R. v. Carter, 2021 ONSC 6632

COURT FILE NO.: CR-17-00001060-00AP

DATE: 05102021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CAMERON CARTER

Appellant

Greg Elder, for the Respondent Crown

Leo Kinahan, for the Appellant

HEARD: August 20, 2021

REASONS FOR DECISION

M.L. Edwards RSJ:

Overview

1Mr. Carter appeals the decision of the trial judge denying his application to stay his charges pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”).

The Facts

2Mr. Carter was charged with Over 80 and Impaired Operation contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. Mr. Carter was convicted of Over 80 on August 22, 2019. Subsequent to the conviction, Mr. Carter brought an application for a stay of proceedings based on an 11(b) application. The trial judge dismissed the 11(b) application on December 11, 2019.

3Mr. Carter was charged on January 22, 2017 and released with a first appearance date of February 16, 2017.

4There are five distinct periods of delay that were material to the decision of the trial judge Those periods of delay were as follows:

a) May 29, 2017 to July 26, 2017 (39 days), which were excluded due to defence delay in conducting a criminal pre-trial and the setting of trial dates;

b) March 5, 2018 to September 19, 2018, which was incorrectly calculated by The trial judge as 185 days and in fact amounts to 199 days, which was excluded due to defence delay regarding outstanding disclosure;

c) September 19, 2018 to June 3, 2019 (259 days), which were excluded due to an explicit 11(b) waiver by Mr. Carter (I will refer to this period of delay as the disclosure delay);

d) June 4, 2019 to July 26, 2019 (53 days), which was excluded due to a further explicit 11(b) waiver by Mr. Carter; and,

e) July 27, 2019 to August 22, 2019 (28 days), which was excluded for a reasoning delay that does not count towards the Jordan ceiling.

5For the purposes of the appeal before this court, both Mr. Carter and the Crown agree with the attribution of delay by the trial judge as it relates to the time periods set forth in subparagraphs c, d, and e above.

6Mr. Carter and the Crown are both in agreement that when the time periods set forth in subparagraphs c through e above are excluded, that the net delay is 594 days or approximately 19 months and 17 days. The focus of these reasons will deal with the disclosure delay.

7To fully understand the context for the period of delay it is important to recognize that the assigned Crown sent an email to Mr. Carter’s counsel on May 1, 2017, which amongst other things asked Mr. Carter’s counsel to advise whether or not he required any further disclosure. Unfortunately, it would appear that the Crown’s email of May 1, 2017 ended up in the junk folder of Mr. Kinahan.

8The email of May 1, 2017 is important because it was not until February 20, 2018, a matter of days prior to the date fixed for trial, that Mr. Kinahan raised with Crown counsel concerns with respect to missing disclosure; specifically, videotape evidence that would have demonstrated Mr. Carter’s physical presentation when he arrived at the police station for booking at the time of his arrest.

9The missing video surveillance footage was important disclosure. As it relates to this issue the trial judge, in her Reasons at para. 38, arrived at the following factual determination:

…Given that the defence considered the content important and the potential delays associated with addressing any deficiencies in video disclosure, Mr. Kinahan should have examined the videotapes at a much earlier point. Had he done so he could have brought the deficiency to the Crown’s attention more than 12 actual days (8 business days) in advance of the trial. Given the diligence demonstrated by the Crown throughout the proceedings, an earlier request would have been responded to in a timely manner…

10As it relates to the critical period of time between March 5, 2018 and September 19, 2018, the trial judge concluded:

In my view, in all of the circumstances, the defence was not duly diligent in reviewing disclosure at an early stage to ensure nothing was outstanding and it was for this reason that the trial could not proceed on March 5 and 6, 2018. In my view, the 185 days (6 months and 1 day) from March 5 and 6, 2018 to September 19, 2018 should be treated as defence delay.

Position of the Defence

11Counsel for Mr. Carter argues that the request by the defence for the missing video surveillance was a legitimate request that was not frivolous in nature, and as such any delay in obtaining the video surveillance should not have counted against the defence in the overall calculation of delay. Mr. Kinahan further argues that nowhere in her Reasons does The trial judge refer to the lack of diligence on the part of the Crown in ensuring that disclosure was complete. In that regard, it is argued that the Crown was in possession of the disclosure from the beginning of the proceedings, and that if the disclosure had been properly vetted to ensure that it was complete the missing videotape would have been caught prior to the disclosure to the defence and the delay now at issue would not have occurred.

Position of the Crown

12The Crown argues that the factual findings of the trial judge deserve deference, and there was no palpable or overriding error in the analysis of the trial judge as it relates to her apportionment of delay.

13As it relates to the disclosure delay, the Crown argues that this period of delay was properly attributed to the defence because the issue of the missing videotape was only raised essentially on the eve of trial.

Standard of Review

14There is no real issue between the parties that the applicable standard of review is one of correctness. The legal standard of review as it relates to the particular facts of this case, as it relates to the attribution of delay, is a question of law. As it relates to the factual findings of the trial judge, those findings are owed deference absent palpable and overriding error, while the ultimate ruling of the trial judge on such issue is one subject to review for correctness: see R. v. Shepherd, 2009 SCC 35, at para. 20; Housen v. Nikolaisen, 2002 SCC 33, at para. 37; and R. v. Tran, 2012 ONCA 18, at para. 19.

Analysis

15The facts as they relate to the issue of delay do not suggest any purposeful intent on the part of Mr. Carter or his counsel to delay these proceedings. What these facts do, however, reveal, is an unfortunate reality of any busy litigation practice.

16The Crown had made disclosure of all of the videotape evidence with the exception of one important time period, that being when Mr. Carter was brought into the police station. As the charges that Mr. Carter was facing related to his ability to drive, his physical presentation when he arrived at the police station could have been important to his defence.

17Had the videotape evidence that was disclosed by the Crown been reviewed by Mr. Carter’s counsel when it was first received, the defect in the disclosure would have become immediately apparent. For unexplained reasons, the missing videotape was not discovered by Mr. Carter’s defence counsel until what, in essence, was the eve of trial.

18While the Crown is obliged to make full disclosure to the defence, there is - in my view, a corresponding obligation on the defence to review that disclosure in a reasonably timely fashion so that any defects in the disclosure can be discussed and remedied. In that regard, the comments of the Supreme Court in R. v. Dixon 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37, are worth repeating:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

19The action or inaction on the part of Mr. Carter’s defence counsel to review the disclosure, and specifically the surveillance videotape in a timely fashion, while not intentional nonetheless amounts to inaction that resulted in delay-delay that must be attributed to the defence. As Corey J. in R. v. Cody, [2017] SCC 31, at para. 33 noted:

…inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right ‘to be tried within a reasonable time’ is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).

20In R. v. Silva, (OCJ Newmarket, unreported May 19, 2021), Kenkel J. dealt with the issue of how to attribute delay as it relates to the COVID pandemic. His conclusory comments, however, in my view, are equally appropriate to the facts before this court where he states:

This case illustrates what the Supreme Court in R. v. Jordan, 2016 SCC 27 called a ‘culture of complacency’. The presumptive ceilings established in Jordan require defence counsel, Crown counsel and the court to work proactively to ensure that the accused’s right to a trial within a reasonable time is not frustrated. The community also has a strong interest in timely trials.

21In my view, the conclusions reached by the trial judge as they relate to the disclosure delay are entirely borne out by the facts. It was entirely open to the trial judge to come to the conclusion that she did, that the defence did not demonstrate the required diligence in reviewing the disclosure at an early stage to ensure that there was nothing outstanding. As such, the period of delay between March 5 and 6, 2018 to September 19, 2018, was properly attributable as defence delay. Having reached that conclusion, the appeal cannot succeed as the net delay falls well within the Jordan timeframe. As such, the appeal is dismissed.

M.L. Edwards, RSJ