COURT FILE NO: CR-22-50000477-0000 DATE: 20231006 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Teshome Daste Adane
BEFORE: Justice N. J. Spies
COUNSEL: Ailsa Miller, for the Crown/Respondent Michael Bartlett, for the Defendant/Mr. Adane, Teshome Daste Adane
HEARD: August 30, 2023
RULING on DEFENCE Application for a Stay of Proceedings for Unreasonable Delay sECTIONS 11(B) and 24(1) of Charter
SPIES J.
Overview
1The Applicant, Teshome Daste Adane requests an order declaring that his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) has been infringed and a stay of proceedings pursuant to s. 24(1) of the Charter should be granted.
2Mr. Adane was arrested on March 28, 2020 by Canadian Border Service Agency (“CBSA”) officers at Pearson Airport. The information charging Mr. Adane with one count of sexual assault, contrary to s. 271 of the Criminal Code, was sworn on January 22, 2020. Mr. Adane’s trial is currently scheduled to take place on October 16, 2023, through to October 23, 2023, before a Judge and Jury in the Superior Court of Justice. I heard this application as the case management judge for this proceeding.
3The total delay from the date the information was sworn until the anticipated end of trial is 45 months and one day. For ease of calculation, I will use 45 months as the period of total delay.
4The total time from Mr. Adane being charged to the anticipated conclusion of trial is more than the presumptive ceiling of 30 months for proceedings in the Superior Court of Justice (“SCJ”) established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. As a result, the Crown must establish that it “should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control”: Jordan at para. 112.
Issues
5Although there are issues with some of the shorter periods of delay, as I will come to address, the primary issue to be determined is whether Mr. Adane acted reasonably by not agreeing with the Crown to set a Judicial Pre-trial (“JPT”) before receiving certain disclosure that he asserts was required for a full answer and defence and before he could make an informed decision on an election. The disclosure at issue includes the arresting officers’ notes from the CBSA (the “CBSA notes”) and the notes of the Toronto Police Service officers (“TPS Transfer notes”) who transferred Mr. Adane to Toronto. It is Mr. Adane’s position that his counsel acted diligently to expedite the matter as much as possible and that none of the delay is attributable to the defence.
6It is the Crown’s position that much of the delay was caused by Mr. Bartlett, counsel for Mr. Adane, who is alleged to have refused to schedule a JPT because he did not have full disclosure and that he used the failure of the Crown to unreasonably delay this proceeding.
The Timeline and Findings of Fact
(a) Timeline from charge to arrest
7Both counsel provided a record with various court documents, exchanges of emails and transcripts attached. Mr. Bartlett also relies on an affidavit of Olivia Paredes, a legal assistant in his office (“Paredes Affidavit”). She does not provide any personal knowledge and her affidavit is solely based on information from Mr. Bartlett and documents from the file. [1]
8Unfortunately, an inordinate amount of time was spent by this court in attempt to make sense of the timeline. Two very different timelines were provided by Mr. Bartlett and Ms. Miller on behalf of the Crown, rather than a joint timeline. Furthermore, not all information set out in the factums and stated by counsel in court was supported by the evidence filed. Subject to those limitations, the timeline for this case proceeding from the date Mr. Adane was charged to the anticipated end of the trial is as follows.
9On March 28, 2020, Mr. Adane was arrested by CBSA officers at Pearson International Airport on a warrant in the first. TPS officers attended the airport to obtain a transfer of custody of Mr. Adane from the CBSA officers. This was 67 days after Mr. Adane was charged.
10Ms. Miller on behalf of the Crown filed a warrant application supplementary report (“the report”) which sets out information in support for the request for a warrant in the 1st instance for Mr. Adane’s arrest was obtained on January 17, 2020. The report sets out that efforts were made to locate Mr. Adane at his last known address and by calling his cell phone. After additional efforts were taken to locate Mr. Adane, police were advised by Mr. Adane’s landlord that he had travelled home to Ethiopia and his return date was unknown.
11After his arrest, Mr. Adane was held for a bail hearing. He takes the position that he did not appear before a Justice until at least approximately 27 hours after he was arrested, contrary to s. 503 (1) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Bartlett advised that he only became aware of this breach once he got the CBSA notes, but I understand that no Charter applications are being brought at the trial.
12Mr. Adane was released on bail on March 30, 2020. By this time the Covid-19 pandemic had been declared a global health emergency by the World Health Organization.
(b) Timeline in the OCJ
13Because of the pandemic, appearances in the Ontario Court of Justice (“OCJ”) for accused persons not in custody were being made by audio conference. When neither the defendant nor counsel appeared in case management court, there was an automatic “Covid Adjournment” for ten weeks pursuant to the OCJ’s Covid-19 guidelines.
14Neither Mr. Adane nor counsel on his behalf appeared at the first appearance on June 11, 2020, and so the Crown requested and was granted the Covid Adjournment to August 20, 2020. On the second appearance on August 20, 2020, as neither Mr. Adane nor counsel on his behalf appeared, another 10-week Covid Adjournment was granted to October 29, 2020.
15I have no evidence as to when Mr. Adane retained Mr. Bartlett but he went on record for Mr. Adane when he filed an enhanced designation with the court on September 23, 2020.
16Mr. Bartlett takes the position that on July 28, 2020, he made the first request for disclosure by faxing a request to the Crown’s office (“July 28, 2020 Disclosure Request”). This disclosure request included a request for the CBSA notes and the TPS Transfer notes. The Crown’s position is that this disclosure request was not received. Although no evidence was filed to support this statement by the Crown, Mr. Bartlett did not challenge that position although he did argue that the fact this request did not make it into the hands of the assigned Crown responsible for the case should be delay attributable to the Crown because of office inefficiencies. This submission presumes that the fax was sent and received.
17However, I am not satisfied that this request for disclosure was in fact sent or received by the Crown’s office. On its face, the letter does state that it was going to be sent “Via Fax” but there is no fax confirmation sheet filed with the affidavit of Parades Affidavit. Furthermore, Ms. Parades only states that the request was “sent by defence counsel”. Mr. Bartlett argued that other faxes were received by the Crown but that does not assist given there is no evidence before me that this particular request was in fact sent or, more importantly, actually received by the Crown’s office. When Mr. Bartlett did go on record on September 23, 2020, there is no dispute that initial disclosure was provided by the Crown’s office two days later. For these reasons, I find that if the July 28, 2020 Disclosure Request had been received by the Crown’s office on July 28th, initial disclosure would have been provided promptly.
18Ms. Henderson sent an email to Mr. Bartlett on October 2, 2020, advising that she had seen in their SCOPE system that he had been retained, and she asked that he advise if he would like to discuss a resolution or whether they could arrange a JPT if the matter was likely to head to trial. Mr. Bartlett responded the same day to say that he still had to review disclosure with Mr. Adane and obtain his instructions as to whether he wanted to resolve the matter or not.
19Thereafter the matter proceeded to a Crown Pre-trial (“CPT”) on October 16, 2020 with Ms. Henderson. The Crown takes the position that an early resolution position was provided to Mr. Bartlett at the CPT, which is disputed by Mr. Bartlett. In the Paredes Affidavit it is stated that the Crown did not have a “firm” resolution position. Mr. Bartlett also relies on the fact that the resolution section of the Charge Screening Form dated June 5, 2020 was blank. According to Ms. Miller’s timeline, at the CPT it was agreed that Mr. Bartlett would review the disclosure, obtain instructions, and contact the Crown when he was ready for a JPT. I have no evidence from Ms. Henderson as to what was discussed at the CPT and so I cannot determine if the Crown conveyed a “firm” resolution position or if there was in fact a discussion about proceeding to a JPT, but it certainly seems likely given her email of October 2, 2020 asking Mr. Bartlett if he would like to discuss a resolution.
20I do find however that the issue of disclosure was discussed at the CPT. According to Ms. Miller’s timeline, the only reference to outstanding disclosure was the complainant’s video statement which was re-sent to Mr. Bartlett a day later. Mr. Bartlett’s timeline states that outstanding disclosure issues were discussed but provides no specifics. I accept that he likely would have raised the issue of the CBSA notes and TPS Transfer notes being outstanding, given that they were mentioned in his July 28, 2020 Disclosure request.
21On October 29, 2020, neither Mr. Adane nor counsel on his behalf attended case management court and so there was another Covid adjournment to December 3, 2020, with a discretionary bench warrant. I have no evidence from Mr. Bartlett as to why he failed to appear or send an agent. As I will set out, at each of the set dates in the OCJ that followed, the next return date was set after the court was advised Mr. Bartlett needed more time for various reasons but always including outstanding disclosure. However, he never stated anything that suggested that the outstanding disclosure was the reason why he was not agreeing to proceed with a JPT. Mr. Bartlett argues that the Crown consented to each of these adjournments but based on my review of the transcripts, in many cases it would be more accurate to state that the Crown did not oppose the return date requested by the defence and, on occasion, was not even asked for its position by the Court.
22On December 3, 2020, Mr. Bartlett appeared in the OCJ and requested a return date of January 21, 2021. He was asked by the Justice of the Peace what was happening with the file. Mr. Bartlett stated that there had been a CPT and that there were some further discussions to be undertaken with Ms. Henderson and that time was needed for that purpose. The Crown who appeared took no issue with putting the matter over but stated on the record that Ms. Henderson had been ready to set a JPT since October 24, 2020. This was not disputed by Mr. Bartlett in court, so I accept this as a fact. The Justice of the Peace then granted the adjournment but asked Mr. Bartlett to schedule the JPT with Crown. Mr. Bartlett made no comment in response.
23On January 21, 2021, Mr. Bartlett appeared in the OCJ and stated that he had received some disclosure that he was currently reviewing, and he requested a return date of March 18, 2021, to finish reviewing the disclosure and have a CPT. The Crown was agreeable, and the matter was adjourned to March 18, 2021.
24On February 22, 2021, according to the Paredes Affidavit, Mr. Bartlett and the Crown, presumably Ms. Henderson, had a telephone call regarding outstanding disclosure, during which the Crown took note of outstanding disclosure items and provided a resolution position. Mr. Bartlett submitted that this was the first time that a resolution position was provided but there is no evidence in support of that position. There is no mention of this date in the Crown material. In my view when the Crown provided a resolution position is not a fact I need to determine as any delay in that regard does not appear to have impacted on decisions Mr. Bartlett made. If a resolution position was something he was really looking for, scheduling a JPT would have been the obvious thing to do.
25On February 26, 2021, Mr. Bartlett sent a disclosure request for, among other items, a list of CBSA officers involved and their notes: Disclosure Request #1.
26On March 18, 2021, Mr. Bartlett appeared in the OCJ and Ms. Henderson was also in attendance. Mr. Bartlett stated that he had had some discussions with the Crown, that the Crown’s position “was conveyed,” to Mr. Adane, and that he needed time to obtain further instructions from Mr. Adane with respect to the Crown’s resolution position and to continue discussions with Ms. Henderson. The matter was adjourned to May 13, 2021, a day after the date requested by Mr. Bartlett.
27On May 13, 2021, Mr. Bartlett appeared in the OCJ and advised the Court that a CPT had been conducted. He requested a return date of June 24, 2021, to have further discussions and obtain instructions from Mr. Adane. I presume that those instructions were with respect to the Crown’s resolution position. The Crown stated that she was content with this request and the matter was adjourned to June 24, 2021.
28On June 24, 2021, Mr. Bartlett appeared in the OCJ and requested a return date of early August. The Court asked what was going on with the file. Mr. Bartlett stated that he had had a CPT with Ms. Henderson, that he required further disclosure, and that he was going to make further disclosure requests. He stated that the reason he was asking for August 4th was to send further requests to receive the disclosure and hopefully review it. The Court expressed concern about the length of the adjournment if Mr. Bartlett was not doing a CPT and suggested that the matter come back in July “so we can keep track of this”. Mr. Bartlett stated he would endeavor to schedule a further CPT. The Crown agreed and the matter was adjourned to August 5, 2021.
29There is no evidence that Mr. Bartlett made any further attempts to schedule a CPT and he did not send a further request for disclosure until August 5th, when he requested several items including a list of the CBSA officers involved and their notes: Disclosure Request #2. Mr. Bartlett then appeared in set date court on that date to request a return date of mid-September to receive the disclosure he had requested that morning. The Court asked about a JPT and expressed concern over the fact that it looked like a “very, very, very old matter”. The Crown stated that the requested adjournment was agreeable if Mr. Bartlett at least had the CPT by then and set a JPT date if necessary. The Court agreed because the requested adjournment was six weeks out, which would give time for these steps and granted the adjournment to September 16, 2021.
30On September 16, 2021, Mr. Bartlett appeared in the OCJ and requested a further adjournment to October 21, 2021, to review disclosure that he received following his request of August 5, 2021, some of which had been received the day before. He stated that a few items were still outstanding. The matter was adjourned to October 21, 2021. The Crown was agreeable to the return date and stated that CPTs were ongoing.
31On October 21, 2021, Mr. Bartlett appeared in the OCJ and advised the Court that he was still waiting on some disclosure that he had requested on August 5, 2021. He requested a return date of November 25, 2021 which was granted. The Crown acknowledged that some items remained outstanding but stated that a number of items had been provided and that it looked like the matter should be ready to proceed to a JPT. The Crown encouraged Mr. Bartlett to contact the Crown to arrange a JPT as significant disclosure had already been provided.
32On November 25, 2021, Mr. Bartlett appeared in the OCJ, and stated that he had recently received a “lengthy list of items” by way of disclosure, some of which were videos, two days earlier and that he required time to review them. He requested a return date of January 13, 2022. The Crown agreed with this request provided Mr. Bartlett set a CPT in the interim.
33The Paredes Affidavit states that Mr. Barnett had follow up discussions with the Crown on December 9, 2021, regarding missing disclosure and a possible bail variation.
34On January 13, 2022, Mr. Bartlett appeared in the OCJ and stated that he had sent a follow up disclosure request and had not yet received the items in question. He referred to the CBSA Notes and “other matters”. He said he would get in touch with Ms. Henderson to advise her what the outstanding items were. There is no evidence that Mr. Bartlett had in fact “sent” the Crown a further disclosure request in writing since Disclosure Request #2 on August 5, 2021. Mr. Bartlett requested that the matter return on February 17, 2022. This was agreeable to the Crown who attended, and the requested adjournment was granted.
35It was not until February 17, 2022, that Mr. Bartlett sent an updated disclosure request in writing setting out what he had and what he had not received, including reference to the CBSA Notes: Disclosure Request #3. He then appeared in set date court and stated that there had been ongoing disclosure requests and that he has just sent one, referring to Disclosure Request #3, and requested that the matter go over to March 17, 2022, for receipt of the disclosure. The adjournment was granted as requested.
36On March 17, 2022, Mr. Bartlett sent another updated disclosure request (Disclosure Request #4) and he then appeared in set date court. He advised the Court that he sent a disclosure request on February 17th, i.e., Disclosure Request #3 and had not received any additional items. He stated that he sent an updated list, a reference to Disclosure Request #4, and the matter was adjourned to April 7, 2022. The Court asked Mr. Bartlett if he had been speaking with the assigned Crown and he stated that that he had had a CPT, and that Ms. Henderson was aware of the outstanding disclosure. The Crown confirmed this was accurate and the adjournment which was granted.
37On April 7, 2022, Mr. Bartlett appeared in the OCJ and stated that he was waiting for a number of items that Ms. Henderson was aware of; I presume a reference to Disclosure Request #4. He asked that the matter return on April 21, 2022, to receive those items, which was granted.
38On April 21, 2022, Mr. Bartlett sent another updated disclosure request (Disclosure Request #5), and he appeared later that day in set date court and requested a return date of May 12, 2022. He stated that he had sent a number of disclosure requests, as recently as Disclosure Request #5 and that he had not received any items requested in that request. Mr. Bartlett asked that the matter be adjourned to May 12, 2021, but unfortunately, the Court dockets for May were at capacity so the matter was put over to June 2, 2022. The Crown was agreeable.
39On June 2, 2022, Mr. Bartlett sent another updated disclosure request that included a reference to the CBSA Notes: Disclosure Request #6. He appeared later that day in set date court and requested a short adjournment to receive “quite important disclosure”. He stated that he had sent prior disclosure requests just “for clarity” and asked if the Crown had a suggested return date. The Crown stated that she did not have an update on disclosure and the matter was adjourned to June 16, 2022.
40On June 16, 2022, Mr. Bartlett sent another updated disclosure request (Disclosure Request #7) to request the notes of the CBSA arresting officers. He appeared later that day in set date court and stated that there was still a significant amount of disclosure outstanding. Before granting the adjournment, the Justice of the Peace asked when Mr. Adane was charged. When he was advised of the charge date, the Justice of the Peace asked why disclosure was still outstanding. Mr. Bartlett was asked to contact Ms. Henderson directly as it appeared a number of items requested did not actually exist. When Mr. Bartlett was asked how long ago he had made his request, he said that it was from the beginning and that he had sent repeated requests for the notes of the initial arresting officers. The transcript does not set out much of the response from the Crown because of “audio drops” but the Crown stated that they should have a response by July 1, 2022, and so the court agreed to “one more adjournment” to July 7, 2022. His Worship commented that he did not understand why Mr. Bartlett had not yet been advised that some of these items did not exist nor did he know if Mr. Bartlett was “asking for items that perhaps are just slowing down the matter unnecessarily. … I don't have the file, … I don't have all the information - whether the delay here is falling at the feet of the prosecution or at your [Mr. Bartlett’s] feet. This needs to be sorted out in a proper case management court before a judge. This is taking too long”. His Worship added that if Mr. Bartlett felt there was still outstanding disclosure on the next date, the matter should be put in front of a judge for a more thorough review.
41On June 17, 2022, the Officer in Charge asked for the notes of the arresting CBSA officers for the first time. I have no evidence before me to explain why those notes were not requested earlier. Clearly if they had been, they would have been received and disclosed to the defence much earlier as they must have been received within a couple of weeks – in other words the delay in disclosure was not caused by the CBSA officers.
42On July 6, 2022, the outstanding CBSA notes were disclosed to Mr. Bartlett. The next day, July 7, 2022, Mr. Bartlett appeared and confirmed this and for the first time stated that he would like to set a JPT as soon as possible. He was advised to contact Ms. Henderson to do so. Mr. Bartlett advised me that on the day after this disclosure was received, he “attempted” to schedule a JPT in court. There is no evidence of this. In fact, on the evidence before me, Mr. Bartlett did not contact Ms. Henderson to schedule a JPT for over a month, until August 11, 2022, after obtaining instructions from Mr. Adane. After an exchange of emails, a JPT proceeded before Tuck-Jackson J. on August 15, 2022. At that time, Mr. Bartlett stated that Mr. Adane’s intention was to elect trial in the SCJ before judge and jury. In his timeline, Mr. Bartlett states that previous disclosure issues and delay was discussed and that he was advised that a JPT at the SCJ had to be scheduled as soon as possible.
43The Paredes Affidavit states that at the JPT Mr. Bartlett advised that there were previous disclosure issues that delayed proceedings, that because of recent disclosure Mr. Adane intended to elect to be tried by judge and jury in the Superior Court of Justice and that a JPT should be scheduled at the Superior Court of Justice level as soon as possible. The Crown indicated that she would provide available dates. A possible bail variation proposal was also discussed with Her Honour.
44This election was confirmed in set date court on August 18, 2022, and the matter was adjourned into the SCJ Practice Court on September 9, 2022.
(c) Timeline in the SCJ
45On September 9, 2022 at the first appearance in the SCJ, the matter was adjourned to October 21, 2022 for trial dates to be set. A JPT was held on September 26, 2022, before Croll J. No Charter issues were raised at this time. A bail variation to allow Mr. Adane to return to Ethiopia was discussed.
46On September 30, 2022, Ms. Henderson emailed Mr. Bartlett asking him to select from the following SCJ trial dates: February 6, 2023; April 26, 2023; and October 30, 2023. She advised that she was available for trial for the February and April dates. Mr. Bartlett replied to this email asking for October 30, 2023. The Crown was later able to secure the earlier date of October 16, 2023, by authorizing the use of a priority in-custody spot.
47The Paredes Affidavit includes the Trial Confirmation Form dated October 18, 2022. On that form, the first date the Court was available was January 30, 2023. The Crown was noted as being available on February 6, 2023, or April 24, 2023. The defence was available in October 2023.
48On October 21, 2022, the trial date was put on the record and the matter was adjourned to a trial confirmation date of September 15, 2023.
49Mr. Adane had purchased an airline ticket to return to Ethiopia on January 29, 2023, returning April 29, 2023. Without any other evidence I find that this planned trip is at least one reason why Mr. Bartlett did not agree to the February or April trial dates that were proposed by Ms. Henderson.
50On May 30, 2023, at the request of the defence, a second JPT was held before Himel J. to discuss setting a date for the 11(b) application.
Analysis
The Law
51Counsel referred to a number of cases. Those that I found of most assistance apart from Jordan are as follows:
R. v. L.L., 2023 ONCA 52
52In L.L. the Court of Appeal upheld a decision ordering a stay of proceedings based on a s. 11(b) Charter breach. In that case, the application judge found that requests by defence counsel for certain occurrence reports containing information about the interactions of the complainant and the defendant in the days and weeks leading up to the complainant’s allegations of sexual assault and a statement made by the defendant in relation to these interactions was “important first party essential disclosure. They could assist the Applicant to make strategic decisions about the conduct of the trial.”, at paras. 15-16. On this basis, she held the resulting period of delay in disclosure was not attributable to the defence. The application judge was also upheld in her decision that the COVID-19 pandemic did not have a role in the delay as the case had entered the justice system when courts had re-opened.
R. v. Zahor, 2022 ONCA 449
53In Zahor, the Court of Appeal carefully set out in some detail the five steps to be taken to evaluate a s. 11 (b) application at paras. 60-78. I will follow those steps when I get to my analysis of the periods of delay in this case.
54In this case, the Court of Appeal upheld the decision of the trial judge to equally attribute the delay arising from disclosure of a hard drive. In the course of reaching that conclusion, a number of statements were made by the court that are of assistance in this case. The court confirmed of course the duty on the Crown to make full disclosure but also found at para. 98 that:
the defence was far from diligent in seeking disclosure and did not request assistance with the outstanding disclosure at any of the judicial pretrial hearings. Defence counsel stated on the record that he was awaiting ‘outstanding disclosure’ but said nothing more about what was outstanding.
55The Court of Appeal noted the Supreme Court of Canada decision of R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 and starting at para. 99 stated as follows:
99 In Cody, at paras. 31-35, the Supreme Court emphasized the importance of defence counsel being diligent, and the ways in which defence conduct may be viewed as legitimate or illegitimate, depending on the degree to which defence counsel "actively advance[es] their clients' right to a trial within a reasonable time". The court described, at para. 33, how defence omissions may lead to a finding of illegitimate defence conduct, referring to the following passage from R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37:
The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.
100 In my view, the defence conduct in obtaining the E01 images demonstrated complacency in the delay that accumulated. On the record, it is not clear that defence counsel even knew what was being requested, let alone that the Crown could understand how to discharge its disclosure obligations. Against that factual context, the trial judge's decision to apportion the 7.5-month delay equally - attributing 3.75 months to the defence - was free of error.
101 The appellant argues that the trial judge was not legally entitled to apportion any part of the hard drive issue as defence delay because it was not "solely" caused by the defence - no doubt a reference to Jordan, at para. 66, that defence delay includes "delays caused solely or directly by the defence's conduct".
102 I respectfully disagree. In some cases, it will be "fair and reasonable" to approach a given period of delay by apportioning responsibility between the Crown and the defence: see R. v. Boulanger, 2022 SCC 2, at para. 10; R. v. K.J.M., 2019 SCC 55, at para. 96. In all cases, a contextual approach is needed to determine the extent to which the defence conduct is the "sole or direct" cause of delay: Hanan, at para. 56, referring to R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46.
103 The trial judge grappled with the defence conduct, on the one hand, and the Crown "dropping the ball", on the other. The trial judge made no error in his decision to equally attribute the delay arising from the hard drive issue and I see no basis to disturb that conclusion. [Emphasis mine]
Application of the Jordan Framework
56I will now follow the steps created by the Jordan framework to determine this application. I have already set out the period of total delay which the parties agree on, namely 45 months and one day over which is 15 months over the presumptive ceiling of 30 months for proceedings in the SCJ. As a result, the onus is on the Crown to establish that it “should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control”: Jordan at para. 112.
57Step 2 of the Jordan framework requires a determination of what part, if any, of the delay should be characterized as defence delay. In this case, there was no express waiver of delay by the defence. I must however consider the conduct of defence counsel with respect to the various periods of delay. In this regard, there are two periods to consider. The first results from the delay in disclosure of the CBSA Notes and the delay in the scheduling of a JPT and the second stems from the fact that Mr. Bartlett did not pick the earliest trial date that was offered by the Crown.
58With respect to the delay in the scheduling of a JPT, Ms. Miller’s position is that Mr. Bartlett delayed setting a JPT for 617 days “under the guise of incomplete disclosure”, which she submits was unreasonable and illegitimate insofar as it reflected a marked indifference toward delay. Mr. Bartlett, on the other hand, points to the unexplained delay in the disclosure of these records and argues that there is no evidence that he refused to proceed with a JPT. He also points out that he had numerous CPTs with Ms. Henderson. There is merit to both of their arguments.
59Ms. Miller calculated the period of 657 days on the basis from December 3, 2020, to August 11, 2022. She submits that on October 16, 2020, Mr. Bartlett had a CPT with Ms. Henderson and that the first court appearance following that CPT was on December 3, 2020, and that in the meantime he had enough time to review the initial disclosure and get ready for a JPT.
60I agree that the period of delay in issue because of the delayed JPT is 657 days, but for slightly different reasons than those provided by Ms. Miller. I have set out my findings of fact from the evidence before me. I have found that Ms. Henderson was prepared to set a JPT as of October 24, 2020, which was a few days after the CPT on October 16th. As I have set out, at the attendance in the OCJ on December 3, 2020, the Crown stated this as a fact on the record and Mr. Bartlett did not dispute this statement. Using December 3, 2020 as the starting point is reasonable and in fact generous to the defence. I have found that August 11, 2022 was the first time when Mr. Bartlett advised Ms. Henderson he was in fact prepared to schedule a JPT.
61For the reasons I will explain, in my view this period of delay should be apportioned equally between the Crown and the Defence: 328.5 days each or, using the formula in R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145 a period of 10.8 months each. This brings the period the Crown must justify to 34.2 months.
62Although, as I have said, I am not satisfied that the Crown received the July 28, 2020 Disclosure Request. I have found that Ms. Henderson became aware of the fact that Mr. Bartlett was seeking the CBSA notes and the TPS Transfer notes at the CPT on October 16, 2020. They were then listed in Disclosure Request #1 sent on February 26, 2021, and the Disclosure Requests that followed. I have no evidence as to why the Officer in Charge did not ask for the CBSA notes until June 17, 2022. Because of that delay, these notes were not disclosed to Mr. Bartlett until July 6, 2022. Clearly the issue was not with the CBSA officers as they responded quickly once their notes were asked for. Accordingly, if the notes had been requested earlier by the Officer in Charge, the notes would have been disclosed to the defence much earlier.
63In my view, this conclusion does not lead to a finding that all the delay should be attributed to the Crown. As the court stated in Dixon, at para. 37, the very nature of the disclosure process makes it prone to human error and vulnerable to attack.
64There is the issue Ms. Miller argued as to whether the defence needed these notes to make a strategic decision as to what election to make. Mr. Bartlett advised me that he was not aware of any case dealing with this issue in the context of officer notes. He referred to L.L. but in my view the notes Mr. Bartlett wanted clearly did not have the relevance of the records sought in L.L. The records sought in that case included certain occurrence reports containing information about the interactions of the complainant and the defendant in the days and weeks leading up to the complainant’s allegations of sexual assault as well as a statement made by the defendant in relation to these interactions. The same is true of R. v. D.A. 2018 ONCA 96, 402 C.R.R. (2d) 303, where the outstanding disclosure was the occurrence report and the police officers’ notes relating to the initial complaint in a historical sexual assault case.
65Ms. Miller argued that the notes would only be relevant to whether Mr. Adane made an inculpatory statement and submitted that the Crown was not seeking to introduce any statements made by Mr. Adane. The problem with that submission is that it is possible that Mr. Adane made an exculpatory statement when he was arrested that, in certain circumstances, might be admissible. The Notice of Application states that Mr. Adane informed his counsel at their initial meeting that the CBSA officers had asked him questions about the charge. There is no evidence to support this submission, but I accept that if this occurred, this may be possible and there may have been evidence of Charter breaches as the CBSA officers were the officers who would have had to give Mr. Adane his rights on arrest. There is however no evidence that Mr. Bartlett ever advised Ms. Henderson that this was the reason why he was requesting disclosure of the CBSA notes or that these notes were required before he would attend a JPT. He certainly never put this on the record at any of the appearances in the OCJ. I therefore am not persuaded that those notes were as important as he suggests. Furthermore, given the nature of what these notes might disclose, I am not satisfied that they necessary before attending a JPT.
66As for the TPS Transfer notes, they were disclosed some time before the CBSA notes and in any event, there is no suggestion in the evidence that Mr. Adane made any statements to the TPS officers who took over custody of him from the CBSA officers. Those notes in my view were not necessary before attending a JPT.
67Although in my view the CBSA notes were not necessary before attending a JPT, I am not prepared to find that the request for the CBSA notes in and of itself was done by Mr. Bartlett to delay the proceedings. That, however, does not end my analysis on this issue. The more important question is whether Mr. Bartlett “refused” to set a JPT until he received the CBSA notes and if so, whether that refusal was justified or done because he was content with the pace of the proceeding.
68Mr. Bartlett referred to R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.) in support of his position that he never “refused” to set a JPT, suggesting that it was up to Ms. Henderson to schedule one. He submitted that there needs to be an “outright refusal” which he argued is not this case. Mr. Bartlett stated that the practice in Ms. Henderson’s office was that the Crown schedules the JPTs. I have no evidence in support of that submission and in any event, I reject that submission as Mr. Bartlett’s own conduct shows that this is not how JPTs are scheduled in Ms. Henderson’s office. Comments from the court or the Crown at certain appearances in the OCJ that I have referred to in my timeline confirm that a JPT will proceed when both the defence and the Crown are prepared to schedule and attend a JPT. In my view, since Mr. Bartlett knew that the Crown was prepared to proceed with a JPT, it was up to him to let the Crown know he was prepared to do so as well. It was only after the disclosure of the CBSA notes on July 6, 2022, that Mr. Bartlett let Ms. Henderson know that he would proceed with a JPT when he sent an email to her asking to schedule one on August 11, 2022. She immediately responded and a JPT was scheduled. As I will come to address, it was clear from comments at the attendances in the OCJ by both the court and the Crown that the ball was in Mr. Bartlett’s court to do this much earlier.
69Mr. Bartlett’s actions were not consistent with the diligent pursuit of disclosure that he claims he really needed. If that were the case, in my view, he would have and certainly should have agreed to the scheduling of a JPT as that would have been the obvious way to deal with the outstanding disclosure issue. I have reason to believe that if he had raised the issue in a JPT, then with the assistance of the judge conducting the JPT, Ms. Henderson would have been able to ensure that the CBSA notes and the TPS Transfer notes were obtained quickly. In my view, it was not enough to simply send a request for the same disclosure multiple times and then cry foul when the disclosure was not received for many months after it was first requested.
70Furthermore, Mr. Bartlett implicitly agreed to set a JPT with the Crown when he appeared in the OCJ on December 3, 2020, and requested a return date of January 21, 2021. I have found, based on what was stated in court and the fact that Mr. Bartlett did not disagree, that Ms. Henderson had been ready to set a JPT since October 24, 2020. Mr. Bartlett was granted the adjournment he asked for, but the Justice of the Peace asked Mr. Bartlett to schedule the JPT with Crown. Mr. Bartlett made no comment in response suggesting that he would do so, but in fact there is no evidence that he let the Crown know he was prepared to proceed to a JPT.
71Mr. Bartlett argued that the Crown agreed to every adjournment. In my view, although the Crown and for that matter the court could have been more insistent that a JPT be scheduled, the fact remains that it was always Mr. Bartlett who gave a reason for why he needed more time and a further return date was necessary. In my view, given Mr. Bartlett’s inaction and given the comments that were made on the record that I have referred to, Mr. Bartlett cannot shift the blame to the Crown as he submitted, for this reason.
72Mr. Bartlett argued that it was not up to him to schedule a JPT but in the circumstances, in my view, after that attendance it was up to him to let the Crown know that he was willing to proceed with a JPT. It was the best way to deal with the issue of outstanding disclosure, if Mr. Bartlett was really concerned about that. As set out in my timeline, instead of following up to schedule a JPT, Mr. Bartlett repeatedly asked for more time to deal with disclosure issues, which in my view could readily have been resolved had he proceeded with a JPT as he implied to the court he would do.
73In addition to failing to follow up with Ms. Henderson on a JPT, I also find that Mr. Bartlett was taking a long time to get instructions, longer than what I would expect if he and Mr. Adane were serious about moving the matter forward. On March 18, 2021, when Mr. Bartlett appeared in the OCJ with Ms. Henderson, he stated that Mr. Adane was also in attendance. Mr. Bartlett stated that he needed an adjournment for two months to obtain further instructions from Mr. Adane with respect to the Crown’s resolution position and to continue discussions with Ms. Henderson. The matter was adjourned to May 13, 2021, a day after the date requested by Mr. Bartlett. There is no explanation in the application record why Mr. Bartlett had not been able to obtain instructions given that he had had the Crown’s resolution position for about one month or why he needed another two months. I note as well that Mr. Bartlett was not taking the position that he could not obtain instructions because the CBSA notes and the TPS Transfer notes had not yet been disclosed.
74In fact, at the next appearance on May 13, 2021, Mr. Bartlett requested more time and a return date of June 24, 2021, to have further discussions and obtain instructions from Mr. Adane. I presume that those instructions were with respect to the Crown’s resolution position. Again, there was no suggestion that outstanding disclosure was holding up the matter.
75It appears that by June 24, 2021, Mr. Bartlett had decided not to pursue a resolution because as of this date his repeated requests for more time were related to disclosure. On June 24th when Mr. Bartlett asked for a return date in early August, after giving reasons for the length of the requested adjournment, Mr. Bartlett stated he would endeavor to schedule a further CPT. The Crown agreed and the matter was adjourned to August 5, 2021. There is no evidence, however, that Mr. Bartlett made any further attempts to schedule a CPT and he did not send a further request for disclosure until August 5, 2021, the next appearance date in the OCJ. This is another pattern I have noticed, namely that further disclosure requests were sent on the next attendance date rather than right after the attendance when the adjournment was granted. Again, this suggests that Mr. Bartlett was not being diligent in getting this matter to trial.
76On August 5, 2021, when Mr. Bartlett appeared in the OCJ, after the Court expressed concerns about the age of the matter, the Crown agreed to the adjournment requested by Mr. Bartlett only if they had a CPT before the next date and set a JPT date if necessary. At the next appearance on September 16, 2021, further disclosure had been provided and apparently CPTs were ongoing. At the next appearance however, on October 21, 2021, Mr. Bartlett requested a more time and a return date of November 25, 2021, because he was waiting for further disclosure. Again Mr. Bartlett was encouraged by the Crown to arrange a JPT as significant disclosure had already been provided. Again, Mr. Bartlett did not take the Crown up on the suggestion. At the next attendance on November 25, 2021, Mr. Bartlett appeared in the OCJ, and asked for a return date of January 13, 2022. Again, the Crown agreed on the condition that Mr. Bartlett set a CPT in the interim.
77As I have set out above, on January 13, 2022, when Mr. Bartlett appeared in the OCJ and stated that he had sent a follow up disclosure request and had not yet received the items in question, there is no evidence that he had in fact sent the Crown with a further disclosure request in writing since Disclosure Request #2 on August 5, 2021. The return date requested by Mr. Bartlett of February 17, 2022 was granted. It was not until February 17th that Mr. Bartlett sent an updated disclosure request. Again, he requested more time because there had been ongoing disclosure requests and had just sent one. His request for a return date of March 17, 2022, for receipt of the disclosure was granted.
78This pattern was repeated on March 17, 2022, April 7, 2022, April 21, 2022, June 2, 2022, and June 16, 2022. On June 16th the court again expressed concern about the age of the matter and advised Mr. Bartlett that if he felt there was still outstanding disclosure on the next date, the matter should be put in front of a judge for a more thorough review. Finally, by July 7, 2022, the disclosure was received, and Mr. Bartlett was finally willing to schedule a JPT. Mr. Bartlett stated in his factum that he “initiated” the scheduling of the JPT but that is clearly a misstatement of what occurred. The evidence is clear that after October 24, 2020, the Crown was ready to schedule a JPT. It was Mr. Bartlett who failed to agree to proceed with one until July 7, 2022.
79At no time did Mr. Bartlett state on the record that he required the CBSA notes or the TPS Transfer notes so that he could make any strategic decision or, as Mr. Bartlett asserts, to provide informed instructions on an election. In his factum. Mr. Bartlett asserts that the multiple requests for this information meant that the “Crown knew that the disclosure was essential to the Applicant’s right to full answer and defence” but those repeated requests were part of lists of requested disclosure that as the case proceeded increased with new requests. Furthermore, Mr. Bartlett provides no explanation for this in the evidence filed in support of the application. He repeatedly characterizes this disclosure as “essential disclosure” but gives no reasons nor are there any obvious reasons for this characterization from the nature of what was outstanding, given this is a sexual assault case. There is no suggestion that Mr. Bartlett did not have any relevant information concerning the evidence of the complainant.
80For these reasons I find, as the court did in Zahor, at para. 98, that Mr. Bartlett was far from diligent in seeking disclosure and worse than the conduct in Zahor, did not even ask the Crown to schedule any JPTs to assist with the outstanding disclosure at any of the case management or set date appearances. Furthermore, on each occasion, all he told the court was that he was waiting for outstanding disclosure, but he never said why it was important nor that it was the reason that he was not prepared to schedule a JPT.
81Although the specific disclosure facts in Zahor are different, in the case at bar I find that based on what was happening, as set out above, Mr. Bartlett was not being diligent in actively advancing Mr. Adane’s interests in getting to trial within a reasonable time. Although he was repeatedly sending out his requests for disclosure, when the Crown did not produce the documents he was requesting, he failed to arrange a JPT where that issue could have resolved. In my view, that was what he needed to do to exercise due diligence and actively seek and pursue Crown disclosure. In my view, he was passive and content to keep asking for more time rather than diligently pursue disclosure so this matter could get to trial in a reasonable period of time.
82All of this is not meant to excuse the Crown’s office. I do not know where the ball dropped but clearly it was not with the CBSA officer. The requested disclosure should have been provided much more quickly. However, in my view, for all of these reasons, the just result is to apportion this period of delay equally between the Crown and the defence.
83In addition, there is the fact that Mr. Bartlett did not choose the earliest trial date that was offered by Ms. Henderson. The Supreme Court of Canada has recognized that defence delay may result if the court and the Crown are ready to proceed but the defence is not. The ensuing delay resulting from that unavailability is to be attributed to the defence: Jordan, at para. 64; Cody, at para. 30., R. v. Thanabalasingham, 2020 SCC 18, [2020] S.C.R. 413, at para. 9, R. v. Boulanger, 2022 SCC 2, 469 D.L.R. (4th) 63, at para. 8. I recognize that it does not necessarily follow that there is a “bright-line” rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. It is necessary to consider the circumstances of the case: see R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at para. 56.
84It is the position of Ms. Miller that the entire period of 90 days when Mr. Adane was in Ethiopia, he was unavailable for trial and that that 90-day period was implicitly waived by the defence. Mr. Bartlett argued that Mr. Adane could have returned from Ethiopia to be present for his trial earlier but the evidence I have is that his counsel did not choose one of the earlier dates and in fact chose October 30th, and then accepted the earlier date of October 16th. Had Mr. Adane been keen to have his trial earlier and return to Canada, and if Mr. Bartlett was available, then the only conclusion I can come to is that the February 6th date would have been chosen.
85In my view, however, Ms. Miller’s calculation is not correct as Mr. Adane did not leave for Ethiopia until January 29, 2023. I do find however that he was then unavailable for a trial until he returned from Ethiopia on April 29th, which was after the second trial date offered. I note again that had Mr. Adane been willing to come back even a little earlier and had Mr. Bartlett been available, they could have chosen the trial date of April 26th. I therefore find that the period of time attributable to the defence is at least 79 days or 2.6 months; the period from February 6, 2023 to April 26, 2023. After April 26th, I do not know if there were earlier dates when both the Crown and the court could have conducted the trial.
86This brings the period of delay to 31.6 months (34.2-2.6 months). Accordingly, I find that the net delay still exceeds the presumptive ceiling of 30 months, and it is presumed unreasonable; Step 3 of Jordan.
87Step 4 of the Jordan framework requires a determination of whether the Crown has established the presence of exceptional circumstances.
88The first period to consider is the period of 67 days from the time Mr. Adane was charged to the time of his arrest. The Crown’s position is that this should be considered a discrete event or perhaps defence delay given the efforts of the TPS to find Mr. Adane. He was arrested as soon as he was back in the country. Ms. Miller referred to R. v. Thind, 2018 ONSC 1337 starting at para. 76. Mr. Bartlett argued that this was a transitional case and that prejudice to the defendant is presumed now. He referred to another transitional case, R. v. Arthur, [2021] O.J. No. 3835 (S.C.J.), where at para. 59, the court found a delay of four years from the time of the charge to arrest was very likely to have a negative impact on the defendant’s right to a fair trial, specifically the right to meaningful cross examination.
89In this case, we are dealing with a period of just over two months. Unlike the transitional case referred to, I find that police took reasonable steps to locate Mr. Adane for the purpose of arresting him on the charge before this court. They called his cellphone, attended his last known address, and eventually spoke with his landlord who told them he was in Ethiopia with an unknown return date. At that time, police sought a warrant and notified the CBSA. I appreciate the information from the landlord is hearsay, but I am satisfied that Mr. Adane was in Ethiopia at the time he was charged until his arrest, as this is consistent with the evidence before me of the flight he had booked for the early part of 2023. Considering that finding, and given police were not aware of Mr. Adane’s precise whereabouts in Ethiopia and given Canada does not have an extradition treaty with Ethiopia, I find that the police acted with reasonable diligence. I note that Coroza J. in Thind did consider Jordan in considering this issue starting at para. 73 and I agree with his analysis.
90In my view, in these circumstances, the Crown cannot be held responsible for the time it took to find Mr. Adane and arrest him. I find that the delay of 67 days from the date when the information was sworn to when Mr. Adane was arrested is a discrete exceptional circumstance that must be subtracted from the total period of delay.
91This brings the period of delay to 29.4 months. (31.6 – 2.2 months).
92I must also consider the impact of the COVID-19 pandemic. As I have set out, the courts were not open when this proceeding began and the pandemic interrupted Mr. Adane’s first and second appearance. Individuals were instructed not to appear, and judicial officials were instructed to adjourn matters for 10 weeks at a time with discretionary bench warrants. A consideration of the impact of the Covid adjournments in this case also requires a consideration of the fact that I have found that the defence has not proven that the Crown received the July 28, 2020 Disclosure Request. I do know that the Crown became aware of the fact that Mr. Adane had retained Mr. Bartlett by September 23, 2020, and provided the initial disclosure two days later. Clearly, had the Crown been aware of the retain of Mr. Bartlett sooner, the initial disclosure would have been sent earlier.
93Ms. Miller submitted that the initial disclosure was ready on June 8, 2020, but as I have said there is no evidence of that. I therefore cannot accept the Crown’s calculation that 105 days, being the period from June 8, 2020 to September 25, 2020, should be considered an exceptional event.
94As I have stated, I do not know when Mr. Adane retained Mr. Bartlett. I do find however that but for the pandemic, there would not have been several Covid adjournments of 10 weeks each. I have also found that once Ms. Henderson was aware that Mr. Adane had retained counsel, she provided initial disclosure immediately. Although I am not able to determine the delay caused by the pandemic precisely, I find that it is likely that but for the pandemic, either Mr. Adane or Mr. Bartlett would have appeared in the OCJ before he prepared the July 28th Disclosure Request in which case initial disclosure would have been given by July 30th rather than September 25, 2020. On that basis I find that a period of 57 days or 1.87 months should be considered an exceptional event.
95This brings the period of delay to 27.53 months (29.4-1.87) which is below the 30-month ceiling established in Jordan.
Has Mr. Adane shown that this proceeding should be stayed even though the delay falls below the presumptive Jordan timeline?
96Although I have found that the period from the time Mr. Adane was charged to the completion of the trial is within the presumptive Jordan timeline, a defendant may still show it is unreasonable by demonstrating: i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and ii) the case took markedly longer than it should have: Jordan at para. 82.
97Mr. Bartlett raised my residual discretion to stay these proceedings. Given my findings with respect to his responsibility for the delay in the scheduling of the JPT and not taking the steps he should have to expedite the proceedings, I cannot conclude that absent that conduct and the other findings I have made that this case took markedly longer than it should have. A stay of proceedings is a remedy reserved for the “clearest of cases.” This is not such a case.
98For these reasons, there is no basis for me to exercise my residual discretion to stay these proceedings.
Disposition
99For these reasons, the application for an order staying this proceeding pursuant to ss. 11(b) and 24(1) of the Charter is dismissed.
SPIES J.
Date: October 6, 2023
1Although Mr. Bartlett swore Ms. Paredes’ affidavit, the documents attached as exhibits were sworn by someone else. No issue was raised by the Crown about this and so I have considered the documents attached despite this irregularity.