COURT FILE NO.: 304-19
DATE: 20201119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J. P.
Defendant/Applicant
Ms. C. Pennycook, for the Crown
Ms. C. Morrow, for the Defendant Defendant/Applicant
HEARD: November 3, 2020
Justice M. D. McArthur
Ruling on Section 11 (b) CHARTER APPLICATION
RESTRICTION ON PUBLICATION
By court order made under s. 486.5 of the Criminal Code, information
that may identify the names of victims, witnesses and justice participants, described in this judgment may not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
Introduction
[1] J.P. was arrested and charged on November 10, 2017 with three criminal offences: two counts of assault and one count of sexual assault with allegations within the period from October 1 to November 8, 2017. Soon after, Mr. P. was also charged with voyeurism. All counts involve the same complainant.
[2] Both the defendant and the complainant were known to each other and had been in a relationship since May 2016. The relationship deteriorated and they were in the process of breaking up. They had numerous electronic communications between each other throughout and up to November 8, 2017.
[3] The complainant contacted police on November 10, 2017 and provided a statement. Among other things, she said she accessed the defendant’s cell phone and found three videos in which she is featured with the defendant involved in sexual activity. She transferred these videos to her cell phone. These videos were viewed by the investigating officer.
[4] The police also obtained the complainant’s consent to search her cell phone. This cell phone’s data and contents were mirrored, an extraction report was produced and disclosed to defence.
[5] The police also obtained a search warrant for the defendant’s cell phone which had been seized in another case that has gone to trial where the complainant here was a witness. This cell phone’s data and contents were likewise mirrored and an extraction report was also produced and disclosed to the defence. The cell phone has, or is soon to be, returned to the defendant.
[6] The Covid-pandemic and suspension of the court operations intervened. The time period, from the date of charge to the end of what would have been the first scheduled trial, exceeds the presumptive ceiling of 30 months. The trial is now set to proceed before a judge and jury commencing March 30, 2021 for 6 days.
[7] The defendant has made an application under s. 11(b) of the Charter alleging that his rights to a trial within a reasonable time have been breached and requests a stay of the charges.
[8] This matter was the subject of an earlier leave application since the service and filing the application was not made in accordance with the rules of court and the directions of the trial management justice as to time periods nor were the required materials filed as required by the Practice Directions of the Superior Court.
[9] I granted leave by way of endorsement dated October 29, 2020 to permit the defence to proceed with a s. 11(b) application on this expressed basis:
a. That the factual issues were to be confined to the delay that is solely attributed to the defence where the total delay is 5 months and 22 days beyond the presumptive ceiling of 30 months.
b. The Crown and defence were to jointly complete and file an agreed statement of facts of those facts that can be agreed to. The defence was to provide a first draft to Crown on Friday, October 30, 2020 at 11:00 pm.
c. The defendant and Crown were to serve and file a joint record, excluding transcripts and any other affidavits dealing with other evidence as to disputed facts.
d. Affidavits of either party were to be served and filed in the times as outlined below limited to other facts in relation to the issue of defence delay that remain in dispute.
e. Each party shall serve and file a factum.
f. All documents were to be served on the other party and filed with the court on or before November 2, 2020 at 3:00 pm.
[10] Unfortunately, other than serving and filing of respective factums, the directions above, being a, b, c, d and f, were not met by the parties. When the deadlines were missed, the court made enquiries of one or both of the parties and, other than receiving the respective factums and other minor emails right up until the commencement of the hearing, the court was not made aware by either party before the actual hearing that the parties would not agree on the facts, would not be filing any agreed statement of facts, a joint record nor any other additional affidavits.
[11] This placed the court in a difficult position to assess the application based on various materials filed in the past, the transcripts, some additional filings and the submissions of both counsels. This application has also followed six days of other pretrial motions. I will comment further about this at the end of this decision.
[12] This case exceeds the presumptive ceiling of 30 months by 5 months and 24 days. This is not a complex case. The suspension of the courts due to the Covid-19 pandemic does not have any practical effect to bring the case below the presumptive ceiling of 30 months.
The Issue
[13] The central issues are what delays are solely attributable to the defence and whether such delays and other discreet events take this case below the presumptive ceiling of 30 months.
[14] If the delays solely caused by defence along with discreet events take the matter below the presumptive ceiling, the application would be dismissed. If the delays and discreet events do not take the matter below the presumptive ceiling, the application would be granted and the charges stayed.
Position of the Parties
Defence
[15] The defendant submits that it is solely responsible for some delays but that such delays along with discreet events do not take this case below the presumptive ceiling.
[16] On the leave application, the defence had submitted it was responsible for a 50 day period from June 20, 2018 to August 8, 2018 in the Ontario Court of Justice and a further 66 day period in the Superior Court of Justice for a total defence delay of 116 days or approximately 3.87 months.
[17] In submissions at the hearing, the defence submitted it solely caused 37 days in the Ontario Court of Justice and 2 months in the Superior Court.
Crown
[18] The Crown submits that defence delays alone and, in combination with discreet events in any event, take this case below the presumptive ceiling.
[19] On the leave application, The Crown submitted that the defence delay was 226 days (7 months and 16 days) and later revised this to be 280 days (9 months and 10 days).
[20] In submissions on the hearing, the Crown submits the defence delay was 223 days and 226 days (approximately 7 ½ months).
Discreet Delay
[21] Crown and defence did initially agree during the leave application that the period of discreet delay, as a result of the Crown’s unavailability, was approximately 31 days.
[22] However, the defence, in written submissions received by the court the day of the hearing, took issue as to this period.
[23] As a result of the various positions taken by the parties, the court has had to review all the material filed and submissions made to conduct the analysis and make the necessary findings.
General Factual Background
[24] Absent an agreed statement of facts, I will first deal with the less contentious matters, focus on the discreet events and the two periods of defence delay in the Ontario Court of Justice and the Superior Court of Justice.
In Ontario Court of Justice: November 29, 2017 to July 22, 2019
[25] The defendant’s first appearance before court in London was on November 29, 2017. He was represented by counsel, not Ms. Morrow, until approximately early February 2018 when she became counsel.
[26] Ms. Morrow appeared by agent on February 5, 2018 in relation to an additional charge. On February 6, Ms. Morrow travelled from her office in Toronto and arranged a consent release of Mr. P. at bail court.
[27] Many subsequent court appearance dates on various charges were often attended by agent for defence counsel. Various usual matters occurred including providing disclosure, receiving client instructions, and returning a signed undertaking to the Crown in relation to the disclosure of sensitive material.
[28] As to the other case(s) involving Mr. P., the court was informed in submissions that a trial in the Ontario Court of Justice was held and he was acquitted. This does not otherwise factor into the discussion of this application.
[29] Pretrial discussions between Ms. Decker, for the Crown, and defence were set for April 21, 2018 and then May 4, 2018 since the assigned Crown attorney had a family emergency and resulting death involving a family member. The pretrial discussion did proceed a month later on May 22, 2018.
[30] On June 13, 2018, a judicial pretrial conference was conducted. The case was adjourned to June 20, 2018 to set the dates for a preliminary hearing.
[31] On June 20, 2018, an agent for defence counsel attended the court appearance. The defence statement of issues was not available. The agent requested the matter be adjourned to file the statement and indicated Ms. Morrow was unavailable due to vacation until mid-July. The case was adjourned to July 25, 2018.
[32] On July 25, 2018, an agent for defence counsel advised that the statement of issues had not been filed due to a flooding incident at Ms. Morrow’s home. The matter was adjourned to August 1, 2018
[33] On August 1, 2018, Ms. Morrow advised Crown counsel by email that the statement of issues would not be filed. An agent again appeared for defence counsel and the matter was again adjourned one week to August 8, 2018 with an express s. 11(b) Charter waiver by the agent.
[34] This period of delay will be addressed later in this decision.
[35] On August 8, 2018, the dates for the preliminary hearing were set for three days in February 2019.
[36] In January 2019, Ms. Mildred was assigned the case and took over from Ms. Decker. The preliminary inquiry was conducted February 26 and 27, 2019 and eventually was continued on July 22, 2019 when the defendant was committed to stand trial on the charges.
[37] The preliminary inquiry did not occur on the third day as initially scheduled since a disclosure issue arose and the Crown had made a request to the police to address this issue before proceeding further. On March 18, 2019, the Crown advised that she recently discovered that the Crown’s request had not been sent to the police. As a result, two further additional days were proposed for the completion of the preliminary inquiry and were set for July 22, 2019 and August 14, 2019. This extended period could not be attributed solely to the defence.
In the Superior Court of Justice from August 13, 2019
[38] The case was before assignment court in the Superior Court in London on August 13, 2019.
[39] A judicial pretrial was set for October 17, 2019. This pretrial was cancelled and the case came up for the November 12, 2019 assignment court to set a trial date.
[40] On November 12, 2019, none of counsel, agent nor the defendant appeared. A bench warrant was issued returnable on December 10, 2019. The court directed counsel to attend court along with the defendant on the return date.
[41] On Dec 10, 2019, an agent appeared for Ms. Morrow who explained Ms. Morrow had not received the Crown’s Form 17 in time for her to complete her Form 17 in response. She also had mis-diarized the matter scheduled for November 12. The judicial pretrial was rescheduled for Jan 13, 2020 and case adjourned to January 16, 2020. The bench warrant was vacated. The presiding local administrative justice directed “the matter needs to move forward in a meaningful way” and that a copy of the endorsement be made and provided to the agent to be given to Ms. Morrow and stated that defence “cannot practice in this city like this”.
[42] The delay in these periods will likewise be addressed more fully later in this decision.
[43] On January 13, 2020, a judicial pretrial was held before a Justice with both counsel present.
[44] On the January 14, 2020 court appearance, both Crown and defence agent jointly requested a second judicial pretrial to streamline the process since there was disagreement about the scheduling of pretrial applications and other technological matters. The presiding local administrative justice commented the Jordan date was of significance and observed the case had taken 20 months to get to the Superior Court. A further judicial pretrial was set for February 5, 2020 and the case otherwise adjourned to the February 11, 2020 assignment court.
[45] On Feb 5, 2020, a further judicial pretrial was conducted. The presiding justice observed “the looming prospect of the Jordan ceiling”, noted that “counsel will be seeking the appointment of a case management judge with the Crown to file the request”, “very little was accomplished on streamlining the issues that must be addressed”, “defence counsel continued to insist that 3 separate dates were required for pretrial motions that would take 4 days”. The judge also noted the difficulties and remarked that defence’s scheduling suggestion “may not be achievable” and “may need a more condensed schedule subject to what the trial coordinator advises and the case management judge decides”. He also noted that “counsel do not agree as to how much delay was attributable to the defence. This may need to be litigated.”
[46] At the February 11, 2020 assignment court, Ms. Morrow initially addressed the court to raise outstanding disclosure issues and how that impacted an expert for the defence in addition to the pretrial motions contemplated. She commented that “there was no way we are going to make the Jordan deadline…of May 2020.” The presiding Justice then asked “are we going to schedule an 11(b) then?” and Ms. Morrow replied, “I think it is inevitable, right?” Mr. Spangenberg disputed the outstanding disclosure and made the observation that the case “seems to be going off the rails.” In retrospect, and in view of trial date availabilities, it was.
[47] Ultimately that day, the assigned Crown, Ms. Mildred, attended the court and addressed the disclosure issue as to the accessibility of links, the mirroring of the defendant’s cell phone and the report of the Crown expert, all yet to be disclosed. Substantial discussion ensued about various applications, filing deadlines, delays and ultimately meandered back to the s. 11(b) application. The case was adjourned to the March 10, 2020 assignment court and a conference call with the regional senior justice was to be arranged. This was promptly done.
[48] On February 20, 2020, the regional senior justice conducted a case management conference with both Crown and defence counsel. At that time, the justice ordered as follows:
a. The Crown to deliver any expert report to defence counsel.
b. The Crown to provide defence counsel with its position on the delivery of a hyperlinked CD-ROM containing reports of telephone search and addenda and its position on the delivery of the mirrored version of the complainant’s cell phone analysis given to the OIC, all within 30 days.
c. Various pretrial application dates were set over a period of 7 days from June 4 to 12, 2020 for specified applications including the s. 11(b) application.
d. Additional pretrial dates were set for 5 days from August 31, 2020 for additional specified applications.
e. The trial date was set for October 26, 2020 for 6 days to end on November 2, 2020.
f. March 26, 2020 was set to ensure that the pretrial motions were prepared as scheduled.
Covid-19 and court suspension
[49] In early March 2020, in view of the Covid-19 pandemic, court operations were suspended.
[50] On April 30, 2020, the regional senior justice conducted another trial management conference in view of the Covid-19 suspension of court operations and vacated June pretrial dates, confirmed pretrial applications for August 31 for five days and October 26 for six days.
[51] On July 14, 2020, before another Justice, the pretrial dates of August 31 to September 4 were vacated and a new schedule was adopted. The original trial dates were now made available for some of the pretrial motions. Additional dates of February 8, 9 and 10 were confirmed for the balance of motions. The trial was reset for six days to begin March 29, 2021 and ending April 5, 2021. All dates were arranged on consent by the parties and were the first available dates from the court.
[52] On August 17, 2020, a further phone conference before the regional senior justice amended and confirmed the pretrial dates to commence October 26, 2020 and February 8, 2021 with various filing deadlines.
[53] In London, jury trials commenced again on September 8, 2020.
[54] On September 30, 2020, a further judicial pretrial was requested to receive further direction of the court as to the order and timing of the various pretrial applications.
[55] On October 7, 2020, the regional senior justice conducted a further trial management telephone conference which amended the pretrial hearing dates and the order the applications were to be heard. The s. 11(b) application was to proceed during the six days commencing October 26, 2020.
[56] As identified in the earlier leave application, the Covid-19 suspension of court operations is certainly an exceptional circumstance. However, in view of the court’s management, any period of delay did not happen.
[57] From a practical and analytical perspective, the total presumptive delay based on the initial trial date commencing October 26 and ending on November 2, 2020 would be 35 months and 22 days.
[58] Even if based on the new trial date to end on April 2, 2021, the exceptional Covid suspension period time from March 17 and September 8, 2020 is 175 days. The presumptive delay is 1055 days, or 35 months and 15 days.
Law and Analysis
Overview
[59] In R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 and R. v. Williamson, 2016 SCC 28 [2016] S.C.J. No. 28, the Supreme Court of Canada established a new framework to be applied in relation to s. 11(b) of the Charter. In cases before the Superior Court of Justice, the new framework is a 30-month ceiling beyond which the delay is presumptively unreasonable unless the Crown can establish that the circumstances are particularly complex. Although referenced as a presumptive ceiling, this is the recognized outer limit from the date of charge to the conclusion of the hearing of evidence at a trial unless there are exceptional circumstances.
[60] In R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005, the Ontario Court of Appeal at paras. 34 to 40 has since summarized the approach required by the new framework as follows:
Step 1: Calculate Net Delay
(a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.
(b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from;
i. Defence Waiver: Clear and unequivocal defence waiver of his/her Section 11(b) rights;
ii. Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.
Step 2: Determine the Presumptive Ceiling
For cases in superior courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.
Step 3: Calculate Remaining Delay, if Necessary
(a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose which results in the Remaining Delay.
(b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.
Step 4: Remaining Delay Greater than Presumptive Ceiling
(a) Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.
(b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.
(c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.
Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling
(a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.
(b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:
(i) he made a sustained effort to expedite the proceedings; and
(ii) the case took markedly longer than it reasonably should have.
Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.
[61] In R. v. Cody, 2017 SCC 31, [2017] S.C.J. 31, the Supreme Court of Canada affirmed R. v. Jordan and went on to deal with particularly complex cases and stated at para 63:
[63] The second category of exceptional circumstances is concerned with particularly complex cases. The presumptive ceilings set in Jordan already reflect the “increased complexity of criminal cases since Morin”, including the emergence of “new offences, procedures, obligations on the Crown and police, and legal tests” (Jordan, at paras. 42 and 53). However, particularly complex cases may still justifiably exceed the presumptive ceilings.
[62] The facts in R. v. Cody were found not to amount to particular complexity where the person was charged with two counts of possession for the purpose of trafficking, counts of possession of a prohibited weapon and possessing a weapon when prohibited. Cody was not the primary target of the investigation and was arrested with a half kilogram of cocaine and a stun gun in his car. The disclosure involved over 20,000 pages on two CD’s. The trial was set for five days. The court found that there was extensive disclosure but this did not qualify as a particularly complex case when the balance of the proceeding appeared to be relatively straight forward.
[63] It was not argued that there were any procedures, other obligations or legal tests that made this case complex.
Discreet Delay
[64] The Crown pretrial discussion was initially scheduled for April 21, 2018 and then May 4, 2018. Both dates were unable to proceed based on Ms. Decker’s family emergency. The pretrial discussion did proceed on May 22, 2018.
[65] Where Discreet Events are found, these are calculated and deducted to determine the net delay.
[66] Discrete Events must be,
a. reasonably unforeseen or unavoidable, and
b. not able to be reasonably remedied once they arose.
[67] Ms. Decker, the assigned Crown attorney, disclosed to defence counsel by email dated April 21, 2018, that a member of her family was passing and she was leaving the province later that day and directed her administrative assistant to reschedule the discussion.
[68] On April 25, the Crown’s administrative assistant contacted defence counsel by email to indicate that Ms. Decker would be away for a few more days and cancel the May 4 pretrial with various available dates provided.
[69] Defence counsel, in an email dated May 7, 2018 at 3:57 pm to the Crown’s administrative assistant, enquired of anyone else who could do a pretrial discussion on the three matters before the May 29 date. The reply of the Crown’s assistant on May 8, 2018 indicated that May 22 or 25 would be earliest dates for Ms. Decker. Defence counsel then replied simply “confirmed for May 22 @ 3 pm”.
[70] On review of the transcript of the court appearances of April 25, 2018 and May 9, 2018, the agent for the defence counsel indicates “my instructions are to adjourn the matter to the 23rd of May for a Crown meeting that will take place on the 22nd for these three separate informations.” The agent did mention that s. 11(b) was “becoming an issue”, however, there is no reference on which or all of the three matters this pertained to.
[71] In these circumstances, I find the initial and continued short delay due to family circumstances of the assigned Crown Attorney was neither reasonably foreseeable nor avoidable. The case at this point involved three separate matters of which these charges were only one. Defence counsel’s single reference to anyone else to do the discussion was in reference to dates before May 29. This was in fact addressed by the Crown’s assistant and earlier dates were agreed to.
[72] There is no other indication on the record of any other practical alternatives or failures that can reasonably be attributed to the office of the Crown Attorney, particularly the manner personal matters for Ms. Decker unfolded.
[73] Defence counsel’s written submissions is that Ms. Decker was simply one of the Crown’s representatives and not essential to a fair process, that this was an early part of the process and that the Crown is obliged to develop solutions to human resources challenges. I disagree that a Crown, early assigned to case, is not essential to a fair process. Rather, taking an early, active and continued involvement in cases is both necessary and desirable for both the public and accused persons.
[74] I agree the Crown ought to develop solutions to challenges where warranted. This case is not one of those situations.
[75] I find this was a discreet event that amounts to 31 days.
Defence waiver
[76] There was defence waiver. I will address this in relation to other defence delay below.
Defence-caused delay - Ontario Court of Justice
Statement of issues
[77] After a judicial pretrial on June 13, 2018, the case was before the court on June 30, 2018 and defence counsel was aware that a statement of issues was required to be filed before a preliminary date could be set. The case was adjourned to July 18, 2018 to file the statement of issues. The July 18, 2018 date was changed by an intervening matter which extended the appearance date to July 25, 2018.
[78] On July 25, 2018, an agent appeared for defence counsel to indicate that defence counsel had a personal issue involving a flooded basement and requested a week to file the statement of issues. The matter was adjourned one week.
[79] On August 1, 2018, defence counsel’s agent again appeared, indicated counsel had an urgent personal matter and was not able to attend court and requested that the case be adjourned one week and provided a s. 11(b) waiver.
[80] On August 8, 2018, the court clerk stated that November 26, 27 and 28 are available dates for the preliminary hearing. There is no indication on the record the Crown was available to proceed on these dates. Rather, earlier available January dates and mid-February 2019 dates were not available to the assigned Crown, Ms. Decker. Ultimately, February 25, 26 and 27 were arranged.
[81] I find the statement of issues should have been filed on or before June 30, 2018. The delay attributed solely to the defence operates from June 30, 2018 to August 8, 2018 for a total of 39 days in this court. This includes the period of waiver mentioned earlier.
Defence-caused delay – Superior Court of Justice
Cancellation and rescheduling of the judicial pretrial
[82] The preliminary hearing committal was July 22, 2019. The case was then next before the Superior Court.
[83] At the August 13, 2019 assignment court, in reference to setting a judicial pretrial, defence counsel’s agent indicated Ms. Morrow had limited availability, she was on vacation until September 9, then was commencing a lengthy Superior Court trial in Toronto and was available from October 16, 2019. The pretrial was set for October 17, 2019. Setting of judicial pretrial dates, the date beyond successive assignment courts is not usual in this jurisdiction. Often the pretrial is set before the next assignment court.
[84] On this record, there was no indication as to what dates the Crown was available. I am mindful of the comments made by the presiding justice that this delay lies at the feet of the defence and that the court was able to offer the parties dates in August and early September.
[85] However, absent evidence of what earlier dates the Crown was available, this court cannot make such a finding that the delay in setting the pretrial date rests solely on the defence and to what extent. Defence counsel’s pre-scheduled vacation and a previously scheduled and lengthy Superior Court matter back-to-back over a relatively short period of time cannot reasonably be regarded as delay caused by defence. This is not delay that can be found solely as defence-caused. These events may well have inevitably led to a longer period of time, but they collectively in these unusual circumstances ought not to automatically be considered as solely defence-caused.
Cancellation of initial judicial pretrial
[86] The judicial pretrial was set for October 17, 2019.
[87] On October 15, 2019, the Crown Attorney’s office sent to defence counsel a 22 page fax of Form 17, the prescribed judicial pretrial form.
[88] On October 16, 2019 at 12:36 pm, the trial coordinator advised defence counsel that the “pretrial is being cancelled as we have not received a memo from defence counsel” and that a new date would be scheduled at the November 12 assignment court.
[89] Defence counsel’s response by email at 1:46 pm was that the Crown report was sent to her the day before at 10:30 am by fax and that she had not received the telephone coordinates for the pretrial. The trial coordinator replied that the judges “are taking the position that not having received the Crown’s memo doesn’t preclude you from filing yours” and “if you are requesting to participate via teleconference, then it is your responsibility to provide the dial in information to the court…” The trial coordinator’s indication was proactive and consistent with the spirit and direction of the rules.
[90] The October 17, 2019 judicial pretrial was cancelled and the case was adjourned to November 12 assignment court. On that date neither the defence counsel nor Mr. P. attended and a bench warrant was issued returnable to the December 10 assignment court.
[91] In oral submissions, defence counsel indicated she had been told by other counsel that there was a local practice with which she was not familiar. She also submits that she had not been given reasonable time to prepare and respond and that was a matter placing substance over form.
[92] The starting point is the Criminal Proceeding Rules for this court. These are clear and ought to be well known. The pertinent parts of Rule 28, as emphasized in bold lettering, are as follows:
(1) The pre-trial conference report shall be in Form 17.
(2) Counsel of record for each accused and the prosecutor assigned to conduct the prosecution, or a prosecutor with authority to bind the prosecutor assigned to conduct the prosecution, shall complete and sign a pre-trial conference report in Form 17, and serve and file the report in accordance with this rule, unless otherwise ordered by a judge of the court, or unless the accused will be pleading guilty and has complied with subrule (4).
(5) All counsel must complete their positions on each issue in Form 17, and not indicate “will advise”, “not as yet”, or words of similar effect.
(6) The prosecutor’s copy of Form 17 shall also include the following information based on the information available to the prosecutor at the time of completion of the pre-trial conference report:
o (a) a brief synopsis of the allegations, including how the prosecutor intends to prove them;
o (b) a statement of the prosecutor’s position on sentence if there were to be a plea of guilty prior to trial, including any requirement of a joint submission and plea on certain counts of the indictment;
and a statement of the prosecutor’s position on sentence upon conviction after trial, including whether dangerous or long-term offender proceedings may be taken in the event of conviction.
(7) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, the prosecutor must serve counsel of record for each accused, or where the accused is self-represented, the accused, not later than ten (10) days before the date scheduled for the pre-trial conference.
(8) Unless otherwise ordered by a judge of the court or where the accused will be pleading guilty, counsel of record for each accused, or the accused if self-represented shall serve the prosecutor, counsel for each co-accused and any other self-represented accused not later than five (5) days before the date scheduled for the pre-trial conference, even if the prosecutor has failed to serve and file Form 17, or otherwise failed to comply with this rule.
(10) Where all counsel will be filing a joint pre-trial conference report, it shall be filed five (5) days before the date scheduled for the pre-trial conference.
[93] Further, the obvious implications from both Jordan and Cody, as I have stated in other cases, are these: the management of criminal cases requires all participants to share in the responsibilities and obligations on a sustained, substantial pro-active and collaborative basis in order to provide efficient, effective and fair trials and give meaning to constitutionally guaranteed rights.
[94] As the court in Jordan observed, real change requires the efforts and coordination of all participants in the criminal justice system. What this means in particular for Crown, defence and the courts was expressed in Jordan as follows:
[138] For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.
[139] For the courts, this means implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials….
[95] Defence counsel can and should make themselves familiar with the local practice and the pertinent rules. One enquiry to the trial coordinator by defence counsel would have remedied any lack of knowledge of the local practice in this case. There was no impediment to do so at any time. Rather, the record demonstrates the trial coordinator was immediately responsive when contacted by defence counsel. The court administration was otherwise taking the advanced step to make enquiries of counsel of their filing obligations, something they both had scheduled weeks before.
[96] This case gives pause for concern about the approach by Crown and defence toward fulfilling shared responsibilities. The Crown’s Form 17 was late-filed in this case. However, this does not relieve nor excuse defence counsel from its obligation to complete, serve and file a Form 17 as expressly stated by Rule 28(8). The presumption is that the Crown and defence are communicating and managing the case meaningfully. If not, the Rules outline what must be done. Shorter time periods can be addressed between the parties with little difficulty. This court frequently entertains such shorter periods when all parties make the court aware of the situation and circumstances.
[97] The court can only discharge its functions meaningfully at pretrial with the necessary information provided in a timely manner.
[98] Defence counsel also suggested that the Crown’s Form 17 was deficient. This, however, does not relieve nor excuse the defence of its obligations. If the Form is deficient, this should be addressed directly and immediately at the judicial pretrial.
[99] I am also mindful, as evidenced in the endorsement of the regional senior justice as late as February 20, 2020, that disclosure matters remained an issue to be addressed throughout this period.
[100] I find that delay in relation to the judicial pretrial scheduled for October 17, 2019 was caused solely by the defence. Defence counsel did not appear before the court on November 12, 2019. On December 10, 2019, the pretrial was set for and proceeded on January 13, 2020.
[101] The entire period of 88 days from October 17, 2019 to January 13, 2020 is delay attributed solely to the defence.
Various other matters
[102] In submissions, the Crown argued that the position taken by the defence, to want separate dates between pretrial applications, was unreasonable and this was delay solely attributable to the defence.
[103] As mentioned earlier, the regional senior justice’s endorsement dated February 20, 2020 dealt with disclosure issues which the Crown had yet to address. Accordingly, it cannot be found that the delays over these time periods were solely attributable to the defence. This is not to say that the position of the defence to have significant time between pretrial motions was reasonable. In situations like this, shorter time frames for filing and addressing materials becomes necessary and all counsel must work collaboratively.
Summary and Disposition
[104] Where the presumptive delay of the initial trial date was 5 months and 24 days (174 days in total) and the total delay solely attributable to the defence is 127 days plus 31 days for discreet events. for a total of 158 days, then the remaining delay exceeds the presumptive ceiling by 16 days.
[105] Where the presumptive delay of the current trial date applies, the remaining delay would still exceed the presumptive ceiling by only approximately 2 days.
[106] Even if this had been a situation where the presumptive ceiling had not been exceeded but was only within a few days of the presumptive ceiling, this may be a case where this court could have found the delay unreasonable. However, this was not raised nor argued by either party in this case.
[107] Since the presumptive ceiling is exceeded in any event, the application must be granted and the charges against applicant-defendant are stayed pursuant to s. 24(1) of the Charter.
[108] As has been recognized in many other cases, the result in this case does mean that the community and others in this case are deprived of a trial on the merits of serious charges. However, the court must be attentive to, respect and uphold the guaranteed rights of all citizens. As our Supreme Court of Canada in Jordan observed (at para. 41), “Timely trials are possible. More than that, they are constitutionally required.” This court has taken particular effort to ensure that this constitutional requirement is observed and respected.
[109] As Jordan directs, real change requires among other things, the sustained efforts and the coordination of all participants. That was unfortunately lacking between the Crown and defence in this case.
[110] Some final comments should also be made in these circumstances. The regional senior justice had issued directions months ago about the pretrial applications. These included this s. 11(b) application. I likewise had ordered directions specifically on the s. 11(b) leave ruling.
[111] Defence counsel offered the allocation of resources for incomplete materials as an explanation, however, this cannot be an excuse in view of multiple court directions. Both parties largely ignored the directions of this court for the leave application. The result was, in retrospect, that the court heard days of pretrial applications on various other matters and then had to proceed with this application based on a record that was less than desirable. I can only echo the comments of one of the Justice from the appearance of December 10, 2019 in this case: do better.
MCARTHUR, M.D., J
Released: November 19, 2020
COURT FILE NO.: 304-19
DATE: 20201119
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J. P.
Ruling on section 11 (b) charter application
McArthur J.
Released: November 19, 2020