Court File and Parties

Court File No.: CR-19-70000652-0000 Date: 2021-02-10 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Lascelles Wilson, Applicant

Counsel: S. Duffey, for the Respondent R.R. Gadhia, for the Applicant

Heard: January 7, 2021

Reasons for Decision

SCHRECK J.:

[1] Lascelle Wilson’s trial on break and enter, assault with a weapon and other charges is scheduled to end on December 7, 2021, over 42 months after he was first charged. He has applied, pursuant to ss. 11(b) and 24(1) of the Charter, for a stay of proceedings on the basis that his right to a trial within a reasonable time has been infringed.

[2] Shortly before the applicant’s jury trial was originally scheduled to begin on October 13, 2020, the applicant learned of the existence of several police occurrence reports involving the complainant which the Crown had unintentionally failed to disclose. Some of this material was voluntarily disclosed by the Crown and some was the subject of a successful disclosure application, but some could only be obtained through a third-party records application.

[3] At the time the applicant’s initial trial was to begin, jury trials had been suspended because of the ongoing COVID-19 pandemic. The applicant takes the position that but for the late disclosure, he would have re-elected to have a judge alone trial and his trial would have proceeded as scheduled. Based on this, he submits that the delayed trial is the direct result of the Crown’s failure to make timely disclosure.

[4] The following reasons explain why the application is dismissed.

I. Evidence

A. Initiation of the Proceedings

[1] On June 3, 2018, an Information was sworn charging the applicant with break and enter, assault causing bodily harm, assault with a weapon and mischief under $5000. He surrendered himself two days later and at that time was released on a recognizance. His matter was adjourned to July 6, 2018. The Crown indicated that disclosure would be available in three to four weeks.

[2] Over the next several months, the applicant began the process of retaining counsel and pre-trial conferences took place. On November 16, 2018, the parties scheduled a preliminary inquiry to begin on September 19, 2019. A judicial pre-trial was scheduled to take place before that on July 8, 2019.

B. Disclosure Requests and the Crown’s Response

[3] On July 5, 2019, counsel for the applicant sent the Crown a disclosure request which included a request for the “criminal records and occurrence reports for all witnesses and the Complainant”. Some disclosure was provided at the judicial pre-trial on July 8.

[4] Further disclosure requests were sent on July 25, August 22 and September 6, 2019, again seeking criminal records and occurrence reports relating to the Crown witnesses. On September 6, 2019, Crown counsel advised the applicant’s counsel that neither civilian Crown witness had a criminal record and that there were no occurrence reports relating to the complainant. As explained below, although there is no reason to believe that Crown counsel did not believe this information to be accurate, it turned out that it was not.

C. The Preliminary Inquiry and Setting of Trial Dates

[5] The preliminary inquiry began on September 19, 2019. At the outset, the applicant elected to be tried by a court composed of a judge and jury.

[6] One of the Crown witnesses was unavailable to attend court due to illness, so the matter was adjourned to October 1, 2019 for the preliminary inquiry to continue. On that date, the applicant was discharged on the mischief count and committed for trial on the remaining counts.

[7] The applicant’s first appearance in Superior Court was on October 22, 2019, at which time a judicial pre-trial was scheduled for January 9, 2020 and the matter was adjourned to October 28 to see if an earlier pre-trial could be scheduled. On that date, the pre-trial was rescheduled to November 15, 2019.

[8] After the judicial pre-trial on November 15, 2019, the applicant scheduled a 12-day jury trial that was to begin on October 13, 2020. A confirmation date was set for June 16, 2020.

D. Suspension of Court Operations

[9] On March 17, 2020, the Chief Justice of the Superior Court suspended all in-person court operations as a result of the COVID-19 pandemic and all court appearances were administratively adjourned. On June 15, 2020, there was a further administrative adjournment to July 9, 2020. By that date, court operations had resumed and the applicant’s matter was adjourned to September 14, 2020 to confirm the trial date.

E. Disclosure of the Existence of Occurrence Reports

[10] On September 14, 2020, counsel confirmed the October 13 date on which the jury trial was scheduled to begin. The applicant’s counsel filed applications to have the applicant sit at counsel table and to challenge prospective jurors for cause. The following day, Crown counsel filed an application to adduce hearsay evidence.

[11] On September 24, 2020, counsel for the applicant received an e-mail from the Case Management Legal Administrator from the Crown Attorney’s Office which included an attachment entitled “Further Disclosure Wilson – Redacted”. This document contained information about 14 occurrences involving the complainant about which the police had records. The complainant’s involvement in these occurrences was as a witness, victim, subject or “person of interest”. Some of these occurrences were from before September 6, 2019, the date on which Crown counsel advised the applicant’s counsel that there were no occurrences involving the complainant. Others, including those relating to outstanding charges of trafficking in a controlled substance against the complainant, came to exist after. There is no suggestion that Crown counsel intended to mislead the applicant’s counsel.

[12] The applicant’s counsel immediately requested disclosure of the recently-discovered occurrences. On September 28, 2020, Crown counsel disclosed information with respect to some of the occurrences, including those relating to the outstanding trafficking charges against the complainant. However, the Crown took the position that the remaining occurrences were irrelevant and therefore not subject to the Crown’s disclosure obligations and that the defence had to bring a third-party records application to obtain this material. Counsel for the applicant replied the same day indicating that she intended to bring a third-party records application with respect to the material that had not been disclosed.

F. The Stinchcombe Application

[13] Counsel for the applicant did not bring a third-party records application. Instead, she quickly prepared and filed a Stinchcombe application, which was heard by Monahan J. of this court on October 7, 2020. Prior to the hearing of the application, the Crown agreed to disclose some occurrence reports and a recording of a 911 call from December 30, 2019 in which the complainant had called the police and falsely alleged that a certain individual had broken into her friend’s home.

[14] In a series of three rulings delivered on October 7 and 8, 2020, Monahan J. ordered that the following be disclosed:

• Occurrence reports and a recording of a 911 call from October 22, 2019. These related to a call made by the complainant to the police in which she alleged that a certain person who was with her friend was a drug dealer. The police spoke to the complainant’s friend and determined that although she was intoxicated, she was otherwise well.
• Occurrence reports and two 911 calls from November 28, 2019 relating to an allegation of domestic assault made by the complainant against an individual (not the applicant). The individual was subsequently arrested.

Monahan J. declined to order the disclosure of the following:

• Another occurrence report from November 28, 2019 in relation to an alleged robbery by three males who were never identified. Monahan J. reviewed the report and determined that the complainant was not actually mentioned in it.
• An occurrence report from December 13, 2017 in relation to an allegation that someone pointed a firearm. Monahan J. reviewed the report and determined that although the complainant is mentioned in it, it is not alleged that she owned the firearm or that she was the person who pointed it.
• The Information to Obtain (“ITO”) sworn in support of the search warrant executed on July 24, 2020 that led to the complainant being charged with trafficking in a controlled substance, as well as information respecting why the police commenced the investigation into the complainant. Monahan J. held that these were third-party records not subject to the Crown’s disclosure obligations.

G. The Request for Further Disclosure

[15] On October 12, 2020, counsel for the applicant wrote to the Crown seeking disclosure of the following:

(1) the Intergraph Computer-Assisted Dispatch (“ICAD”) printouts for all 911 calls and the notes of the police officers who attended following the November 28, 2019 911 calls; (2) the “time notation between the 2nd call on November 28th and the arrest [of the individual who was the subject of the complaint]”; (3) information respecting a text message apparently sent by the complainant to Crown counsel and information relating to whether a certain individual was the complainant’s surety on the drug charges; and (4) pages that had been redacted from the complainant’s medical reports.

Crown counsel replied the same day and took the following positions with respect to the requests:

(1) the material being requested related to material that was not obviously relevant or part of the investigative file and was therefore properly the subject of a third-party records application; (2) the relevance of the material being sought was unclear and clarification was requested; (3) some of the redacted medical records would be disclosed but some were irrelevant and could only be disclosed following a successful third-party records application; and (4) Crown counsel had no further information with respect to the text message.

H. The Complainant Reports Symptoms of COVID-19

[16] On September 30, 2020, Crown counsel advised the applicant’s counsel that she had been informed that the complainant was experiencing COVID-19 symptoms. When the complainant continued to report symptoms on October 6, 2020, Crown counsel filed an application the following day seeking an order permitting the complainant to testify by videolink. At the time, a screening protocol at the courthouse denied entry to any person experiencing COVID-19 symptoms.

I. Suspension of Jury Trials

[17] On October 9, 2020, the Chief Justice ordered that all jury trials in the Toronto Region be suspended for a period of 28 days. On November 21, 2020, all jury trials in the province were suspended until at least January 4, 2021. Subsequent orders extended the suspension of jury trials. At the time these reasons were released, jury trials in Ontario are suspended until at least May 3, 2021.

J. The Trial Does Not Proceed

[18] On October 13, 2020, the day the trial was scheduled to begin, the parties appeared before Kelly J. and counsel for the applicant stated the following:

As a result of [the Stinchcombe application], a number of items were, in fact, released to the defence. Those items came into my office on Saturday; streamed in from Thursday to Saturday and, as a result, I’ve asked for additional materials from my friend. My friend has indicated that that would require a third-party records application. I also understand that the complainant, who has indicated, going back as far as September 30th has been experiencing symptoms similar to that of COVID-19. She has not been tested but I understand my friend is now bringing an application for a 714 application for her to testify remotely. All of this is just new. And although my client wishes to get this matter on, was prepared to [indiscernible] a judge alone trial in order to get this matter moving, the landscape has changed considerably and he is now of the view that a jury trial is the appropriate way to go. So we are now a jury trial.

[19] Kelly J. advised the parties that Monahan J. was available to hear any further applications within the next two weeks. Counsel for the applicant advised the court that she was unable to prepare the third-party records application within that time.

[20] After a series of short adjournments, the parties re-scheduled the trial to commence on November 22, 2021, the earliest date the court had available. Counsel for the applicant was available as early as November 2020 and had availability earlier in 2021. A third-party records application was scheduled for February 18, 2021.

II. Analysis

A. Overview

[21] The proper approach to determining whether there has been a s. 11(b) Charter violation is now well established. It was set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 and summarized in R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at paras. 112-119:

The first step 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, leaving the “Net Delay”. Defence delay has two components: that arising from defence waiver and, that caused solely by the conduct of the defence (“defence-caused delay”). The latter is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are straightforward examples of defence-caused delay (Jordan, at paras. 60-67).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable (Jordan, at para. 68).

To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown’s control, in that they are: (1) reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the delay emanating from the circumstances once they arose. Such circumstances need not be rare or entirely uncommon (Jordan, at paras. 68-69).

Generally, exceptional circumstances fall under two categories: (1) discrete events; and (2) particularly complex cases. An illustration of a discrete event is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at paras. 71-72).

The period of delay caused by discrete events must be subtracted from the Net Delay -- yielding the “Resulting Delay” -- for the purposes of determining whether the presumptive ceiling has been reached. If the Resulting Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex, such that the time the case took was justified and the delay reasonable (Jordan, at paras. 75-80).

If the Resulting Delay falls below the presumptive ceiling, the onus shifts to the appellants to show that the delay is unreasonable. Stays beneath the ceiling are expected to be rare and limited to clear cases (Jordan, at paras. 82-83).

[22] The trial in this case is in the Superior Court of Justice. The applicable ceiling is therefore 30 months from the time the charge was laid, which in this case was December 3, 2020.

B. Application of the Framework

(i) Total Delay

[23] The Information in this case was sworn on June 4, 2018 and the applicant’s trial is scheduled to end on December 7, 2021. The total delay is therefore 42 months and four days.

(ii) Defence Delay

[24] What constitutes defence delay for the purposes of a s. 11(b) analysis was described in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 44:

Defence caused delay is comprised of situations where the acts of the defence either directly cause the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay. Where the Court and the Crown were ready to proceed but the defence is not, the defence will have directly caused the delay.

[25] The respondent submits that the virtually all of the period between October 12, 2020, the initial trial date, and November 22, 2021, the rescheduled trial date, is defence delay. As I understand the argument, this is based on a submission that the defence was not duly diligent in pursuing disclosure and because both the court and the Crown were ready to proceed on the initial trial date but the defence was not. I do not accept either submission.

[26] While the Crown has a duty to disclose all relevant material in its possession, defence counsel also has a duty to actively seek and pursue disclosure and to raise any failure by the Crown to provide disclosure at the earliest opportunity: R. v. Dixon, [1998] 1 S.C.R. 244, at para 37. The defence fulfilled that duty in this case. Counsel made repeated requests for disclosure, including any occurrence reports relating to the complainant. Defence counsel reasonably relied on Crown counsel’s assertion that no such reports existed. Once it became apparent that they did, defence counsel immediately requested disclosure from the Crown. When the Crown refused to provide some of it, defence counsel brought a disclosure application on an expedited basis.

[27] I accept that at the time Crown counsel advised the defence that there were no occurrences relating to the complainant, she believed this to be true. Most of the occurrences that later came to light related to events that took place after Crown counsel had responded to the disclosure request and after the preliminary inquiry. The respondent takes the position that once Crown counsel inquired of the police whether any occurrences existed and was told that they did not, there was no obligation on the Crown to make any further inquiries absent a new disclosure request by the defence. I do not agree. It is well established that the Crown’s disclosure obligation is ongoing: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 343. The Crown is not relieved of its obligation once it has made inquiries of the police and reported back to defence counsel: R. v. Sothilingam, [2018] O.J. No. 4685 (C.J.), at paras. 31-35; R. v. Keyes, 2017 ONCJ 5, 373 C.R.R. (2d) 288, at paras. 32-36.

[28] The respondent’s second submission is that when the trial was scheduled to begin on October 13, 2020, the court and the Crown were ready to proceed but the defence was not because of a “strategic decision to adjourn the trial date rather than re-elect to a judge alone trial, litigate a video link application, and bring a disclosure/third party records application.” As a result, all of the ensuing delay is attributable to the defence.

[29] The difficulty with this submission is that the court was not ready to proceed and the defence did not actually seek an adjournment. All counsel for the applicant did was advise the presiding judge that in light of recent events, the applicant was not willing to change his existing election to have a jury trial. As jury trials had been suspended, the matter could not proceed and was adjourned for that reason.

[30] In all the circumstances, I am of the view that no time should be deducted as defence delay in this case. As a result, the net delay is presumptively unreasonable unless the Crown can establish that there were exceptional circumstances.

(iii) Exceptional Circumstances

(a) The Pandemic

[31] As noted earlier, the ostensible reason why the trial did not proceed on the scheduled trial date was that it was a jury trial and jury trials had been suspended. The matter was then rescheduled to November 22, 2021, the first date the court had available. Because of the COVID-19 pandemic, there is a significant backlog of jury trials.

(b) The Applicant’s Argument

[32] If the matter could not proceed because of the pandemic, there is no doubt that this would be an exceptional circumstance and the ensuing delay would be deducted from the net delay, leaving a resulting delay that is below the 30-month ceiling. However, the applicant takes the position that but for the late disclosure of the occurrence reports, he would have re-elected to have a judge alone trial and the trial would have proceeded as scheduled. He submits that his decision not to re-elect was the result of the late disclosure and the resulting lack of sufficient time for his counsel to prepare a third-party records application. The delay is therefore not the result of the pandemic but, rather, the Crown’s failure to fulfil its disclosure obligations in a timely fashion. As a result, no time should be deducted because of exceptional circumstances and the resulting delay is well over the 30-month ceiling.

(c) The Central Issue

[33] Thus, the real issue is whether the applicant’s decision not to re-elect to have a judge alone trial which could proceed as scheduled is the result of the late disclosure. In my view, the applicant bears the burden of establishing that this decision not to re-elect was the result of the non-disclosure. There are two reasons for this conclusion. First, the Crown has made a prima facie showing that such circumstances exist. If the applicant asserts that these circumstances do not justify the delay, it should bear the burden of establishing why this is. Second, the reasons for the applicant’s decision not to re-elect his mode of trial are within the peculiar knowledge of the defence: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 210.

[34] In my view, the applicant has failed to establish that he did not re-elect his mode of trial because of the non-disclosure. There are three reasons for this conclusion.

[35] First, counsel for the applicant advised Kelly J. on October 12, 2020 that the late disclosure was not the only reason the applicant was not re-electing. The other reason was that the complainant had reported having symptoms of COVID-19 and the Crown was applying to have her testify by videolink. That this was a factor in the applicant’s decision not to re-elect was also made clear in the applicant’s factum, at para. 52:

While counsel for the Applicant was initially prepared to re-elect in order to expedite the process and accommodate the Court, it became abundantly clear that the additional records were in fact necessary and that the Complainant’s credibility required that she attend to give her evidence in person. [Emphasis added].

The fact that the complainant could not attend court personally because she had reported COVID-19 symptoms is clearly an exceptional event over which the Crown had not control. On this record, the applicant has not established that the it was only the late disclosure the led him to maintain his election for a jury trial.

[36] Second, apart from counsel’s assertion on October 13, 2013 that the applicant had been contemplating a re-election, there is no indication in the record before this court that this was ever going to be anything other than a jury trial. The applicant elected to have a jury trial at the beginning of the preliminary inquiry on September 19, 2019. When he set trial dates in this court on November 15, 2019, he indicated through his counsel that it was to be a jury trial. On the trial confirmation date on September 14, 2020, the applicant confirmed that he was ready to proceed to trial and no mention was made of any possible re-election.

[37] Third, once the existence of the occurrence reports came to light, the Crown disclosed some of them and Monahan J. ordered that the remaining relevant portions be disclosed. In my view, the remaining items which were to be the subject of a third-party records application had only tangential, if any relevance. While there may be cases where tactical decisions made by the defence can be said to be the result of the late disclosure by the Crown, whether or not this can be established will depend on the relevance of late disclosure and its importance to the defence. As a general rule, the less relevant the disclosure, the more difficult it will be to establish such a link: R. v. Elliot, [2019] O.J. No. 2868 (S.C.J.), at para. 43.

[38] Based on the foregoing, the Crown has rebutted the presumption of unreasonableness in this case because the applicant’s jury trial could not proceed as a result of the exceptional circumstances created by the ongoing pandemic.

III. Disposition

[39] The application is dismissed.

Justice P.A. Schreck

Released: February 10, 2021