COURT FILE NO.: CR-19-50000142-0000 DATE: 20210210 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DAVID OBREGON-CASTRO Applicant
Counsel: Sunita Malik, Counsel for the Crown Alana Page, Counsel for the Applicant
HEARD: January 29, 2021
M.A. CODE J.
Reasons for Judgment on Section 11(b) Motion
A. Overview
[1] The Applicant Obregon-Castro is awaiting trial in this Court on an Indictment alleging various offences related to the shooting of one Anthony Klinker on May 11, 2018. The charges include discharge of a firearm, aggravated assault, and possession of a loaded firearm. There is no dispute that Klinker was shot twice in the leg on that date in an alley outside the Z-Bar in Etobicoke. The main issue in the case is the identity of the perpetrator.
[2] The Applicant was arrested two weeks after the shooting, on May 25, 2018. He has remained in custody. He was committed for trial after a four day preliminary inquiry on February 7, 2019. He first appeared in this Court on February 28, 2019 and, after a Judicial Pre-Trial on March 19, 2019, a date was set for a three week jury trial beginning on April 6, 2020. That initial trial date was adjourned to a second trial date scheduled for March 8, 2021. That second trial date was adjourned to a third trial date scheduled for November 29, 2021, which remains the present trial date. If the trial proceeds, as presently scheduled, it is expected to conclude on or about December 24, 2021. That will be approximately 43 months after the Applicant’s arrest.
[3] The Applicant brought a s. 11(b) Charter of Rights Motion alleging that the above-summarized delay violated his right to trial within a reasonable time. I heard the motion on January 29, 2021, over Zoom due to present restrictions on appearances at the Court House during the Covid-19 pandemic. Both parties filed substantial documentary records. There was no viva voce testimony. At the end of the one day hearing I reserved judgement. These are my Reasons for Judgement.
B. Facts
[4] It can be seen that the 43 month total delay in this case substantially exceeds the 30 month presumptive s. 11(b) ceiling established by the Supreme Court in R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.). The parties agree that a certain amount of this total delay has to be deducted, some of it as “defence delay” and some of it as an “exceptional circumstance” (the Covid-19 pandemic). The main dispute is as to the amount to be deducted and whether it reduces the net delay below the 30 month “presumptive ceiling”. In the alternative, the Applicant submits that even if the “net delay” is below 30 months, it remains unreasonable in the particular circumstances of this case. I will summarize the history of the proceedings, focusing on the particular areas that are in dispute.
[5] There was no unreasonable trial delay in the early stages of this case, that is, while it was proceeding through the Ontario Court of Justice. There was some minor “defence delay” that I will address below when I come to that issue. Otherwise, the parties attended at a Judicial Pre-Trial on October 10, 2018 and scheduled a four day preliminary inquiry for February 4 to 7, 2019. It was completed on time and the Applicant was committed for trial.
[6] There is no serious dispute that the above early history of these proceedings did not put the case in any s. 11(b) Charter jeopardy. The case had some complexity, it was a serious case, the accused was in custody, and four days of court time was required for the preliminary inquiry. The completion of the Ontario Court of Justice stage of proceedings in this kind of case in about eight and a half months – from May 25, 2018 to February 7, 2019 – indicates reasonable expedition.
[7] The Applicant’s real complaint about this early stage of the proceedings is not that it caused any delay of the trial. Rather, the complaint is that disclosure was delayed. In particular, one important piece of evidence – video surveillance from the Z-Bar – did not emerge until the preliminary inquiry. Later in these Reasons, I will discuss whether these difficulties with disclosure have any impact on the s. 11(b) analysis.
[8] The Indictment was first spoken to in this Court on February 28, 2019 and the Judicial Pre-Trial was set for March 19, 2019. The parties then scheduled a three week jury trial to commence on April 6, 2020. The explanation for setting this first trial date some twelve and a half months into the future, when the Applicant was in custody, appears to relate to the availability of counsel. It was stated on the record that the Court and the Crown were available to start the trial on January 6, 13 and 20, 2020 but that defence counsel was not available on any of these dates. The Court and defence counsel were available to start the trial shortly after, on January 27, 2020, but the Crown was not available on these dates. The earliest date when all parties were available for trial was April 6, 2020 and that date was set.
[9] It is agreed that some portion of the above twelve and a month period should be characterized as “defence delay”, due to defence counsel’s unavailability on the three earliest dates when the Court and the Crown were ready to proceed. See: R. v. Mallozzi (2018), 2018 ONCA 312, 407 C.R.R. (2d) 266 (Ont. C.A.). However, this “defence delay” was no more than three weeks (from January 6 to 27), which has no real impact on the result of this s. 11(b) Motion. I will briefly address this issue later in these Reasons.
[10] Once again, the real defence complaint about this twelve and a half month period of delay, leading up to the first trial date, is that there were ongoing disclosure delays. The Applicant submits that these delays in disclosure, unlike the earlier disclosure delays prior to the preliminary inquiry, did ultimately result in trial delays. Indeed, this is the key factual issue in dispute on the s. 11(b) Motion. The Crown submits that the April 6, 2020 trial date was ultimately adjourned because of the Covid-19 pandemic. The Applicant, on the other hand, submits that the trial was adjourned because of police and Crown delays related to interviewing and disclosing the anticipated evidence of a new and significant Crown witness, one Sofia Casella. Given the importance of this factual dispute to the resolution of the s. 11(b) Motion, I will set out this part of the evidentiary record in some detail.
[11] In the fourteen month period between committal at the end of the preliminary inquiry (February 7, 2019) and the first scheduled trial date (April 6, 2020), the police carried out further investigation. When the Applicant Obregon-Castro had been arrested on the present charges relating to the shooting incident at the Z-Bar in Etobicoke, he was also arrested on an unrelated charge of murder that took place around the same time in downtown Toronto. The officer-in-charge of the Etobicoke shooting case was D.C. Jugpall. He was a plain clothes Toronto police officer working out of a specialized unit that investigated shootings in three separate divisions, including the Etobicoke division. There were a record number of shootings in Toronto in 2019 so this unit was particularly busy. It was called the Gun Violence Suppression Unit. The murder case was investigated by the Toronto Homicide Squad. The officer-in-charge was Detective Price.
[12] The Toronto homicide officers had obtained certain evidence that was of interest to the Etobicoke shooting investigation. In particular, the cell phones and telephone records of the Applicant Obregon-Castro and his co-accused on the murder (a woman named Sarai Lopez-Iglesias) had been obtained by the Homicide Squad. On May 25, 2019, the Etobicoke officers were granted search warrants and production orders relating to these phones and phone records being held by the Homicide Squad. The May 25 judicial orders were valid for 30 days but they were never executed. D.C. Jugpall explained, in a subsequent email to the Crown, why he did not execute these search warrants and production orders in late May and early June 2019:
I was unable to execute the original May 25, 2019 warrant as that particular month was extremely busy and unfortunately I was involved in investigating numerous other shooting investigations, as well as other investigations. I received additional information on June 4 th , 2019 which ultimately prompted me to type additional warrants, including the ones for Instagram . I wrote these in September as in between I was also away on vacation and involved in numerous other serious investigations” [Emphasis added].
[13] The “additional information” that D.C. Jugpall received on June 4, 2019, that caused him to re-write the warrants, came from Det. Price of the Homicide Squad. The new information was set out in an email with the subject line “MLAT” (meaning Mutual Legal Assistance Treaty). Det. Price advised D.C. Jugpall of the “MLAT results from Instagram/Facebook” that had been “provided to Det. Price by Department of Justice Canada” on March 22 and April 12, 2019 and that had been “obtained through MLAT to the United States of America” (apparently, Instagram is a U.S. company and their records relating to the two accused in the Toronto murder were being held in the United States). Det. Price went on in the June 4 email to advise D.C. Jugpall that he had “not investigated Obregon-Castro’s logins and posts pertaining to your investigation” but that he had read an Instagram conversation between the female co-accused in the murder (Lopez-Iglesias) and another female whose Instagram name was “sofuckinfia”. Det. Price advised that the conversation “appears to implicate David Obregon-Castro as being involved in the shooting at Z-Bar … in May of 2018”. Det. Price stated that he believed “all of this is important information for your investigation”, that he had a phone number for “sofuckinfia”, that he would be “looking to identify her to speak to her as a witness”, and that it “would be valuable for you to speak to [her] as well.”
[14] As explained above in D.C. Jugpall’s subsequent email to the Crown, he re-wrote the search warrants and production orders for the cell phones and phone records in September 2019 but he now included an additional warrant for the Instagram records obtained by the Homicide Squad through MLAT processes. These various warrants and orders were all granted on September 25, 2019 and were executed by D.C. Jugpall. He was able to identify “sofuckinfia” as Sofia Casella. He also obtained a production order for her phone records on September 25, 2019. He then interviewed her on October 16, 2019. He made an audio and video record of the interview. During the interview, he made use of her phone records and her Instagram conversation with Ms. Lopez-Iglesias. Both women appear to have been involved in romantic/sexual relationships with Obregon-Castro in May 2018 and they appear to have been exchanging certain intimate photographs. In one significant message, “sofuckinfia” appears to describe the shooting at the Z-Bar, stating that she was present “inside the bar” when “he left me … did some shit on the side” and some “guy I was with got shot”. She also stated in the Instagram message that she met up afterwards with the person under discussion (apparently Obregon-Castro). In the police interview, Sofia Casella stated that she had been at the Z-Bar with Obregon-Castro on the night of the shooting and that he “showed her a gun” when they met afterwards.
[15] It appears that D.C. Jugpall did not provide this significant new evidence to the Crown until December 20, 2019. As a result, it was not disclosed to the defence until January 8, 2020. There is no explanation in the record before me as to why it took D.C. Jugpall two months, from October 16, 2019 to December 20, 2019, to provide this new evidence to the Crown. It should be noted that Ms. Page, who was acting for Obregon-Castro on both the murder charge and the charges relating to the Z-Bar shooting, had been provided with disclosure of the MLAT request for assistance to the American authorities, the Instagram messages, and the cell phone records in the course of the Toronto murder prosecution. However, their significance to the Z-Bar shooting was not entirely apparent until the audio record of Ms. Casella’s October 16, 2019 police interview was disclosed on January 8, 2020. At this point, the April 6, 2020 trial date was three months away.
[16] On February 25, 2020, Ms. Page wrote to the Crown. She advised that she had now had time to review the new disclosure relating to Sofia Casella. She then stated the following:
It is my position that the further investigation into Ms. Casella as a Crown witness at Mr. Obregon-Castro’s upcoming trial is derivative evidence that flows from Ms. Lopez-Iglesias’ Instagram account – an account in which my client has a privacy interest.
If the Crown seeks to call Ms. Casella as a Crown witness at Mr. Obregon Castro’s upcoming trial, or introduce as evidence the Instagram messages exchanged between Ms. Casella and Ms. Lopez-Iglesias, I must have sufficient disclosure to assess whether the police were lawfully in possession of the messages found in Ms. Lopez-Iglesias’ Instagram account.
I have not been provided with the Judicial Authorization that ordered the production of this Instagram Account.
Accordingly, I am requesting a copy of the MLAT authorization (U.S. Production Order). I am also requesting all emails, notes and correspondence between the officer who arranged for the authorization (presumably Officer Brandon Price) and anyone who participated in this process, whether Canadian or US authorities.
A foreign Order issued in the US must be issued in compliance with Canadian domestic law . Without the U.S. Production Order, it is my position that the Instagram messages found in Ms. Lopez-Iglesias’ account, and derivative evidence (Ms. Casella’s police statement) were obtained in a manner which violates s.8 of the Charter .
This Charter issue will need to be litigated prior to Mr. Obregon Castro’s trial, and will likely necessitate an adjournment of the April 6 th trial dates.
Please let me know your position on whether you seek to call Ms. Casella’s testimony at the trial. If so, please let me know how you would like to handle the Charter motion, and related disclosure [Emphasis added].
[17] It can be seen that Ms. Page was both seeking further disclosure relating to the MLAT processes (in particular, “the U.S. Production Order”) and she was giving notice of a s. 8 Charter Motion that would “likely necessitate an adjournment of the April 6 th trial dates.” On March 2, 2020, five days after Ms. Page’s letter, the Crown disclosed the various Canadian search warrants, production orders, and supporting information to obtain that were issued and executed on September 25, 2019. On March 6, 2020, the parties scheduled a defence Motion seeking to adjourn the trial. It was scheduled into Justice Corrick’s calendar because she had been conducting an ongoing Judicial Pre-Trial in the case and was familiar with the matter. Also on March 6. 2020, the Crown sent Ms. Page an email stating:
… the Crown’s position is that at this stage, it is the Crown’s intention to call Sofia Casella, at the upcoming trial set to commence on April 6, 2020. If needed, Crown may have to revisit its position, subject to the decision made by Justice Corrick [Emphasis added].
[18] The above email from the Crown was in response to Ms. Page’s repeated statements that the s. 8 Charter Motion and the adjournment Motion would only be necessary if the Crown intended to call the new witness (Ms. Casella) at the April 6, 2020 trial. For example, during a February 28, 2020 appearance in Court Ms. Page had stated:
… if the Crown seeks to call the evidence of this new witness which has been discovered in the intervening time by the name of Sofia Casella, then this will necessitate me bringing a section 8 Charter motion and potentially adjourning the trial of April 6 th or, alternatively, using that time to do the Charter challenge and then adjourning the trial afterwards.
But if the Crown is not seeking to call at Mr. Obregon-Castro’s trial Sofia Casella then we just need that to be confirmed on the record and we don’t need to spend this extra time doing the section 8 Charter challenge.
I understand from speaking with Ms. Malik [Crown counsel] this morning that she intends to have a meeting this afternoon with the officer-in-charge and Mr. Cruess, the Crown which was previously assigned to this case, to discuss this issue of Ms. Casella, and Ms. Malik has offered that I also be able to have some input into this conversation. So I think at the end of the day we will know in a week from now whether or not the section 8 and the adjournment is going to go forward or whether or not we’re just going to proceed directly to the trial [Emphasis added].
[19] Ms. Page filed a Notice of Application for Adjournment on March 10, 2019. It set out the grounds for the requested adjournment as follows:
Since the trial dates were set, the Crown has disclosed further materials that relate to a new Crown witness, Sofia Casella. The investigation into Ms. Casella originates from messages found by the Toronto Police Service in Instagram records belonging to Sarai Lopez-Iglesias.
The Instagram records were obtained by the Crown through the Mutual Legal Assistance Treaty and the U.S. Department of Justice, since Instagram is an American company.
The Applicant has requested but has not received from the Crown a copy of the U.S. judicial authorization or any correspondence between the Toronto Police Service and the U.S. authorities to explain how they were able to obtain the records.
Without this judicial authorization, it is the Applicant’s position that the search of Ms. Lopez-Iglesias’ Instagram records is a warrantless search and violates s.8 of the Charter . The Applicant intends to argue that the proposed viva voce testimony of Ms. Casella should be disallowed at Mr. Obregon Castro’s trial, pursuant to sections 24(1) and 24(2) of the Charter , since the information she has provided to the police derives from the s.8 Charter breach.
The 3-week period allotted for the Applicant’s trial beginning April 6, 2020 does not allow time to argue this additional s.8 Charter motion.
Further, counsel for the Applicant does not have sufficient time to prepare to argue the s.8 Charter motion by April 6, 2020.
Accordingly, an adjournment of the trial dates is required [Emphasis added].
[20] The Application seeking an adjournment was heard by Corrick J. on Thursday, March 12, 2020. Ms. Page set out her three reasons for the requested adjournment: insufficient time to prepare the s. 8 Motion; insufficient time scheduled at trial for this new pre-trial Motion; and lack of disclosure of the “American production order” that had been “signed by the judge,” as well as any related “correspondence between the American DOJ and the Canadian authorities.” In terms of this latter request, disclosure had been made of “two letters from the U.S. Department of Justice indicating that a U.S. Court issued a Production Order for Instagram, that they received the materials, and that they are forwarding the materials to the Canadian Department of Justice.”
[21] In response, the Crown took the position that there was “more than ample time … to prepare and marshal a s. 8 application” and that s. 11(b) Charter delay concerns could result if the adjournment was granted. The Crown stated the following in relation to these s. 11(b) Charter considerations:
And in terms of ultimately determining, you know, if there is a potential s. 11(b) issue, I don’t know. There could be. We don’t know what the other dates are. I think Your Honour needs all that information in order to be able to make a full and informed decision ultimately .
And also, based on Your Honour’s ruling as to what Your Honour determines on this application, there -- as I say, there are consequences that flow certainly for the Crown, and the Crown will have to make certain decisions thereafter as well . So that is additional information I would respectfully submit, that is missing at this juncture also.
…we are at 22 months, I don’t know in terms of the -- but I am just indicating when we’re looking at Jordan guidelines we are about eight months away as of the trial date, so I don’t know when the other trial dates are available to the court. So Your Honour has to consider that as well, on this adjournment application if there is a potential peril of a stay application, and because the charges before the court are serious, extremely serious and there’s certainly a public interest in having this case adjudicated on merits . So to that end when your Honour’s considering ultimately the adjournment application, that is a factor to be considered. [Emphasis added].
[22] Defence counsel, Ms. Page, acknowledged the looming s. 11(b) Charter issue in the event of an adjournment, and stated the following:
The only other comment I wanted to make relates to the delay, and obviously this, you know, could be the subject of an 11(b) application at some later date, I don’t disagree with my friend . But in deciding whether the adjournment application ought to be granted, 11(b) ought not to really play into it. It is up to the Crown Attorney to exercise its discretion to decide whether or not they think Ms. Casella’s evidence is worth, important enough, to -- to adjourn the trial .
So ultimately, it is up to my friend to decide whether or not they think it’s worth it to risk the 11(b) argument, but they have the discretion not to make a decision to proceed by calling Ms. Casella, because by making that decision the trial can proceed on April the 6 th . [Emphasis added].
[23] After hearing the above submissions, Corrick J. twice stated that she would grant the adjournment “to permit the defence to make this [s. 8] argument.” She took the view that “I don’t think anybody can be faulted along the way for not having been diligent.” She also noted that “this is an application for adjournment by the defence for a [s. 8] application to be made by the defence … that is certainly a very critical factor when anybody is considering a s. 11(b) [motion to stay proceedings].”
[24] At this point, Crown counsel interjected and repeated her concern about s. 11(b) of the Charter and the need to determine what new trial dates were available, if the April 6 th , 2020 trial date was to be adjourned. She expressly asked Corrick J. not to “vacate the date” presently set for trial because “the Crown may have to revisit its decision” about calling the new witness Sofia Casella. At this point, Ms. Page interceded in order to “make a suggestion”. She proposed that she and the Crown attend at the Trial Coordinator’s Office in order to see what new trial dates were available, that the indictment could be remanded for a few days, and that the Crown “can take an opportunity to consider when the next trial date would possibly happen. We can either hold it until tomorrow or Monday … to make the final determination and then either we will take the new trial date or we will confirm the April 6 th ” [Emphasis added]. Both the Crown and Corrick J. agreed with Ms. Page’s proposal. She then asked Corrick J. to remain seized with the matter. Corrick J. agreed and remanded the Indictment to return before her on March 16, 2020. She stated: “the note that I am going to make on the Indictment is confirm adjournment or trial date .” [Emphasis added]. She did not vacate the April 6, 2020 trial date.
[25] Later that same day, in the afternoon of March 12, 2020, there was an exchange of emails between the Crown and Ms. Page about the next available dates, if the trial was adjourned. The Crown advised that she had obtained the dates of August 31 to September 28, 2020 for what would now be a four week jury trial (this somewhat lengthier trial period was due to the addition of the evidence of Ms. Casella and the s. 8 Charter Motion to what had previously been a three week trial). It is significant that these proposed trial dates would keep the case under the 30 month Jordan “presumptive ceiling” because the trial would conclude on September 28, 2020, which would mean that there had been 28 months of total delay (and there would be a deduction of about one and a half months of “defence delay”, as will be discussed below). Ms. Page replied that she was not available on the proposed dates and that her “next availability in terms of a 4-5 week trial, that would start January 2021.” Ms. Page’s proposal was that the four week jury trial start on January 4, 2021 and end in late January 2021. This would exceed the Jordan “presumptive ceiling”. In this regard, she stated that she would be bringing a s. 11(b) Charter Motion: “I intend to bring such a motion … the Jordan date is not definitive, since the delay has been caused by the Crown.”
[26] On the early evening of Thursday, March 12, 2020, shortly after the above events, an email from the Chief Justice’s Office was sent to all the Regional Senior Judges, with directions to send it on to the judges of the Court. It was forwarded to the Toronto judges that evening. It advised that “Chief Justice Morawetz has suspended jury panels in all SCJ locations for upcoming civil and criminal jury trials” due to the Covid-19 pandemic. The World Health Organization had announced on March 11, 2020 that “the alarming levels of spread and severity [of Covid-19] and … alarming levels of inaction” had led it to declare a “pandemic”. The above March 12, 2020 email to the judges attached the Chief Justice’s Notice to the Public and the Profession suspending all new jury trials. The email stated that the Notice would be “posted on the SCJ website tomorrow”. The Notice itself is dated March 13, 2020, although the judiciary received it on the evening of March 12, 2020. It set out detailed instructions for anyone attending at Court Houses of the Superior Court of Justice. In particular, it cancelled all “jury panels for upcoming civil and criminal trials” and directed anyone who had received a summons for jury duty not to attend at the Court Houses. Only jury trials that were already under way would be allowed to continue.
[27] The parties to the present case would obviously not have received the email from the Chief Justice’s Office that was sent to the judges on the evening of March 12, 2020. I mention it only because it helps to explain what happened in this case on the next day, Friday, March 13, 2020. The parties agree that all new jury trials in Ontario were suspended on March 13, 2020. The parties also agree that McMahon J. sent out instructions early on March 13, 2020 directing that “all cases currently set for a jury trial” were to attend before him by telephone for a JPT in order to advise whether there would be a re-election to trial by judge alone. These developments on the morning of March 13, 2020 led to an exchange of nine emails between the Crown and the defence on that same day.
[28] The first of these March 13 emails was from the Crown and it stated: “ If the Crown decides to proceed to trial on April 6, 2020 , we need to know if you are able to confirm that the trial will be judge alone?” The Crown went on to refer to the instructions sent out that morning by McMahon J. In a further email, the Crown advised: “ if we need to proceed on April 6 , the Crown will be ready. However, the trial can proceed only if it is a judge alone trial – not if it is anticipated to be a jury trial.” Ms. Page was in another court that day but she responded during a recess stating: “If it’s a judge we both agree on, I can re-elect judge alone .” The Crown replied: “Crown is fine with any judge that is to be assigned to the trial.” It appears that Ms. Page had not yet seen the instructions from McMahon J. about scheduling a JPT in order to discuss re-elections. She questioned “why you have to know that it’s a judge alone trial immediately”. She also advised that she would “have to get instructions from my client before I can change the re-election … I can try to get instructions ASAP. I can do a JPT by phone next week .” She concluded this exchange of emails by asking: “ Are you willing to run the trial April 6 without calling Ms. Casella ?” She also suggested that they schedule McMahon J.’s requested JPT for March 23, 2020 and that same day she would “meet with him [Obregon-Castro] in the cells and try to get instructions ” to re-elect trial by judge alone [Emphasis added].
[29] The above developments on March 13, 2020 were on a Friday. Over the weekend, the Chief Justice deliberated with RSJ Council and then issued a further more restrictive Order on the evening of Sunday, March 15, 2020. It directed that “any accused person who has a criminal matter scheduled for any type of appearance in any court in Ontario in the Superior Court of Justice between March 17, 2020 and June 2, 2020, that matter is adjourned, unless the court orders otherwise.” Matters scheduled for trial in April 2020, like the present case, were adjourned until June 3, 2020. A bench warrant with discretion was issued “as of the date the person is scheduled to appear.” An email from the Chief Justice’s Office to the Regional Senior Judges on the evening of March 15, 2020, and circulated to the judiciary on the morning of March 16, 2020, advised that the new Order suspending all proceedings was made “in these extraordinary circumstances, in the exercise of the Chief Justice’s authority over Court scheduling (s. 14 of the Courts of Justice Act ).”
[30] The next day, Monday March 16, 2020, the present case was back before Corrick J. in order to complete the adjournment Motion that she had heard on March 12, 2020. The Crown stated that “the instructions everybody received last week are different than the instructions today”, apparently referring to the fact that only jury trials had been suspended on March 13, 2020 but that all trials were now suspended as a result of the March 15, 2020 Order. Corrick J. agreed with this observation. The Crown then stated: “So I think we are stuck with going over to June 2 nd with a discretionary bench warrant.” Corrick J. again agreed. She then inquired as to whether the Crown and the defence were able “to get a new date” for trial when they attended at the Trial Coordinator’s Office on March 12, 2020. The Crown stated: “ The last discussions were that the Crown would be willing to proceed on April 6 th for trial. And we were going to schedule a judicial pre-trial to discuss things for next week.” Corrick J. concluded this brief appearance by stating: “So I’m going to put this over to June 2 nd . And with a bench warrant discretion. And I’m making a note that the matter is adjourned due to Covid-19 … as we’ve been instructed to do .” Ms. Page never did seek instructions to re-elect trial by judge alone, in light of these developments on March 15, 2020 suspending all proceedings. The Crown’s email sent out after this March 16, 2020 appearance before Corrick J. confirmed the following: “ As per the direction of Chief Justice Morawetz , Mr. Obregon-Castro’s matter was adjourned to June 2, 2020 TBST” [Emphasis added].
[31] On June 2, 2020, a new trial date was set for March 8, 2021. This trial date was eventually vacated and another new trial date of November 29, 2021 was set. I do not intend to go into any detail about this further scheduling and further adjournment. There is no dispute that these further delays were the result of the Covid-19 pandemic, which has presently led to the cancelling of all jury trials until “May 3, 2021 at the earliest”, according to the Chief Justice’s most recent January 13, 2021 Notice to the Profession and Public. In addition, Obregon-Castro’s murder Indictment, which is also set for a jury trial in this Court, has complicated the scheduling of the present matter. There is no dispute that new jury trials have not been held in Toronto since the Chief Justice’s first Notice dated March 13, 2020, with one brief exception in September 2020 when the pandemic appeared to be abating and a small number of jury trials were held at the Court House in re-modeled court rooms. The Court has continued to conduct judge alone proceedings, many of them in the form of virtual hearings over Zoom.
[32] I have referred to two emails in the above chronology that were sent to the judiciary by the Chief Justice’s Office and that were not part of the record on the s. 11(b) Motion. They do not change the agreed facts about these events but the quotes that I have set out simply add some minor clarifying background detail. I am satisfied that the Court can take judicial notice of its own records, emanating from the Chief Justice’s Office and concerning its management of the Covid-19 pandemic. In my view, these records are analogous to certificates, documents, or letters obtained by the courts from the executive branch as the basis for taking judicial notice of “official matters” or “official acts”. See: R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 at paras. 48-9 (S.C.C.); R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 48-69 (S.C.C.); R. v. Perkins (2007), 2007 ONCA 585, 223 C.C.C. (3d) 289 at paras. 34-42 (Ont. C.A.); Sopinka et al, The Law of Evidence in Canada , 4 th . Ed. (Lexis Nexis 2014), at p. 1324; Schiff, Evidence in the Litigation Process , 3 rd Ed. (Carswell 1988), at pp. 722-6.
C. Analysis
(i) Deductions for “defence delay”
[33] The parties agree, as noted previously, that the total delay in this case is 43 months. The parties also agree that there were two brief periods of “defence delay” totalling 22 days (delay in scheduling the first JPT in this Court and delay in scheduling the first trial date, already referred to above). There is a third period of potential “defence delay” where the parties are not agreed. It totals 27 days and it involves defence counsel allegedly not being available for a JPT in the Ontario Court of Justice on September 13 and 14, 2018, when the Crown and the Court were available. As a result, the JPT was held on October 10, 2018. Ms. Page asks me to infer that the real cause of this short period of delay was ongoing disclosure delays. However, on my reading of the record, it was clearly stated that the reason for the delay was that “counsel was unavailable”. As a result, the total “defence delay” deduction is 49 days (or one and one half months). The resulting “net delay” of forty-one and a half months is still well over the Jordan “presumptive ceiling” of 30 months.
(ii) The cause of the adjournment of the first trial date
[34] The main issue in dispute between the parties is purely factual, namely, determining the cause of the adjournment of the first trial date (scheduled for April 6, 2020). The Applicant submits that the trial date was effectively adjourned by Corrick J. on March 12, 2020 and that the cause of the adjournment was unacceptable delay by the police and Crown in disclosing the new witness Sofia Casella. As a result, delay caused by this adjournment does not amount to an “exceptional circumstance” and cannot be deducted from the “net delay” of forty-one and a half months.
[35] The Crown, on the other hand, submits that Corrick J. never adjourned the first trial date on March 12, 2020. Instead, she allowed the parties a few days to consider three things: first, the dates that would be available for an adjourned trial; second, any s. 11(b) Charter risks that could arise from adjourning to these available dates; and third, whether the new witness Sofia Casella should be called, in light of these potential s. 11(b) risks, as opposed to proceeding to trial on April 6, 2020 without calling Ms. Casella. While the Crown was considering these matters, the Covid-19 pandemic intervened. All jury trials were suspended on March 13, 2020, all trials were suspended on March 15, 2020, and Corrick J. adjourned trial on March 16, “due to Covid-19 … as we’ve been instructed to do.” As a result, the Crown submits that this particular delay was due to an “exceptional circumstance” that must be deducted from the forty-one and half months “net delay”.
[36] In my view, this factual dispute is not difficult to resolve. The record filed before me supports the Crown’s position. In particular, I rely on the following six circumstances:
First, Ms. Page concedes that her s. 8 Charter Motion and her Motion to adjourn the trial were always subject to the Crown deciding not to call the new witness Casella. Ms. Page repeatedly put this position on the record. If the Crown elected not to call Casella at trial, there would be no s. 8 Motion and no basis for an adjournment. The trial would then proceed on April 6, 2020 as scheduled. Ms. Page always left this option open to the Crown, both before and after the March 12, 2020 adjournment Motion before Corrick J. The new witness Casella was damaging to the Applicant Obregon-Castro and it was very much in his interests to try to secure the Crown’s agreement not to call this witness at trial;
Second, the Transcript of the March 12, 2020 proceedings before Corrick J. makes it clear that she never made a final decision that day about the adjournment Motion. After hearing argument, she twice stated that she would grant the adjournment in order to allow time for the s. 8 Charter Motion. However, both the Crown and Ms. Page intervened and asked Corrick J. not to make “the final determination” until they had attended at the Trial Coordinators’ Office, obtained available dates for an adjourned trial, and determined whether there was “a concern about s. 11(b)” and whether the Crown would “revisit its decision” to call the new witness Casella, as both counsel put it. After taking these steps and considering these factors, “then either we will take the new trial date or we will confirm the April 6 th [trial date]”, as Ms. Page put it. Corrick J. agreed with this joint “suggestion” from Crown and defence, she remained seized with the adjournment Motion, and she remanded it to March 16, 2020. She noted on the Indictment that this next appearance was to “confirm adjournment or trial date .” At the Crown’s request, supported by the defence, Corrick J. never vacated the April 6, 2020 trial date [Emphasis added];
Third, the Crown was able to obtain new trial dates (August 31 to September 28, 2020) that would keep the case under the 30 month Jordan “presumptive ceiling”. However, Ms. Page was not available on these dates. Her earliest available date for an adjourned trial (January 4, 2021) would result in total delay that was over the “presumptive ceiling”. In this regard, Ms. Page stated in her March 12, 2020 email that, “I intend to bring such a [s. 11(b)] motion” due to Crown delays that caused the adjournment. In other words, there was a live threat of s. 11(b) Charter consequences, depending on how the cause of the adjournment was assessed by a judge on a subsequent s. 11(b) Motion and depending on how any “defence delay” deductions were assessed;
Fourth, the exchange of nine emails on the next day, March 13, 2020, all tend to infer that the Crown had decided not to call Ms. Casella and wished to proceed to trial on April 6, 2020, as scheduled. The parties agree that all new jury trials were suspended on March 13, 2020 by the Chief Justice’s Notice to the Public and to the Profession. As a result, the only way that the trial could proceed on April 6, 2020 would be if the Applicant Obregon-Castro re-elected trial by judge alone and if the Crown decided not to call Ms. Casella. Otherwise, the April 6, 2020 trial date would inevitably have to be adjourned (either due to the Chief Justice’s Order, if Obregon-Castro refused to re-elect, or due to Corrick J.’s twice-repeated statement that she would adjourn the trial to permit a s. 8 Charter Motion if the Crown decided to call the new witness Casella). The fact that the Crown and defence exchanged nine emails on March 13, 2020, all summarized above, discussing the steps they could take in order to proceed to trial on April 6, 2020, strongly infers that neither counsel believed that Corrick J. had already adjourned the trial on the previous day. Indeed, in one of the last emails exchanged on March 13, 2020, Ms. Page asked the Crown, “Are you willing to run the trial April 6 without calling Ms. Casella?” In other words, Ms. Page understood that the trial had not yet been adjourned and that it could proceed on April 6, 2020, if Obregon-Castro re-elected and if the Crown decided not to call Ms. Casella;
Fifth, on March 15, 2020 the Chief Justice issued an Order suspending all trials at the Court House, whether by judge and jury or by judge alone. When the adjournment Motion resumed before Corrick J. on March 16, 2020, she inquired as to whether counsel were “able to get a new date.” The Crown advised that the “last discussions were that the Crown would be willing to proceed on April 6 th for trial.” Corrick J. then adjourned the trial to June 2, 2020 “due to Covid-19 … as we’ve been instructed to do.” This exchange between the Court and the Crown infers that the Crown had decided not to call the new witness Casella, in order to preserve the April 6, 2020 trial date. It also infers that Corrick J. had not already adjourned the trial four days earlier, on March 12, 2020; and
Sixth, Ms. Page advises that her agreement with the Crown to attend a JPT before McMahon J. on March 23, 2020 and to “meet with him [Obregon-Castro] in the cells and try to get instructions [to re-elect]” was overtaken by the Chief Justice’s Order dated March 15, 2020 suspending all proceedings at the Court House. As a result, the JPT never proceeded and she never sought instructions from her client to re-elect. However, the fact that she was planning to attend a JPT before McMahon J. on March 23, 2020, in order to discuss re-electing and proceeding to trial on April 6, 2020, infers that the trial had not been adjourned by Corrick J. on March 12, 2020 and that the Crown was willing to proceed without calling Ms. Casella (assuming Ms. Page could obtain instructions to re-elect).
[37] Weighing the above six circumstances together, in their totality, they all infer that the trial was not adjourned by Corrick J. on March 12, 2020 and that the Crown had decided not to call Ms. Casella, in order to maintain the April 6, 2020 trial date and not take any s. 11(b) Charter risks with the prosecution. As a result, I am satisfied that this first trial date was adjourned due to the Covid-19 pandemic.
(iii) Deductions for “exceptional circumstances”
[38] The parties agree that the Covid-19 pandemic is an “exceptional circumstance”, as that legal term is defined in R. v. Jordan, 2016 SCC 27, supra at paras. 69-74. It was “reasonably unforeseen or reasonably unavoidable” and the Crown “cannot reasonably remedy the delays emanating from those circumstances once they arise.” The examples given by the Court in Jordan of “discrete events” that might qualify as an “exceptional circumstance” pale in comparison to the Covid-19 pandemic, which led the Premier of Ontario to declare a state of “emergency” on March 17, 2020 due to “a danger of major proportions.” Under that state of “emergency”, all non-essential businesses were closed. More importantly, in terms of how the courts responded, all large gatherings were prohibited. Judges of this Court have previously decided that the Covid-19 pandemic is an “exceptional circumstance”. See R. v. Drummond, 2020 ONSC 5495 at para. 76 per Cavanagh J.; R. v. Gutierrez, 2020 ONSC 6810 at para. 19 per Byrne J.; R. v. Simmons, 2020 ONSC 7209 at paras. 59-60 per Nakatsuru J. These decisions should be followed by a judge of coordinate jurisdiction, for reasons of judicial comity, as explained by Strathy J. (as he then was) in R. v. Scarlett, 2013 ONSC 562 at paras. 43-4.
[39] The only point I would add about the above characterization of the Covid-19 pandemic as an “exceptional circumstance”, and about its impact on s. 11(b) Charter rights, is to note that the Supreme Court identified “epidemics” as one of the very few “exceptional conditions” that could justify placing s. 1 reasonable limits on s. 7 Charter rights in its seminal decision, Reference Re s. 94(2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 at 313 (S.C.C.). Lamer J., as he then was, gave the main judgement on behalf of five members of the Court. The two concurring judgements of McIntyre J. and Wilson J. do not appear to disagree with Lamer J. on this s. 1 point where he stated:
Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like [Emphasis added].
[40] Lamer J. also stated in Reference Re s. 94(2) of the Motor Vehicle Act, supra at 309, that s. 11(b) of the Charter (together with the other rights found is ss. 8 to 14 of the Charter ) are all “illustrative” of certain “specific deprivations” of s. 7 Charter rights:
The term “principles of fundamental justice” is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.
Sections 8 to 14 address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of “principles of fundamental justice” ; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter , as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.
Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system [Emphasis added].
[41] Depending on how long the pandemic continues, and the extent to which the Court and the Crown are able to mitigate its effects on s. 11(b) Charter rights, particularly in the context of the s. 11(f) Charter right to trial by jury, there may come a time when s. 1 reasonable limits need to be considered. The s. 11(b) deduction for “exceptional circumstances” is not endlessly elastic. As the majority put it in R. v. Jordan, 2016 SCC 27, supra at paras. 70 and 75, once an “exceptional circumstance” exists the Crown “must also show that it took reasonable available steps to avoid and address the problem … in an attempt to avoid the delay … Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system.”
[42] I am satisfied that the entire period of delay from April 6, 2020 (when the first trial date was adjourned) until December 24, 2021 (when the third scheduled trial is expected to end), should be deducted from the forty-one and a half month period of “net delay”, due to the Covid-19 pandemic “exceptional circumstance”. This period of just over 20 months reduces the “net delay” to approximately twenty-one and a half months. This is well below the Jordan “presumptive ceiling”.
[43] I should note that even if I had accepted Ms. Page’s main argument, that the April 6, 2020 trial date was effectively adjourned by Corrick J. on March 12, 2020 due to unacceptable Crown and police delays in disclosing the evidence of the new witness Casella, the “net delay” in the case would still be below the 30 month Jordan “presumptive ceiling”. It will be recalled that the Crown and the Court were available and ready to schedule an adjourned four week jury trial from August 31 to September 28, 2020. However, Ms. Page was not available until January 4, 2021. In other words, the “total delay” until January 4, 2021 would have been just over 31 months. The one and a half months of “defence delay” prior to the adjournment of the first trial date, already discussed above, would now have to be increased by just over three months of further “defence delay” due to Ms. Page’s unavailability (from September 28, 2020 until January 4, 2021). As a result, the “defence delay” would have become just over four and a half months. When deducted from “total delay” of just over 31 months, the result would have been “net delay” of 26 and a half months. See: R. v. Mallozzi, supra. Ms. Page concedes that the trial could not have proceeded on January 4, 2021 as a jury trial, due to the Covid-19 pandemic, and so the rest of the delay until December 24, 2021 would have to be deducted as an “exceptional circumstance”. It can be seen that even if Ms. Page’s main argument had succeeded, the burden would still have been on the Applicant to establish that “net delay” below 30 months was, nevertheless, unreasonable.
(iv) Delay below the 30 month “presumptive ceiling”
[44] Turning to Ms. Page’s alternative argument, she submits that “net delay” below 30 months violates s. 11(b) of the Charter in the particular circumstances of this case. The now well known Jordan test for establishing the unreasonableness of “net delay” below the “presumptive ceiling” has two requirements: first, that the defence took “meaningful steps that demonstrate a sustained effort to expedite the proceedings”; and second, that “the case took markedly longer than it reasonably should have”. The Court stated that it would only be in “clear cases” that this two part test could be met. See: R. v. Jordan, 2016 SCC 27, supra at paras. 82-3.
[45] I have some doubts as to whether the Applicant can satisfy the first part of the above test. There has undoubtedly been some minor “defence delay” in this case, as already summarized above. More importantly, I have concerns about Ms. Page’s response to the Crown’s significant efforts on March 12, 2020 to obtain reasonably timely dates from the Trial Coordinator’s Office (August 31 to September 28, 2020), if the jury trial was to be adjourned. Not only was Ms. Page unavailable until early in 2021 but she stated that “the Jordan date is not definitive, since the delay has been caused by the Crown”. This attitude does not appear to accord with the new “shift in culture” that “encourages the defence to be part of the solution”, as the majority put it in R. v. Jordan, 2016 SCC 27, supra at paras. 85-6 and 112-113.
[46] Even more significantly, I have real concerns about the proposed s. 8 Charter Motion, seeking to review the U.S. production order which led to seizure of the Instagram records. Ms. Page asserted in her February 25, 2020 letter to the Crown that: “A foreign Order issued in the U.S. must be issued in compliance with Canadian domestic law.” This initial premise underlying the s. 8 Charter Motion is, at best, doubtful. See: R. v. Terry (1996), 106 C.C.C. (3d) 508 (S.C.C.); Schreiber v. Canada (1998), 124 C.C.C. (3d) 129 (S.C.C.); R. v. Hape (2007), 2007 SCC 26, 220 C.C.C. (3d) 161 (S.C.C.). The Notice of Application seeking an adjournment on March 12, 2020 went on to assert that the Applicant had requested but not received disclosure of the “U.S. judicial authorization” and that “Without this judicial authorization, it is the Applicant’s position that the search of [the] Instagram records is a warrantless search and violates s. 8 of the Charter .” This further premise underlying the s. 8 Charter Motion is also, at best, doubtful. The U.S. production order (which is a judicial warrant) appears to have been sealed by the U.S. Court, it does not appear to be in the possession of the prosecuting Crown, and Ms. Page does not appear to have made any effort to bring a Disclosure Motion or Third Party Records Motion, in order to seek the assistance of this Court in trying to obtain the U.S. Order. From its earliest days, the law of disclosure has allowed the defence to seek judicial review of the Crown’s disclosure decisions “at the earliest opportunity” and the failure to do so is a well known cause of delay. In addition, the law of disclosure is clear that “Crown entities other than the prosecuting Crown are third parties under the O’Connor production regime.” See: R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 at 12 (S.C.C.); R. v. McNeil (2009), 2009 SCC 3, 238 C.C.C. (3d) 353 at paras. 13, 22, and 48-51 (S.C.C.); LeSage and Code, Report of the Review of Large and Complex Criminal Case Procedures , Queen’s Printer for Ontario 2008, at pp. 49-51. For all these reasons, the s. 8 Charter Motion and its related disclosure issues have not been pursued diligently. In addition, the merits of the s. 8 Charter Motion are open to real question.
[47] Weighed against the above negative considerations, Ms. Page undoubtedly acted responsibly and diligently in scheduling the JPT and preliminary inquiry at an early date, and then proceeding with the preliminary inquiry, in spite of difficulties with timely disclosure. This is in accordance with the s. 11(b) Charter case law and with sound practise, especially when her client was in custody. See: R. v. Gandhi, 2016 ONSC 5612 at paras. 30-35 and the authorities cited therein.
[48] In the result, the record before me is evenly balanced in terms of the first part of the Jordan test for delay below the 30 month “presumptive ceiling”. I need not decide whether the Applicant has met his burden in relation to this first requirement – “sustained effort to expedite the proceedings.” I am satisfied that the second requirement has not been met – “the case took markedly longer than it reasonably should have”. This was a very serious case and it involved some reasonable degree of complexity. It required a four day preliminary inquiry and a three or four week trial, it generated a considerable number of pre-trial motions, and it became more complex once the Toronto Homicide Squad obtained the Instagram records from the United States through MLAT processes. If the Covid-19 pandemic had not intervened, the case would have proceeded to trial on April 6 and would have concluded on April 28, 2020. At this point, there would have been 23 months of total delay and twenty-one and a half months of “net delay” This is simply not “markedly longer” than is reasonable for such a serious and relatively complex case to come to trial in this Court, after a preliminary inquiry held in the Ontario Court of Justice.
[49] As noted above, the Applicant’s real complaint about the proceedings, as of the March and April 2020 stage when the Covid-19 pandemic emerged as the real cause of delay, is not that there had been trial delay but that there had been disclosure delay. However, if the Covid-19 pandemic had not overtaken the case, the trial would have proceeded on April 6, 2020 (without the new witness Casella) and any delays in disclosure would not have caused delays in the trial. In light of my rejection of Ms. Page’s main argument about the cause of the March 16, 2020 adjournment, delays in disclosure simply did not cause any trial delays.
[50] I should nevertheless note that the Applicant’s two main examples of alleged police and Crown “negligence”, that are said to be “oppressive” and to “tarnish the integrity of the court” to such an extent that the case should not be allowed to proceed, have simply not been made out on the record before me. The first example concerns D.C. Jugpall’s admitted mishandling of the USB thumb drive on which he had downloaded the Z-Bar video surveillance evidence. This failing on the officer’s part had the effect of prejudicing the Crown’s case . The misplaced video surveillance evidence was damaging to the Applicant and the fact that D.C. Jugpall appeared to have lost it, up until he finally recovered it due to defence counsel’s persistence at the preliminary inquiry, does not infer that the officer was somehow acting contrary to the Applicant’s interests . The second example concerns the unexplained two month delay (from October 16 to December 20, 2019) in providing the recorded police interview of Sofia Casella to the Crown. D.C. Jugpall was not called to testify on the s. 11(b) Charter Motion before me. As a result, I do not have his explanation, if any, for this period of disclosure delay. There are certain well-recognized justifications for delaying disclosure, such as “completion of the investigation” and “concerns for the security or safety of witnesses”. See: R. v Stinchcombe, supra at 11-12. I simply do not know whether there is or is not a valid explanation for this delay in providing disclosure.
[51] In the result, the Applicant has not met his burden of establishing that the delay below the 30 month Jordan “presumptive ceiling” was unreasonable.
D. Conclusion
[52] For all the above reasons, the s. 11(b) Charter Motion is dismissed.
M.A. Code J.
Released: February 10, 2021
