COURT FILE NO.: CR-20-70000335-0000
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KYLE ROUSE and QUACEY DOS SANTOS
Co-Applicants
Elizabeth Moore, for the Crown
Trevin David, for Kyle Rouse
Ismar Horic, for Quacey Dos Santos
HEARD: October 1, 2020
CAVANAGH J.
REASONS FOR JUDGMENT
Introduction
[1] The Applicants are charged with firearms offences all stemming from alleged unlicensed possession of a loaded restricted firearm along with additional ammunition. Mr. Dos Santos is also charged with breaching a probation order and Mr. Rouse with several driving offences.
[2] The Applicants bring this application for a stay of the proceedings against them on the ground that their right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed. The Applicants rely on the framework established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 which set a presumptive ceiling on the time it should take to bring an accused person to trial. For cases going to trial in the Superior Court of Justice, the presumptive ceiling is 30 months.
[3] The period of total delay from the date of the charge against each of the Applicants to the anticipated end of trial exceeds the 30 month presumptive ceiling. The Crown contends that there is defence delay attributable to each Applicant and, when this delay is subtracted from the total delay, the remaining delay falls below the presumptive ceiling.
[4] For the following reasons, I conclude, for each Applicant, that the period of remaining delay after deduction of defence delay attributable to each Applicant falls below the presumptive ceiling of 30 months. The Applicants do not seek to show on this application that the delay is, nevertheless, unreasonable.
Factual Background and Procedural History
Factual Background
[5] On September 21, 2017, police began surveilling a 2012 Chevrolet Equinox, a rented vehicle, in connection with a homicide investigation. In the course of this surveillance, police observed the Applicants with two other passengers in the car. The homicide investigators believed the same renters from the date of the homicide were still in possession of the vehicle. The surveillance officers received orders from homicide investigator Det. Shannon Dawson to initiate a vehicle stop and arrest the occupants.
[6] When the officers attempted to stop the vehicle, Mr. Rouse, who was driving, evaded. He crashed the car into a pole a few blocks away. Mr. Rouse and Mr. Dos Santos ran from the vehicle down a residential street. The firearm and ammunition were concealed in a black satchel. The Applicants removed at the satchel from the vehicle and took it with them as they fled on foot. They dumped the satchel in a green bin and ran. Mr. Dos Santos was arrested at the scene along with two women who were also occupants in the vehicle. Mr. Rouse escaped. Mr. Rouse turned himself into authorities on October 24, 2017.
Procedural History
[7] The information against Mr. Dos Santos was sworn on September 22, 2017. He was released on a recognizance of bail on September 25, 2017 and had his first appearance in set date court on October 16, 2017. At that appearance, Mr. Dos Santos advise the Court that Royland Moriah was his counsel. Initial disclosure had not yet been completed, and the Crown advised that disclosure was expected to be available on October 30, 2017. The matter was remanded to November 6, 2017.
[8] Mr. Rouse was released on a recognizance of bail on October 31, 2017. Mr. Trevin David indicated he was retained as counsel for Mr. Rouse. His matter was adjourned to November 23, 2017 for his first appearance.
[9] The Crown’s office received initial disclosure for both Applicants, which included the majority of the involved officers’ notes. Mr. Moriah and Mr. David were notified on November 2, 2017 that the initial disclosure was available to be picked up.
[10] An agent for Mr. Moriah attended Mr. Dos Santos’ November 6, 2017 set date appearance. He advised that counsel was in the process of being retained and had not yet received disclosure. The Crown advised that a disclosure notification had been sent to counsel and that the disclosure was available to be picked up at the Crown’s office. The assigned Crown indicated that she was ready to conduct a Crown pretrial on the matter. The matter was adjourned for four weeks to December 4, 2017.
[11] On November 8, 2017, Mr. Rouse’s initial disclosure was picked up.
[12] On November 23, 2017, at an appearance for Mr. Rouse, an agent for Mr. David appeared. He advised that counsel is not yet retained but expected to be retained shortly. The agent requested a two week adjournment for counsel to review disclosure and “hopefully conduct a Crown pre-trial”. Mr. Rouse’s next appearance was set for December 7, 2017.
[13] On December 4, 2017 Mr. Dos Santos appeared in person. He had not yet retained counsel. Mr. Dos Santos’ matter was adjourned for two weeks for an update from counsel.
[14] On December 7, 2017, Mr. Rouse appeared in set date court. Duty counsel advised the court that counsel was Mr. David. Mr. Rouse conveyed through duty counsel that he had not spoken to Mr. David and does not know what is going on. The matter was adjourned to January 15, 2018 to be joined with Mr. Dos Santos. The Crown advised that she was ready to have a pretrial.
[15] On December 18, 2017, Mr. Dos Santos appeared in set date court. Duty counsel advised that Mr. Dos Santos was provided a referral to follow up on his legal aid application and that he would try to retain Mr. Moriah. Duty counsel advised that Mr. Moriah, who had suggested January 8, 2018 as a potential return date, agreed to January 15, 2018, the date set for Mr. Rouse to appear.
[16] On January 9, 2018, Mr. Dos Santos’ initial disclosure was picked up by an agent for counsel.
[17] On January 9, 2018, the assigned Crown emailed Mr. David and Mr. Moriah requesting to set dates for a Crown pretrial and a judicial pretrial.
[18] On January 15, 2018 the Crown informed the Court that both Mr. Rouse and Mr. Dos Santos had advised that they have not retained counsel. Mr. Dos Santos advise the court that he was “working on it right now”, that he had started his legal aid application and just needs to provide some financial documentation. He said he would do that the same day. Mr. Rouse advised that he thought he had retained Mr. David and was going to call him and should be able to “figure it out”. The matter was adjourned for one week to January 22, 2018.
[19] On January 22, 2018, Mr. Dos Santos attended at court with an agent from Mr. Moriah’s office. The agent told the court that Mr. Moriah was able to have a judicial pretrial but preferred to wait for Mr. Rouse’s counsel to also be retained. The agent requested an adjournment to February 12, 2018. Mr. Rouse and the agent from Mr. Moriah’s office attended the legal aid and, once there, Mr. Rouse requested that his legal aid certificate be in Mr. David’s name. The agent then returned to court advising that Mr. David would be retained by the next appearance.
[20] On January 30, 2018, counsel for Mr. Rouse advised the Crown that he was formerly retained and ready to schedule a judicial pre-trial. A judicial pretrial was scheduled for February 28, 2018. On February 12, 2018, the court was advised that a judicial pretrial had been set for February 28, 2018 and the matter was adjourned to that date.
[21] A judicial pretrial conference was held on February 28, 2018. The matter was adjourned to March 8, 2018 for further discussions with the Crown and the Court was advised that it was expected that the parties would likely be setting dates for a preliminary hearing.
[22] During the week following the judicial pretrial conference, discussions continued between the Crown and defence counsel with the intention to work out an agreed statement of facts that would considerably shorten the preliminary hearing. A proposed agreed statement of facts was provided by the Crown to defence counsel late in the afternoon on March 7, 2018.
[23] On March 8, 2018, counsel for Mr. Rouse requested an additional two weeks to review a proposed agreed statement of facts that the Crown had provided the day before. Neither defence counsel was prepared to set dates for a preliminary hearing that day. Counsel for Mr. Rouse provided a section 11 (b) waiver and indicated that he need to review some other disclosure that was already provided to Mr. Rouse. Mr. Moriah indicated that he was content with a two week adjournment. The matter was adjourned to March 22, 2018.
[24] On March 22, 2018 the preliminary hearing was scheduled to begin on February 25, 2019. Two earlier dates were offered, but Mr. Rouse’s counsel was unavailable for one of the offered dates and Mr. Dos Santos’ counsel was unavailable for the other offered dates. The first offered date was January 7, 2019 (when counsel for Mr. Rouse was unavailable). The second offered date was February 4, 2019 (when counsel for Mr. Dos Santos was unavailable).
[25] On April 17 and 18, 2018, counsel for Mr. Rouse submitted a disclosure request to the Crown. He sought disclosure of the homicide investigation that led police to the arrest of the occupants of the Equinox. He also requested the memo-book notes of Detective Dawson, who ordered the takedown and arrest of the occupants. The witness list on the statement of issues submitted by Mr. David dated April 17, 2018 included Detective Dawson.
[26] The assigned Crown responded to these requests on April 24 and 25, 2018. The Crown indicated that those items would not be provided. The Crown took the position that those items were not relevant to the defences and were covered by investigative privilege.
[27] On February 28, 2019, the Crown finished calling evidence at the preliminary hearing. Defence counsel asked for a recess and raised the issue of disclosure and examining Det. Dawson as a witness. The matter was adjourned to allow counsel to attempt to find a compromise and avoid the need to litigate the issue.
[28] From March 11, 2019 to May 16, 2019 the parties engaged in a process involving provision of a will-say statement from Det. Dawson, allowing defence counsel to ask questions, providing amended will-say statements. On May 16, 2019, defence counsel advised that they wished to call evidence at the preliminary hearing. The matter was adjourned to May 30, 2019 to litigate the issue of whether counsel should be able to call evidence at the preliminary hearing.
[29] On May 30, 2019, the preliminary hearing judge, because of an assignment to bail court, was unavailable to hear the motion. Given the delay that would ensue in getting other dates, the Crown agreed to make the witnesses available for discovery in the future. It was agreed that the majority of the counts against the Applicants be committed to the Superior Court of Justice so that the intake process could begin, with one count remaining in the Ontario Court of Justice to allow for discovery to take place.
[30] The Applicants’ first appearance in the Superior Court of Justice was on June 13, 2019. On that date, a judicial pre-trial was scheduled for July 15, 2019. On the day of the judicial pre-trial conference, defence counsel requested a two week adjournment. On July 30, 2019, the trial was scheduled for the first day offered, for two weeks beginning October 19, 2020. The trial is scheduled to conclude on October 30, 2020.
Analytical Framework
[31] In Jordan, the Supreme Court of Canada established a framework to determine whether a criminal proceeding should be stayed because of infringement of the rights of the accused under s. 11(b) of the Charter which guarantees the right of accused persons to be tried within a reasonable period of time.
[32] The Jordan framework is based on ceilings beyond which delay is presumptively unreasonable. For cases in the Superior Court of Justice, the presumptive ceiling is 30 months.
[33] The first step of the Jordan analysis is to calculate the total delay from the charge to the actual or anticipated end of trial. Next, defence delay must be subtracted from the total delay. Defence delay has two components: delay arising from defence waiver and delay caused solely by the conduct of the defence. If, after subtracting defence delay, the remaining delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances (Jordan, at para. 68).
[34] The only issue on this application is whether there was defence delay which should be subtracted from the period of total delay to bring the remaining delay below the presumptive ceiling. If so, the Applicants do not assert that the delay is unreasonable. If the delay, after subtracting defence delay, exceeds the presumptive ceiling, the Crown does not rely upon the presence of exceptional circumstances to rebut the presumption of unreasonable delay.
Analysis
[35] The Crown contends that there are three discrete categories of defence delay in this case. I will address each in turn.
Was there defence delay between November 6, 2017 and January 30, 2018 (85 days) (during which no pre-trial conferences were scheduled)?
[36] The Crown submits that key disclosure was made available to the defence on November 2, 2017 and that the Crown was ready to schedule pre-trial conferences by November 6, 2017. The Crown contends that the Applicants did not take significant steps until January 30, 2018 by which time counsel for both Applicants had been retained and a date was set for a judicial pre-trial conference. The Crown contends that there were 85 days of defence delay in this period.
[37] In Jordan, the Supreme Court of Canada noted that the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not, and the period of delay resulting from that unavailability will be attributed to the defence. Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. The defence must be allowed preparation time, even where the court and the Crown are ready to proceed. (Jordan, at paras. 64-65)
[38] The timeline for each Applicant differs somewhat. I first address the defence delay asserted by the Crown for Mr. Dos Santos.
Alleged defence delay for Mr. Dos Santos
[39] On November 6, 2017 an agent appeared for Mr. Moriah and advised that Mr. Moriah was in the process of being retained and that he had not yet received disclosure. The Crown was ready to schedule a Crown pre-trial and move the matter forward. The agent who appeared for Mr. Dos Santos advised the court that Mr. Moriah was agreeable to a four week adjournment. The matter was adjourned to December 4, 2017.
[40] On December 4, 2017, Mr. Dos Santos appeared in person with no message from counsel. His matter was adjourned to December 18, 2017. On that day, Mr. Dos Santos appeared, and duty counsel advised that he was provided a referral to follow up on his legal aid application and get Mr. Moriah’s retainer completed. Mr. Moriah sent a message suggesting that the matter be adjourned to January 8, 2018, but he advised the court that Mr. Dos Santos was agreeable to an adjournment to January 15, 2018, the date that was set for Mr. Rouse to next appear. On January 15, 2018, Crown counsel advised the court that she had reached out to Mr. David for Mr. Rouse and Mr. Moriah for Mr. Dos Santos and asked whether they were in a position to have a Crown pre-trial and move the matters forward. Both of them advised her at that point that they are not retained. Mr. Dos Santos advised the court that he was working on retaining counsel. Duty counsel advised that Mr. Dos Santos had started his legal aid application and needs to provide some financial documentation. Mr. Dos Santos advised the court that he would do so that day. Both matters were adjourned to January 22, 2018.
[41] Mr. Dos Santos did not pick up the disclosure until January 9, 2018.
[42] On January 22, 2018, an agent for Mr. David’s office appeared for both Mr. Dos Santos and Mr. Rouse. He advised the Court that Mr. Dos Santos’ counsel, Mr. Moriah, is ready to set a judicial pre-trial conference, however, he would like Mr. Rouse to have counsel, and he suggested an adjournment to January 26, and then changed this request to one for an adjournment to February 12, to allow sufficient time for Mr. Rouse to retain counsel. The matter was adjourned to February 12, 2018.
[43] On January 30, 2018, a judicial pre-trial conference was scheduled.
[44] Mr. Dos Santos submits that the period between November 6, 2017 and January 30, 2018 should not be treated as a period of defence delay for two reasons. First, disclosure was made available on November 2, 2017 (consisting of some 400 pages of documents) and Mr. Dos Santos was entitled to a reasonable period of time to review the disclosure before setting dates for a Crown pre-trial conference or a judicial pre-trial conference. Second, Mr. Dos Santos was applying to Legal Aid Ontario for appointment of counsel, and time spent waiting for legal aid to process a bona fide application does not constitute defence delay.
[45] The Crown was ready to move forward and set dates for pre-trial conferences during the period from November 6, 2017 to the date the judicial pre-trial conference was scheduled on January 30, 2018. In this case, counsel for Mr. Dos Santos did not pick up disclosure until January 9, 2018 and, for this reason, no review of Crown disclosure was done before this date. Once disclosure was ready to be picked up, dates for pre-trial conferences could have been arranged to move the matter forward before review of Crown disclosure had been completed. The matter did not move forward because Mr. Dos Santos was not ready to move forward. It appears that the delays were related to the fact that Mr. Dos Santos had not retained counsel.
[46] Mr. Dos Santos also contends that the period from November 6, 2017 to January 30, 2018 does not qualify as a period of defence delay because he was in the process of applying for legal aid and the time waiting for legal aid to process his application is not defence delay. He submits that there is no evidence of “foot dragging” on his part.
[47] Both Applicants cite R. v. Isaacs, 2016 ONSC 6214 in support of their submission that time spent waiting for legal aid to determine if a person will receive a legal aid certificate does not constitute defence delay. In Isaacs, the application judge on a s.11(b) application, citing the decision of the Court of Appeal in R. v. Boateng, 2015 ONCA 857, noted that the Crown bears the responsibility of bringing an accused to trial within a reasonable time and if an institutional participant, like Legal Aid Ontario, drags its feet and places the rights protected under section 11(b) in jeopardy and the Crown fails to react to these delays, it will bear responsibility for them in the section 11(b) calculus. The application judge in Isaacs held that a delay in processing a legal aid application is different that a delay by an accused in bringing the application.
[48] The evidentiary record in this case does not disclose exactly when Mr. Dos Santos (or Mr. Rouse) applied to Legal Aid Ontario for a legal aid certificate. There is no evidence that Legal Aid Ontario delayed the processing the Applicants’ applications for legal aid certificates or engaged in “foot-dragging” with respect to these applications, or that there was any other institutional delay associated with these applications.
[49] I am satisfied that the Crown and the Court were ready to set dates for pre-trial conferences for Mr. Dos Santos’ matter on November 6, 2017, 2017. Mr. Dos Santos was not ready to do so, and this failure was not shown to be due to “foot dragging” or other institutional delay by Legal Aid Ontario. Under the Jordan framework, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not, and the period of delay resulting from that unavailability will be attributed to the defence.
[50] The period from November 6, 2017 to January 30, 2018 (85 days) is a period of defence delay attributable to Mr. Dos Santos.
Alleged defence delay for Mr. Rouse
[51] Mr. Rouse turned himself in on October 24, 2017. He was released on bail on October 31, 2017. The initial disclosure for Mr. Rouse was picked up on November 8, 2017.
[52] At an appearance on November 23, 2017, an agent for Mr. David attended and asked for a two week adjournment for counsel to review disclosure, perfect the retainer of counsel, and schedule a Crown pre-trial conference. By this time, two weeks had passed since the initial disclosure was picked up. The matter was adjourned to December 7, 2017.
[53] On December 7, 2017, Mr. Rouse appeared in court and conveyed through duty counsel that he had not spoken with Mr. David and he did not know what was going on. The matter was adjourned to January 15, 2018. As I noted in my review of the alleged delay during this period in respect of Mr. Dos Santos, there is no evidence of foot dragging by Legal Aid Ontario or other institutional delay that interfered with the processing of Mr. Rouse’s legal aid application.
[54] Mr. Rouse submits that there should be no defence delay attributable to him for the period from November 23, 2017 to January 15, 2018 because this period should be treated as part of the intake period in the Ontario Court of Justice when defence counsel were making retainer arrangements and receiving and reviewing Crown disclosure. Mr. Rouse accepts that delay from January 15, 2018 to January 30, 2018 when he was still dealing with his legal aid application is defence delay attributable to him.
[55] In support of this submission with respect to the usual intake period, Mr. Rouse cites the decision of Nordheimer J., as he then was, in R. v. Osei, [2007] O.J. No. 768, at para. 18, in which he commented, citing R. v. Chrostowski, 2006 ON SC 10211, [2006] O.J. No. 1306 (S.C.J.), at para. 39, that the usual period of intake in the Ontario Court of Justice is two to three months.
[56] In Jordan, decided after the cases cited, the Court observed, at para. 111, that the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting and, while judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting with a global assessment. On a s. 11(b) application post-Jordan, judges are required to determine defence delay in accordance with the framework established in Jordan, and not simply based on the usual intake period.
[57] I also observe that the intake period in the Ontario Court of Justice did not begin in November 2017. It began in September 2017 for Mr. Dos Santos, and in October 2017 for Mr. Rouse.
[58] The Crown was ready to set dates for pre-trial conferences to move the matter forward on November 23, 2017. Mr. Rouse was not ready to do so. Under the Jordan framework, this period of delay from November 23, 2017 to January 30, 2018 (68 days) is attributable to Mr. Rouse.
Was there defence delay from March 8, 2018 to March 22, 2018 (14 days) (when no dates for a preliminary hearing were set and the matter was adjourned), and from January 7, 2019 to February 25, 2019 (49 days) (when counsel for the Applicants were not both available for the preliminary hearing)
[59] The second category of delay which the Crown contends is defence delay comprises two separate periods of time. The first period is from March 8, 2018 to March 22, 2018 (14 days) when the matters were adjourned and no dates for a preliminary hearing were set. The second period is from January 7, 2019 to February 25, 2019 (49 days) when dates were offered for a preliminary hearing, but it was not scheduled because one or the other of defence counsel was unavailable for some dates in this period of time.
[60] The judicial pre-trial conference was held on February 28, 2018 during which it was agreed that there would be continuing discussions between the parties about facilitating a shorter and more efficient preliminary hearing.
[61] On March 7, 2018, late in the afternoon, defence counsel received a proposed agreed statement of facts from Crown counsel. On March 8, 2018, the matter was addressed before the judicial pre-trial judge. Crown counsel advised the court that both counsel needed to consult with their clients and receive instructions on whether they could approve the agreed statement of facts. Mr. Rouse’s counsel advised the court that Mr. Rouse was prepared to waive s. 11(b) for the two week period of delay. Mr. Dos Santos did not give an express waiver.
[62] Given that the proposed agreed statement of facts was only received on March 7, 2018, I regard the two week period from March 8, 2018 to March 22, 2018 to be a reasonable period of time for Mr. Dos Santos to review the proposed statement. This period of time qualifies as a period during which actions were legitimately taken by Mr. Dos Santos to respond to the charges. This fourteen day period of time does not qualify as a period of defence delay for Mr. Dos Santos.
[63] This fourteen day period is a period of delay which was expressly waived by Mr. Rouse and is defence delay attributable to him.
[64] On March 22, 2018, counsel appeared and dates for the preliminary hearing were set to begin on February 25, 2019. Two earlier dates were offered. The first available date was January 7, 2019, but counsel for Mr. Rouse was not available. The second available date was February 4, 2019, but counsel for Mr. Dos Santos was not available. The Crown was available for both dates.
[65] The Crown submits that a communal approach should be taken to the times when counsel for the Applicants were not both available for the preliminary hearing, and that the period from January 7, 2019 to February 25, 2019 should be treated as a period of defence delay for both Applicants. The Applicants, relying on R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963, submit that only the period of time when counsel for each Applicant was not available should be treated as defence delay for that Applicant.
[66] In Gopie, the Court of Appeal, at paras. 128-136, held that an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. In reaching this conclusion, the Court of Appeal considered language from Jordan and language from R. v. Cody, 2017 SCC 31, at para. 30, in which “the Court emphasized that the only deductible defence-caused delay is that which ‘is solely or directly caused by the accused person and flows from defence action that is illegitimate in so much as it is not taken to respond to the charges’ ”. Gillese J.A., writing for the Court in Gopie, held at paras. 136 and 142:
[136] In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework.
[142] In conclusion on this point, while under the Jordan framework the category of “neutral” time no longer exists, in my view, the principles in L.G. still apply. As I discuss more fully below, provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly-charged accused are considered under the exceptional circumstances analysis in Jordan.
[67] In R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892, the Court of Appeal again addressed the question of how delay is to be assessed in a joint trial. Roberts J.A. noted, at para. 36, that the individualized approach in Gopie avoids “attributing to an accused the delay caused by the actions or inactions of a co-accused [which] is inconsistent with the approach and language of Jordan”. Roberts J.A., writing for the Court, held, at para. 37:
In my view, however, the individualized approach in Gopie does not apply because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents’ joint situation.
[68] In R. v. Pauls, 2020 ONCA 220, [2020] O.J. No. 1186, the Court of Appeal again addressed how delays arising from the unavailability of a co-accused’s counsel in a joint prosecution should be treated in the Jordan analysis. In Pauls, the application judge who conducted the Jordan analysis had deducted certain periods from the overall delay for Pauls because of the unavailability of his counsel. He declined to deduct any portion of this delay from the overall delay in relation to other co-accused because their counsel had available dates during the relevant periods. In Pauls, the Crown argued that the application judge erred and where proceeding against multiple accused is reasonable and severance is not in the interests of justice, the Crown cannot be expected to foresee or mitigate delay caused by the unavailability of co-accused’s counsel.
[69] Simmons J.A., writing for the Court in Pauls, addressed the individualized approach in Gopie and described circumstances in which a communal approach to defence delay is more appropriate:
I agree that the Gopie individualized approach is consistent with the general principles set out in Jordan concerning defence delay. Apart from waiver, Jordan speaks of defence delay as delay caused solely or directly by the conduct of the defence: Jordan, at paras. 61-66. Further, although Jordan initially involved ten accused, co-accused delay did not factor into the calculation of the net delay in that case. However, while it did not apply the principle in that case, at para. 77 of Jordan the Supreme Court indicated that, where it is in the interests of justice to do so, proceeding jointly against multiple accused can affect the complexity of the case.
Nonetheless, in Albinowski, this court held there may be circumstances where a communal approach to defence delay is more appropriate. These include multiple-accused cases where several counsel are unavailable for different parts of a particular delay period. For example, that was the situation in this case where all counsel, including the Crown, were unavailable for some parts of the period between January 14, 2016 and June 20, 2016. The trial judge allocated three months of the five month seven day delay jointly to the defence and the remaining delay to the Crown. Although the Crown challenges the amount of delay allocated to it, no party has challenged the propriety of that approach. Where appropriate, this form of communal allocation may avoid microscopic assessments of delay periods, a practice of which the Supreme Court disapproved in Jordan: at paragraphs 37, 111.
[70] In this case, there is no suggestion that joint proceedings against Mr. Dos Santos and Mr. Rouse are not justified. The defence presented a joint front, as it did in Albinowski. For example, on this application, counsel for Mr. Dos Santos relied upon the submissions made by counsel for Mr. Rouse. I accept that in this case, where the defence proceeded through the system together, the delay caused by scheduling challenges must be analyzed communally. This approach is supported by both Albinowski, at para. 38, and Pauls, at para. 53.
[71] The periods of delay in scheduling the preliminary hearing from January 7, 2019 to February 4, 2019 (28 days) and from February 5 to February 25, 2019 (21 days) constitute communal defence delay that is attributable to each Applicant.
Did the defence delay committal to stand trial by following up on a denied disclosure request only at the end of the preliminary hearing? Does this delay constitute defence delay under the Jordan framework?
Factual background in relation to disclosure issue
[72] The Crown submits that the Applicants waited until the very end of the preliminary hearing to follow up on a denied disclosure request and, by so doing, delayed the matter by roughly three months. The denied disclosure request related to information from Det. Dawson who was overseeing the homicide investigation which involved the rented Chevrolet Equinox in which Mr. Rouse and Mr. Dos Santos were driving when police attempted to stop the vehicle and arrest the occupants.
[73] On April 18, 2018, counsel for Mr. Rouse sent a disclosure request to the Crown’s office. Along with several other items, counsel requested “memo-book notes relating to any earlier surveillance or investigation done on the Chevrolet Equinox” and the memo-book notes of Det. Dawson, the investigating officer on the homicide. Counsel for Mr. Rouse included Det. Dawson on the witness list on his statement of issues for the preliminary hearing, also dated April 18, 2018.
[74] The assigned Crown responded to these requests on April 24 and 25, 2018. The Crown indicated that those items would not be provided. The Crown took the position that those items were not relevant to the offences and were covered by investigative privilege.
[75] The preliminary hearing began, as scheduled, on February 25, 2019. The Crown finished calling evidence on the morning of February 28 and was ready to make submissions on committal. At that point, counsel for Mr. Rouse asked for a break to speak to the Crown. When Court resumed, the Crown advised that, during the break, the Applicants’ counsel had requested to discover Det. Dawson and the disclosure of her notes. The Crown explained that its position was that Det. Dawson’s work on the matter was covered by investigative privilege. Counsel for Mr. Dos Santos indicated to the court that he did not want to formally commit the accused to stand trial at this stage. The Crown advised that it would consider its position and, on the next appearance, set a date either to litigate the privilege issue or for Det. Dawson to testify. Counsel for Mr. Rouse reiterated that the expectation was that a further date would be needed either to litigate the privilege issue or hear evidence from Det. Dawson.
[76] The assigned Crown and local Deputy Crown Attorney reached out to Det. Dawson to request a copy of her notes and discuss any privilege issues. A meeting was set up to discuss the homicide investigation and consider how to provide disclosure to defence counsel without engaging in the issues of privilege or jeopardizing the homicide investigation.
[77] After a meeting among counsel to discuss the matter, all parties appeared before the preliminary hearing judge on March 12, 2019. The Crown advised that the parties were working on a cooperative solution and hoped that an agreement could be reached as to how to proceed. The goal was to have counsels’ questions satisfied by Det. Dawson providing a will-say statement on her investigation of the Chevrolet Equinox, thus avoiding the need to litigate the privilege issue or call further evidence on the completed preliminary hearing. The matter was adjourned to March 28, 2018 for another update.
[78] The Crown received Det. Dawson’s will-say and sent it to defence counsel on March 28, 2018. The Crown asked that any questions be put in writing as soon as possible so that they could be forwarded to Det. Dawson. In the email to counsel, the Crown raised the issue of delay and noted that “if we are going to [Superior Court] on this, it should be sent up sooner rather than later to get the ... process started”.
[79] The Crown followed up with the Applicants’ counsel on April 23, 2019, asking for an update both as to whether there were any questions arising from the will-say and whether counsel had instructions to schedule a resolution-focused judicial pretrial with the preliminary hearing judge. Counsel for Mr. Dos Santos responded and asked a number of questions in relation to the will-say. The Crown provided a supplementary will-say from Det. Dawson with the answers to the questions asked on May 10, 2020. Counsel for Mr. Dos Santos responded on May 13, 2020 indicating that he wanted to call several witnesses, including Det. Dawson. Counsel also advised the Crown that they had further questions for Det. Dawson in response to her supplementary will-say. On May 14, 2019, the Crown advised the Court of the request for further information and the parties asked for a two-day adjournment to make a final call on how to proceed. The Crown sent defence counsel a further amended will-say on May 15, 2019 and expressed the view that the matter needed to be moved along.
[80] On the next appearance on May 16, the Crown advised the Court that attempts to come to a compromise and avoid the Applicants’ request to call evidence at the preliminary hearing had failed. The Crown indicated that its position was that both accused should be committed to stand trial in Superior Court and noted that committal had been conceded on all but one count on the information on February 28, 2019. The Crown did not intend to proceed on that count. Counsel for Mr. Rouse acknowledged that the will-say statements from Detective Dawson were provided in an effort to avoid calling further evidence or litigate the privilege issue. He advised the Court that his position was that the preliminary hearing was not complete, and that defence counsel were “not litigating delay at this point”. Counsel for Mr. Dos Santos indicated that he was seeking to call evidence on the preliminary hearing for a discovery purpose and that a date needed to be set to litigate whether defence would be permitted to call evidence. Counsel agreed that the argument would take an hour or so and set a date for May 30, 2019 to do so.
[81] On May 30, 2019, the preliminary hearing judge was unexpectedly switched into bail court for the day. There was no chance for the court to accommodate an hour of argument. The future dates offered to counsel were in June and September 2019. In order to avoid further delay, it was agreed that the bulk of the counts against the Applicants be committed to the Superior Courts so that the intact process could begin, with one count remaining in the Ontario Court of Justice to allow for discovery to take place.
[82] The Applicants first appearance at the Superior Court of Justice was on June 13, 2019. On that date, a judicial pre-trial conference was scheduled for July 15, 2019.
[83] The Crown was ready to set a trial date on the day of the judicial pre-trial. Defence counsel, however, needed instructions and requested a two week adjournment to conduct another judicial pretrial. That pretrial was held on July 30, 2019. A trial was set on that day for the first day offered by the Court, for two weeks beginning October 19, 2020. The trial is scheduled to conclude by October 30, 2020.
Delay caused by defence conduct or inaction
[84] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the Supreme Court of Canada addressed delay caused by defence conduct under the Jordan framework and confirmed, at para. 28, that delay that is caused solely by the conduct of the defence is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (citing Jordan, at para. 113). The Court in Cody held that it applies to any situation where the defence conduct has “solely or directly” caused the delay (citing Jordan, at para. 66) and held, at paras. 30-32:
30 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. ...
31 The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.
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 section 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
[85] The Crown submits that in this case the failure by defence counsel to pursue the disclosure relating to Det. Dawson from April 24, 2018, when the disclosure request was denied, to the last scheduled day of the preliminary hearing on February 28, 2019, was inaction by defence counsel which exhibited a marked indifference toward delay and, as such, this choice was not legitimate in the context of this s. 11(b) application. In support of this submission, the Crown relies on Cody, as well as the obligations of the defence in relation to disclosure as set out in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 and in R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244.
[86] In Stinchcombe, the Supreme Court of held that the Crown has an obligation provide disclosure, one which is not absolute and is subject to the discretion of counsel for the Crown, both with respect to the withholding of information and the timing of the disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege and, although the Crown must err on the side on inclusion, it need not produce information which is irrelevant. The Crown’s exercise of discretion is reviewable by the trial judge and, where defence counsel initiates a review of an issue relating to Crown disclosure, the Crown must justify its refusal to disclose. Defence counsel is required to raise any failure of the Crown to comply with its duty to disclose “at the earliest opportunity”. See Stinchcombe, at paras. 20, 24.
[87] In Dixon, the Court, after referring to the Crown’s disclosure obligation as set out in Stinchcombe, held, at para. 37:
The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.
[88] Here, after the Crown denied the disclosure request for Det. Dawson’s notes and information relating to the underlying homicide investigation, the Applicants took no steps to seek an order compelling the disclosure. They proceeded with the preliminary hearing that was scheduled. After the Crown had finished calling its evidence, defence counsel were in a position to concede committal on all but one count. It would have been apparent to defence counsel that their decision to request that they be allowed to discover Det. Dawson and seek disclosure of her notes without agreeing to committal would surely result in delay. This is what happened. The Crown tried to reach a cooperative solution with defence counsel which resulted in a delay of about three months.
[89] In Cody, the Court held that to determine defence delay, the decision to take a step, and the manner in which it is conducted, including the timeliness of the step, may be scrutinized.
[90] If defence counsel decided that they needed disclosure of Det. Dawson’s notes and other information relating to the underlying homicide investigation for the purpose of the preliminary hearing, there was ample time to take steps to do so in the ten months preceding the commencement of the preliminary hearing. If they decided not to do so, defence counsel could, as they did, renew their request for disclosure relating to the homicide investigation and Det. Dawson’s notes at the close of the Crown’s evidence at the preliminary hearing. They could insist on not committing the Applicants to stand trial in the Superior Court of Justice until their request was satisfied by a cooperative solution or a decision on a contested application. However, the fact that the position of the defence may have had merit does not mean that it must be treated as legitimate in the context of a s. 11(b) application (Cody, at para. 32). Given the timing of the position taken by the defence on the last day scheduled for the preliminary hearing, the delay that resulted from taking this position could not have been anticipated by the Crown. The Crown was placed in a position where it was helpless to avoid this delay.
[91] In response to the position taken by defence counsel, the Crown acted to try to mitigate the delay. Nevertheless, three months passed before the parties worked out a compromise that allowed the matter to move to the Superior Court of Justice so that dates for a judicial pre-trial and for trial could be set. In these circumstances, I am satisfied that this three month delay is from an action taken by the defence that exhibited a marked indifference toward this delay and, as such, is not legitimate in the context of this s. 11(b) application.
[92] The period of 91 days that passed from February 28, 2019 to May 30, 2019 is defence delay attributable to each of the Applicants.
Calculation of remaining delay after deduction of defence delay
[93] Under the Jordan framework, defence delay must be subtracted from total delay to determine the remaining delay.
[94] For Mr. Dos Santos, the total delay is 1,134 days, or 37 months and 8 days, from September 22, 2017 when he was charged to the anticipated end of his trial, October 30, 2020. From this period of total delay, defence delay attributable to Mr. Dos Santos must be deducted. This comprises the periods:
a. From November 6, 2017 to January 30, 2018 (85 days);
b. From January 7, 2019 to February 25, 2019 (49 days); and
c. From February 28, 2019 to May 30, 2019 (91 days).
[95] The remaining delay for Mr. Dos Santos is 909 days, or 29 months and 24 days.
[96] For Mr. Rouse, the total delay is from September 21, 2017, when he was arrested, to October 30, 2019, the scheduled end of the trial, a period of 1,102 days, or 36 months and 6 days. From this period of total delay, defence delay attributable to Mr. Rouse must be deducted. This comprises the periods:
a. From November 23, 2017 to January 30, 2018 (68 days);
b. From March 8, 2018 to March 22, 2018 (14 days);
c. From January 7, 2019 to February 25, 2019 (49 days); and
d. From February 28, 2019 to May 30, 2019 (91 days).
[97] The remaining delay for Mr. Rouse is 880 days, or 28 months and 26 days.
Conclusion
[98] Under the Jordan framework the remaining delay, after subtraction of defence delay, that falls below the 30 month ceiling is not presumptively unreasonable. Where the delay is not presumptively unreasonable, the defence has the onus of showing that the delay is, nevertheless, unreasonable (Jordan, at para. 82). The Applicants do not seek to discharge this onus on this application.
Disposition
[99] For these reasons, the Applicants’ application is dismissed.
Cavanagh J.
Released: October 9, 2020
COURT FILE NOS.: CR-20-70000335-0000
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KYLE ROUSE and QUACEY DOS SANTOS
Co-Applicants
REASONS FOR JUDGMENT
Cavanagh J.
Released: October 9, 2020