records for review by the court.
Position of the Respondent
[47] In response, the Crown submits that the decision of the trial judge not to order third-party records must be afforded considerable deference.
Analysis
[48] On a section 278 application, production of records is within the discretion of the court such that the trial judge’s exercise of discretion must be given deference unless the appellant demonstrates an error in law, an error in principle, or a material misapprehension of the evidence.[^20]
[49] The complainant’s counselling records are presumptively inadmissible. It has long been recognized that these types of records are created by a third party for purposes unrelated to any police investigation or prosecution. Moreover, there is a high expectation of privacy attached to records relating to the counselling of sexual abuse victims.[^21]
[50] Under s. 278 of the Code, the onus is on the accused to demonstrate: first, that the records have likely relevance to an issue at trial and second, that the production is necessary in the interests of justice. The threshold of “likely relevance” requires that there is a reasonable probability that the information is logically probative to an issue at trial. As was noted by the Supreme Court in R. v. Mills[^22] at para. 45:
… This shift in onus and the higher threshold, as compared to when records are in the possession of the Crown, was necessitated by the fact that the information in question is not part of the state’s “case to meet”, the state has not been given access to it, and third parties are under no obligation to assist the defence.
[51] As was noted by the Ontario Court of Appeal in R. v. M.L.[^23] the “likely relevance” test will be satisfied only if the accused is able to point to case-specific information that goes beyond merely establishing the complainant spoke to a counsellor or a physician about the alleged abuse. There must be some evidence to support the conclusion that the records have the potential to provide the accused with some added information not already available to the defence or have some potential impeachment value.
[52] I find that the appellant’s appeal of the trial judge’s decision to dismiss the pretrial application without prejudice was no longer open to challenge once the appellant renewed his application mid-trial based on the same evidence together with the further evidence of the complainant. The appellant’s first ground of appeal, therefore, must fail.
[53] Turning now to the decision of the trial judge to dismiss the mid-trial application. The trial judge gave detailed reasons. In those reasons, she carefully canvassed the evidence of the complainant and other circumstances of the case, she carefully considered the law and applied the relevant legal principles to the facts as she found them.
[54] On the application, the appellant relied heavily on the analysis and decision in R. v. P.B.[^24]. In P.B., this court ordered the production of the complainant’s counselling records. The appellant pointed to certain questions asked of and answers given by the complainant in P.B. which were strikingly similar to questions asked of and answers given by the complainant in this case. It is trite to say that the exercise of discretion under s. 278 requires a contextual analysis. No two cases are the same. Not surprisingly, the trial judge considered and ultimately distinguished the facts and issues in P.B. and arrived at a different conclusion.
[55] Following her analysis, the trial judge concluded that the evidence before her on the mid-trial application was insufficient to satisfy the s. 278 two-prong test for stage 1 production. Absent any misapprehension of the evidence or error in the application of the relevant legal principles (of which I find neither), I must give deference to the conclusions of the trial judge. The appellant takes issue with the exercise of discretion by the trial judge. However, I find there is no basis upon which to interfere with her exercise of discretion in dismissing the appellant’s mid-trial third-party records application and this ground of appeal must also fail.
Conclusion
[56] In the result, the appeal is dismissed.
“Justice A.K. Mitchell”
Justice A. K. Mitchell
Released: January 28, 2020
COURT FILE NO.: 197/18
DATE: 2020/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
Respondent
– and –
Daniel Medeiros
Appellant
REASONS FOR JUDGMENT
Mitchell J.
Released: January 28, 2020
[^1]: See R. v. Jurkus, 2018 ONCA 489 at para. 25. [^2]: 2016 SCC 27. [^3]: 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594. [^4]: It should be noted that Moldaver J. also jointly wrote for the majority in Jordan. [^5]: 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (C.A.) at para. 31. [^6]: 2017 ONSC 2858. [^7]: Supra, at para. 18. [^8]: See R. v. Hussein, 2017 ONSC 4202 at para. 28 citing with approval Strathy J. (as he then was) in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 (S.C.J.) at para. 43. [^9]: 2016 ONSC 5612 at para. 4. [^10]: 2019 ONSC 1493 at para. 174. [^11]: Supra, at para. 69. [^12]: 1 S.C.R. 659 at para 1. [^13]: 2019 SCC 55 at para. 102. [^14]: Jordan, supra, at para. 64. [^15]: Jordan, supra, at paras. 82-83. [^16]: Jordan, supra, at paras. 90. [^17]: S. 11(b) Ruling of Leroy J., Transcript of Proceedings (May 10, 2018) at page 15. [^18]: Defence counsel referred to R. v. Hill, 2016 ONCJ 623; R. v. Reynolds, 2016 ONCJ 606; and R. v. DeSouza, 2016 ONCJ 588. [^19]: For example, in R. v. Bole, supra, a stay was entered after having regard to the local considerations of the Scarborough courthouse. [^20]: R. v. J.L., 2019 ONCA 523 at para. 31; and see also R. v. M.L., 2014 ONCA 640 at para. 39. [^21]: R. v. R.C., 2002 CanLII 14471 (ON CA), [2002] O.J. No. 865 (C.A.) at paras. 49 and 52; and R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.J. No. 98 (S.C.C.) at paras. 7-8. [^22]: [1993] S.C.J. No. 68 (S.C.C.). [^23]: 2014 ONCA 640 at paras. 44 and 45. [^24]: 2015 ONSC 7220.