Court File and Parties

COURT FILE NO.: CR-19-00000304 DATE: 20231123

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – J.P. Applicant

Counsel: Victoria Zavitz, for the Crown Julia Kushnir and Bobby Russon, for the Applicant

HEARD: September 19-20, 2023

Warning

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171,171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03,280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection(1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relationto proceedings taken against any person who fails to comply with the order, the publication inany document or the broadcasting or transmission in any way of information that could identifya victim, witness or justice system participant whose identity is protected by the order. 2005, c.32, s. 15.

Justice L.C. Leitch

Endorsement

[1] The applicant seeks an order staying criminal proceedings against him on the grounds that his right to be tried within a reasonable time, as protected by s. 11(b) of the Charter of Rights and Freedoms (“Charter”), has been infringed. J.P. was arrested and charged on November 10, 2017.

[2] The applicant asserts that his case is unique in that it is before this Court for the second time following the Court of Appeal’s remittance after a Crown appeal of a decision of McArthur J. finding that the applicant’s s. 11(b) rights had been violated in the first instance and granting a stay of proceedings.

Background Timeline as Set Out in the Applicant’s Factum

[3] The applicant was arrested on November 10, 2017 and charged with two counts of assault and one count of sexual assault.

[4] The first Information was sworn on November 11, 2017. He was released on November 11, 2017. A charge of voyeurism was added shortly thereafter.

[5] A preliminary inquiry was held February 25-27 and July 22, 2019.

[6] The applicant’s first trial was scheduled to proceed on October 26, 2020 with completion expected by November 2, 2020.

[7] The applicant brought an application for a stay of proceedings pursuant to s. 11(b). On November 19, 2020, McArthur J. granted the application and ordered a stay of proceedings.

[8] A Crown appeal of that decision was allowed R. v. J.P. 2021 ONCA 866. The Court of Appeal noted at para. 1 that the Charter application proceeded on an agreement that the total delay was 35 months and 22 days and noted further at para. 4 that there was no dispute that the application judge erroneously used June 30, 2018, as the start of a period of defence delay when he should have used June 20, 2018, with the result that there was another ten days of defence delay. As a result, there was agreement that the Jordan ceiling was exceeded by only six days.

[9] The Court of Appeal found at para. 8 that there was an implicit, yet clear and unequivocal, waiver of over two months’ time that the application judge did not take into account. Thus, the resulting delay was well under the Jordan ceiling.

[10] As a result, the stay of proceedings was set aside, and the matter was remitted to this Court on November 29, 2021.

[11] On September 13, 2022, motion and retrial dates were scheduled. The first dates set for pre-trial motions were April 11, 12, and 13, 2023. The retrial was scheduled to begin July 4, 2023.

[12] As explained below, the initial retrial dates were vacated. The retrial is now scheduled to be completed by May 1, 2024.

Issue #1: Does the Constitutional Clock Reset to Zero Upon the Court of Appeal’s Remittance of This Case to This Court?

[13] The total delay from the swearing of the first Information on November 11, 2017, to the anticipated end of the retrial on May 1, 2024, is 77 months and 20 days (2363 days).

[14] The total delay from the Court of Appeal’s remittance of the case to this Court on November 29, 2021, until the anticipated end of the retrial (May 1, 2024) is 29 months and 2 days or 884 days.

[15] The applicant argues that in the circumstances of this case, where the applicant has been proactive throughout his first trial and delay was not raised for the first time in relation to the upcoming retrial, the conclusions of the Supreme Court of Canada in R. v. J.F. 2022 SCC 17 are not applicable. In other words, J.F., a case where the only 11(b) application was brought during a retrial, is distinguishable. Counsel for the applicant notes the emphasis on those circumstances in paras. 76 and 78 in J.F.

[16] On this motion, the applicant emphasizes that he explicitly raised the issue of delay and indicated his intention to bring a s. 11(b) application on February 11, 2020, when the trial dates were set for the first trial. In addition, the applicant emphasizes that the Crown’s Stinchcombe failures, which will be discussed below, were revealed during the first trial and continued during the retrial process.

[17] While I acknowledge these circumstances are different from those before the Court in J.F., I cannot accept the applicant’s argument on this issue. In my view, the guiding principles in J.F. are clear and they apply in these circumstances.

[18] As stated at para. 21 of J.F., the Court addressed the following questions: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?

[19] The Court emphasized at para. 31 that an accused person has a duty to act proactively with respect to delay, and at para. 34 stated that like any other application, a s. 11(b) motion must be brought “reasonably and expeditiously”.

[20] Importantly, although the Court stated at para. 54 that: Prior to Jordan, appellate jurisprudence seemed to allow an accused who was sent back to be tried again to raise the delay in both their first trial and their retrial. the Court observed at para. 55 that: The situation is completely different now, because the Court has made stays of proceedings subject to new parameters as set out in Jordan. It should now be understood that the computation of delay restarts at zero when a new trial is ordered. Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial.

[21] The Court concluded at para. 60 that: When a new trial is ordered, the constitutional clock for calculating delay is reset to zero (Gakmakge v. R., 2017 QCCS 3279; JEV, at para. 37; Masson v. R., 2019 QCCS 2953, 2019 CCS 2953, 57 C.R. (7th) 415, at para. 91). It follows that only the retrial delay can be counted when a s. 11(b) application is brought in that new trial.

[22] The Court went on to indicate in para. 60 that a court may consider first-trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances, which I will consider below.

[23] The Court in J.F. also concluded that the presumptive ceilings established in Jordan apply to retrial delay, noting at para. 68 that: The Jordan framework is therefore flexible enough to be used by Courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable. Delay may be found to be unreasonable “even if it falls below the presumptive ceiling” (Jordan, at para. 82).

[24] The issues on this motion will be considered on the basis that the constitutional clock reset to zero on November 29, 2021, when the matter was remitted to this Court by the Court of Appeal.

Issue #2 - What is the Jordan Ceiling That Applies?

[25] The applicant noted that the “intake” periods “baked into the ceilings in both courts is shortened in the context of a retrial” and that the 30-month ceiling acknowledged the time required for a preliminary hearing, which is not applicable to his retrial. As a result, the applicant asserts that in relation to his retrial the appropriate ceiling should be 18 months.

[26] In considering this argument, I am mindful that the Supreme Court of Canada in R. v. K.J.M., 2019 SCC 55, [2019] 4 SCR 39 declined to establish a separate ceiling for youth matters. The Court at para. 65, emphasized the appropriateness of “a uniform set of ceilings” as established in Jordan with “the objective of simplifying and streamlining the s. 11(b) framework.

[27] The Court explained further at para. 69 – 71 and 74: While the presumptive ceilings are a significant chapter in Jordan, they are not the full story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility.

The Jordan framework recognizes that delay falling below the presumptive ceiling will be unreasonable where the defence establishes that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (para. 48).

Focusing on the second requirement, this Court stated in Jordan that “[t]he reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings” (para. 87 (emphasis added)). The use of the word “including” indicates that the list of factors is not closed.

Ultimately, like the other factors identified in Jordan, the enhanced need for timeliness in youth matters is simply one “case-specific factor” to consider when determining whether a case took (or is expected to take) markedly longer than it reasonably should have.

[28] That reasoning and conclusion is applicable in these circumstances and the Jordan framework governs this application. The appropriate ceiling is 30 months.

[29] However, it is important to note that in K.J.M., the Court endorsed “a case-specific” approach and the consideration of circumstances in which there is an “enhanced need for timeliness” as I will discuss more fully below.

Issue #3 – What is the Net Delay?

[30] As set out above, the total delay from the Court of Appeal’s remittance of the case to this Court on November 29, 2021, until the anticipated end of the retrial (May 1, 2024) is 29 months and 2 days or 884 days.

[31] The applicant acknowledges 103 days – 60 days (from the period beginning November 14, 2022, the first date offered for motions until March 14, 2023, the first date defence counsel was available for 3 consecutive days) plus 43 days of delay setting the trial date – is attributable to defence delay and thus takes the position that net delay is 781 days.

[32] The Crown contends that an additional 92 days ought to be attributable to the defence and the net delay is 689 days. These contentious additional periods are the following:

(i) The 29 days from January 11, 2022 to February 8, 2022

[33] At the Assignment Court on December 14, 2021, original trial counsel appeared as a friend of the court. The applicant had not been notified of this return date. Original trial counsel advised that she would inform the applicant of the next Assignment Court date and the matter was adjourned to that date, January 11, 2022.

[34] On January 11, 2022, the applicant attended court unrepresented. The applicant advised that he anticipated retaining original trial counsel to assist him with the retrial, but she had some personal matters that rendered her “unavailable, to say the least, for quite a bit of time now.” The Court requested that the applicant waive his s. 11(b) rights in the following exchange: The Court: Okay. This matter obviously has an extensive history and I appreciate that’s largely outside of your control sir. But we really do need to move it forward. J.P.: I understand that. The Court: So I am asking that you waive just for the purpose of today… J.P.: Mm hmm. The Court: So, expressly waive your 11(b) rights, that’s the right to a speedy trial, with respect to the delay only between today and the return… The Court: …date. So the month basically? J.P.: Oh [indiscernible] Yes, that is agreeable.

[35] On this issue, I agree with the applicant’s position that although the applicant indicated that he was agreeable to a waiver, he was not capable of understanding the impact of those words. Further, I also agree that an adjournment, at the first appearance date of which the applicant was notified, for the legitimate purpose of retaining counsel should not be allocated as defence delay.

(ii) An additional 63 days from January 8, 2024, to trial completion May 1, 2024

[36] The first dates offered for the trial were September 18-27, 2023. The applicant’s counsel was not available for all those dates but importantly the “most necessary” police witness was also not available. Further, given the schedule of the complainant’s counsel, the trial could not have proceeded on those dates in any event.

[37] The Crown was available January 8, 2024, when the defence was not. The trial was set for the first date offered at which both Crown and the applicant’s counsel were available, April 22, 2024. I disagree with the Crown’s position that given that the Crown was available for trial commencing January 8, the entire period from January 8, 2024, to trial completion May 1, 2024, is a period of delay all of which is attributable to the defence, particularly when a trial date during this period was offered and the applicant’s counsel was available, and the Crown was not. I accept the applicant’s position that 43 days of this period is defence delay (from January 8 to February 2, 2024, and March 25 to April 12, 2024, when defence counsel was not available).

[38] I conclude that the net retrial delay is 781 days (26 months and 3 days) as submitted by the applicant. This is below the Jordan ceiling. Nevertheless, the applicant submitted that the delay in his retrial is unreasonable. This issue requires a contextual analysis which I will next turn to.

Issue #4 Has the Retrial Taken Markedly Longer Than It Should Have, Necessitating a Stay of Proceedings?

[39] As stated in Jordan at para. 84, on this issue the defence bears the onus to show that the delay in the retrial is unreasonable and “to do so, the defence must establish two things: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.” The Court was clear that “absent these two factors, the s.11(b) application must fail”. The Court also stated at para. 85 their expectation that “stays beneath the ceiling be granted only in clear cases”.

[40] Jordan provided further guidance on how the defence onus could be discharged stating the following at para. 84 and 85: To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the Court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.

To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial Court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the Court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

[41] In relation to the question of whether the reasonable time requirements of the case have been markedly exceeded, the Court in Jordan at paras. 87-91 instructed that “the reasonable time requirements of the case will increase proportionally to a case’s complexity”, local practice is relevant, the Crown should not be held to a standard of perfection and [W]here the Crown has done its part to ensure that the matter proceeds expeditiously – including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses – it is unlikely that the reasonable time requirements will have been markedly exceeded.

[42] In determining the reasonableness of retrial delay where it is below the applicable presumptive ceiling, the Court in J.F. proposed two factors that can be considered in analyzing the reasonableness of such delay, which are to be applied flexibly, having regard to the circumstances of each case: The first factor is the need to prioritize retrials when scheduling hearings… Participants in the criminal justice system, particularly the Crown and the Court, must act proactively when a new trial is ordered so that dates can quickly be set for that trial, which must normally be prioritized. As mentioned above, the accused also has a role to play in this regard and must take proactive measures for this purpose. The second factor goes hand in hand with the first: retrials are, as a general rule, to be conducted in less time than first trials.

[43] However, the Court further observed that the analysis of delay must remain contextual and take account of the specific circumstances of each case. I note that in this case there has not yet been any presentation of evidence. The estimated retrial time actually exceeds the original trial time by two days. Six days were scheduled for the original trial and eight days are scheduled for the retrial. There has also been a change of counsel which necessitated some delay as described above.

[44] The Court in J.F. offered this further guidance at paras. 72 and 73 in relation to the two factors proposed for consideration in the required analysis: These two factors are grounded in the duty of all participants in the criminal justice system to act in a timely manner. In the retrial context, this means that everyone, and especially the Crown, must ensure that retrials are prioritized when trial dates are set, and that retrial delay is as short as possible. Recognition of these factors is based on the objectives of s. 11(b). First, prioritizing retrials and considering that, as a general rule, retrials should be conducted in less time protects the s. 11(b) rights of accused persons and limits the negative consequences of being charged with a criminal offence (Jordan, at para. 20; Morin, at pp. 801-3). The making of an order for a new trial prolongs the period during which the accused is a person charged with an offence as well as the stress, anxiety and stigma associated with having that status. Indeed, this Court reiterated in Jordan that lengthy delay gives rise to an inference of prejudice to the accused (paras. 34, 554 and 110). Although Jordan eliminates the concept of prejudice as an analytical factor, this concept nonetheless remains central under the new framework, because the setting of presumptive ceilings was in fact based on the presumption that significant delay is prejudicial to an accused (para. 54). Second, the adoption of these two factors reflects recognition of the fact that prolonged delay also causes prejudice to victims, witnesses and the justice system as a whole (para. 110; see also paras. 22-27).

These factors must be assessed contextually, as required by Jordan. In this regard, first-trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first-trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the analysis remains contextual and flexible, and it is for the Court to make this determination in light of the specific circumstances of each case. The fact that this contextual element is considered does not allow an accused to raise first-trial delay indirectly. It must be remembered that the constitutional clock for delay is reset to zero when a new trial is ordered and that, from that point on, first-trial delay can no longer be counted. Giving too much weight to first-trial delay would be contrary to the principles set out in Jordan, which creates, first and foremost, a prospective framework that encourages parties to act proactively. Where a s. 11(b) motion is brought in the course of a retrial, it is the delay in that trial that remains the focus of the analysis.

[45] In accordance with the foregoing guidance, the retrial delay will be analysed.

[46] Initially, all participants acted in a timely manner in setting the first retrial date. The Crown stated an intention to proceed expeditiously, and the defence, in my view, made “meaningful, sustained steps to expedite the proceedings” as required.

[47] On February 8, 2022, applicant’s counsel, not the counsel retained for the first trial, appeared as the applicant’s agent and advised he anticipated being retained in short order. The matter was adjourned to March 8, 2022, to allow time for the applicant’s new counsel to receive disclosure and schedule a judicial pre-trial if possible.

[48] On February 22, 2022, upon being retained, counsel for the applicant sent an e-mail request for disclosure. On February 24, 2022, the Crown advised that the bulk of disclosure was sensitive in nature and an “Undertaking for Sensitive Disclosure” was required by the defence. The requested Undertaking was signed and returned that same day.

[49] Disclosure was promptly provided on February 24, 2022.

[50] The then assigned Crown proactively reached out to applicant’s counsel on February 25, 2022, to discuss the matter in advance of the March 8, 2022, Assignment Court and indicated interest in moving the matter forward and setting new dates.

[51] On March 8, 2022, applicant’s counsel advised that he required additional time to review the voluminous disclosure received on February 24, 2022, to conduct a meaningful judicial pretrial. He requested an adjournment until May for that purpose. The Court inquired as to whether the defence would waive s. 11(b), given the 2-month adjournment request. Counsel declined explaining that: I simply need time to review the matter to become prepared to conduct the matter. I don’t think it’s a request that’s outside the normal course of business but for the fact that there’s been a change in counsel.

[52] I note that in the Assignment Court on March 8, 2022, the Crown indicated all disclosure had been made. However, that was not the case as disclosure was made thereafter as described below.

[53] On May 10, 2022, a judicial pretrial was scheduled for June 6, 2022. Though applicant’s counsel had availability at the end of May, he indicated his preference would be to schedule the pretrial sometime in the week of June 6, 2022. No party objected to this proposal, and the pretrial was set for June 6, 2022.

[54] On May 17, 2022, applicant’s counsel sent an e-mail requesting a Crown pretrial. This was scheduled for May 20, 2022 and proceeded as scheduled. On May 20, 2022, applicant’s counsel confirmed his discussions with the Crown via e-mail that he did not have disclosure of the videos related to counts 1 and 4 in the Indictment. These were disclosed on May 21, 2022, by the Crown with an expression of appreciation for bringing this issue to her attention.

[55] The June 6, 2022, judicial pretrial could not proceed. The court noted that the pretrial was cancelled as no materials were filed by applicant’s counsel, who advised in an email that the applicant’s prior counsel was unable to deliver to him her expert material in time. This was addressed in the Assignment Court on June 14, 2022, and a pretrial was scheduled for July 8, 2022. The matter was adjourned to July 12, 2022.

[56] The July 8, 2022, judicial pretrial could not proceed, as applicant’s counsel had still not received sufficient material to prepare. The Crown indicated “of course, the Crown was prepared for the pre-trial as it was scheduled.” The pretrial was re-scheduled for July 21, 2022, which was the first date offered by the court.

[57] The Crown provided multimedia disclosure on July 18, 2022, which was corrupted. The Crown was advised of that circumstance immediately and an encrypted USB was delivered July 20, 2022.

[58] On July 21, 2022, the pretrial proceeded despite significant disclosure having been made the previous day.

[59] A further judicial pretrial was requested by applicant’s counsel on August 9, 2022, which took place August 18, 2022.

[60] On September 13, 2022, the Court’s endorsement confirmed that an eight-day judge and jury trial was to be set, with three days for pre-trial applications. The endorsement confirmed that there would be no challenge for cause, and that the Crown had conceded stage 1 of the s. 276 application. There were discussions with respect to s.11(b) but neither party took a position because the retrial date had not yet been set.

[61] The trial coordinator then provided the Court’s first availability for the three days of pre-trial motions: November 14-16, 2022. The defence was not available for the three-day block but had intermittent availability in the month of November. The Crown was available for November 14 and 16, but not 15.

[62] The Court’s next three-day availability was March 14, 2023. The defence was available. The Crown was not. The next available dates offered by the Court were March 20, and the defence was again available. The Crown was not. The next available dates commenced on April 11, 2023 and all parties were available. The pre-trial motions were thus set for April 11, 12, and 13, 2023.

[63] All counsel were available for the retrial to commence on July 4, 2023, the first dates offered by the Court.

[64] While it could be argued that given the prioritization that retrials deserve, the applications should have been scheduled on non-consecutive days, had the motions proceeded as scheduled in April 2023, the retrial would have been completed on a timely basis. However, that did not happen.

[65] On February 22, 2023, applicant’s counsel wrote to the Crown requesting a Crown pretrial, which was set for February 24, 2023. That pretrial did not proceed, as the Crown was in a trial. The pretrial was rescheduled for March 2, 2023, and ultimately proceeded on March 3, 2023. At this Crown pretrial, applicant’s counsel inquired as to the status of disclosure of the mirrored image of the applicant’s cellphone.

[66] The police had obtained a search warrant for the applicant’s cellphone that had been seized in another case that had gone to trial where the complainant in these charges was a witness. The applicant was acquitted of those charges. This cellphone’s data and contents had been mirrored and an extraction report prepared.

[67] Counsel for the applicant raised the issue of delay caused by the non-disclosure of the applicant’s phone at the March 3, 2023 Crown pre-trial. The then-assigned Crown indicated that delay was not a concern and she noted that according to J.F. the clock resets to zero after an appeal.

[68] The phone extraction report was delivered on March 9, 2023, but it could not be opened by counsel for the applicant, as he did not possess specialized software. This issue was raised with the then assigned Crown who first replied that “this is what we typically provide to expert witnesses” and indicated her understanding that “a qualified expert will have the software required to interpret the data”. In his response the applicant’s counsel stated that “he didn’t think he should require an expert to review disclosure”. The then assigned crown replied in an email that “the mirror image of your client’s phone does not amount to evidentiary disclosure with regards to this prosecution, but we provided you a copy of same as a courtesy”. She went on to indicate that, also as a courtesy, the Crown would provide an additional USB of data in Cellebrite Reader format.

[69] In an appearance in the March 15, 2023, Assignment Court, the applicant’s counsel indicated that this disclosure issue might impact his ability to file his motion material in time for the April 2023 application dates. As a result, the application readiness date was adjourned to March 22, 2023. On that date, the Crown maintained that the mirrored image of the applicant’s cellphone was not disclosure. The applicant took the position that it was disclosure and advised that he had only received the Cellebrite Reader format the previous day, March 21, 2023. When that format was provided on March 21, 2023, it was not functional.

[70] The matter was adjourned to a teleconference March 29, 2023 to address the disclosure issue. The Crown maintained its position and the applicant indicated that he would be obliged to file a Stinchcombe application. The applicant’s position was that he could not prepare for the s. 276 application without access to his cellphone.

[71] Immediately after the teleconference on March 29, 2023, counsel for the applicant wrote to the Crown inquiring why the applicant’s cellphone remained in London Police custody “if it’s the fruit of another investigation?” He also asked, “[c]an he just get his actual phone back instead of dealing with this software”. This e-mail went unanswered.

[72] The parties appeared in Court on April 12, 2023, to address the motions schedule. The Court raised s. 11(b) concerns given the difficulty in maintaining the July trial dates. That same day, applicant’s counsel wrote to the trial coordination office in an effort to schedule further motion dates that would enable the preservation of the July trial dates. Largely due to the complainant’s counsel’s schedule, this proved impossible, despite canvassing non-consecutive dates and the then-assigned Crown suggesting another Crown take her place.

[73] There was a Court appearance April 13, 2023, and communications between counsel on April 14, 2023, in which applicant’s counsel again requested the return of the applicant’s phone because of the functionality problem with the Cellebrite Reader. The then assigned Crown indicated that the phone would not be returned.

[74] On April 18, 2023, dates were set for: (1) the Stinchcombe and s. 490 applications; (2) the balance of the ss. 276/278 applications; and (3) the trial. The first date offered for the Stinchcombe and s. 490 applications was May 11, 2023, which was accepted by all parties. July 12 and 13, 2023, were the first dates offered for the second of the motions, and were accepted by Crown and defence, however, complainant’s counsel was unavailable. This caused the balance of the motions to be set for hearing September 19 and 20, 2023.

[75] On April 25, 2023, counsel for the applicant filed materials for the joint s. 7 Stinchcombe and s. 490(1) applications seeking the return of the applicant’s cellphone.

[76] On April 28, 2023, the then-assigned Crown indicated that, although she was maintaining the position the cellphone was not disclosure, she had worked out an agreement to have the police deliver the phone to the Crown who would provide the phone to applicant’s counsel on signing of an Undertaking. It is at this point that the Crown reverted to its 2020 position and agreed to disclose the phone after applicant’s counsel signed an “Undertaking for Sensitive Disclosure” in relation to the contents of that phone. The Undertaking was provided May 4 and signed and returned by applicant’s counsel May 5, 2023.

[77] This development resulted in the May 11, 2023, motion date for the Stinchcombe and s. 490 applications being vacated.

[78] Thereafter, the applicant advanced a s. 11(b) application. A judicial pretrial to discuss the s. 11(b) application was held June 2, 2023. The parties appeared in an Assignment Court June 13, 2023. The July retrial dates were vacated. The time set for the s. 267/278 applications was utilized for the hearing of this application. The balance of the motions was set to January 2024 and the retrial was scheduled to commence April 22 and be completed by May 1, 2024.

[79] In considering whether the reasonable time requirements of the case have been markedly exceeded, I note that there is no suggestion that this case is complex and there are no local practices which are relevant.

[80] I agree with the Crown that a factor for consideration is that there has not been a first trial and, as noted above, the required time for the retrial exceeds what was scheduled for the first trial by two days.

[81] I also agree with the applicant’s assertion that during the retrial process he has encountered the same disclosure issues that he experienced in the trial of first instance.

[82] I further agree with the applicant’s submission that the Crown took various, and often contradictory, positions vis-à-vis the disclosure or the return of the applicant’s cellphone, which ultimately necessitated the filing of the Stinchcombe and s. 490 applications. The Crown took the following positions:

• March 18, 2019: the then-assigned Crown (Crown #1), indicated “I sent a request to police for that [the applicant’s phone] on, I believe it was March 4th. And I indicated that it needed to be provided by March 13th to our office for disclosure.”
• February 11, 2020: Crown #1, indicated that “with respect to the mirror of the accused’s phone, I have no issue with that.”
• February 20, 2020: Crown #1, stated that “the first issue is J.P.’s cellphone was analyzed. I have no issue with providing a mirror image to counsel to view in its totality.” [according to the information in the affidavit of Detective Eddy filed in response to this application, pursuant to the request of Crown #1, he provided a USB containing the extraction of the applicant’s cellphone for disclosure to former defence counsel on February 21, 2020]
• October 29, 2020: after discussion regarding the applicant’s phone, the applicant’s previous counsel noted that after an acquittal in July 2019, the applicant’s phone that had been seized in relation to that case was retained by the police. She indicated she had received the extraction report in March 2020. The then-assigned Crown (Crown #2) advised the court that: “I have directed police to return the phone. Defence is already in possession of a mirrored copy of the phone so that they can make full answer and defence, but I also, in addition – directed the police to return the phone.” [this was the position of Crown #2 who remained the assigned Crown until August 2023]
• October 30, 2020: The applicant’s previous counsel noted that the applicant still did not have possession of his own phone but had access to a mirrored version. Crown #2 reiterated that she had directed police to return the phone. Crown #2 also made this statement: “ … my friend is suggesting that there’s thousands of texts as well in J.P.’s mirrored, mirrored report that realistically, at a trial, the Crown would not be adducing all of the evidence that’s part of the first party disclosure.”

[83] As the applicant notes on this application, if Crown #2, the Crown assigned to the retrial, had maintained the positions expressed above, the retrial would have proceeded as scheduled in July 2023. The applicant also points out that in the first trial proceeding, the Crown acknowledged that the applicant’s cellphone is first party disclosure. The Crown also acknowledged that the cellphone was required by the defence to make full answer and defence.

[84] However, in relation to the retrial, Crown #2, who is not the Crown appearing on this application, took the following positions:

• March 3, 2023: in an email to Detective Eddy, “you won’t believe this but prior defence counsel …did not return the phone image of the accused’s cellphone to the accused’s new counsel…”
• March 10, 2023: “In our view, the mirror image of your client’s phone does not amount to evidentiary disclosure with regards to this prosecution, but we provided you a copy of same as a courtesy”.
• April 14, 2023: “I am opposed to returning the accused’s cellphone as evidence of the offence still exists on the device.”

[85] It is impossible to reconcile the events described above, with the Crown’s position in its factum at para. 44 b) and c) that: b) There was a change of counsel, there is no evidence that the accused’s cellphone disclosure issue was ever addressed with the initial counsel and as such was not resolved during the original trial; c) As such, the disclosure issue which occurred during the retrial was a new issue which only occurred on the retrial.

[86] On this application, the Crown (Crown #3), places responsibility on the defence for the retrial not proceeding as scheduled. The Crown submitted in its factum that the cellphone analysis had been provided to the applicant’s prior counsel and there is no evidence she had any difficulties with the disclosure. The Crown also takes the position at para. 44(8) of its factum that the applicant’s counsel: [W]as not sufficiently diligent in requesting data which contributed to the delay. Had the applicant’s previous counsel provided her copy of the data to new defence counsel or if counsel for the applicant had requested the disclosure earlier the trial dates would not have needed to be rescheduled. Defence did not raise this problem until March 2023, 13 months after he was retained. The Crown cannot be said to be responsible for this delay.

[87] I cannot accept the notion that the Crown can rely on prior defence counsel to deliver the cellphone extraction to new counsel. As noted, applicant’s counsel was required to sign the “Undertaking for Sensitive Disclosure” in relation to the contents of the applicant’s cellphone. Surely, the same procedure was followed with prior defence counsel. That Undertaking prohibits granting access to that material to anyone outside counsel’s law firm.

[88] On this application, the Crown submitted that because the Crown does not intend to rely on the data from the applicant’s cellphone, the Crown was not obliged to disclose it. However, this submission does not align with the commitments made by the Crown during the first trial or the underlying reasons for the refusal to release the phone in April 2023. Furthermore, the Crown is obliged to make disclosure of information in its possession or control or information the police should have supplied to the Crown regardless of whether the Crown intends to rely on that information.

[89] During argument, the Crown noted that once the applicant’s current counsel requested the data from the applicant’s cellphone, the Crown worked expeditiously to obtain that information, the Crown offered the assistance of the police for any defence expert and the physical phone was ultimately delivered May 5, 2023. The Crown suggested that applicant’s counsel “missed this” for a year and it was understandable that “it came up” when he was preparing for the s. 276 application. As a result, the Crown’s position is that applicant’s counsel was not diligent and proactive in requesting relevant information and failed in his obligation to take all meaningful steps to expedite the matter.

[90] I agree that the Crown provided a prompt response to the request made by applicant’s counsel in March 2023. However, I do not agree that in doing so the Crown was responding as a courtesy as Crown #2 asserted. It is difficult to reconcile this perspective with the expectation that former defence counsel would have provided this information to applicant’s counsel. In my view, based on the record before me, the cellphone analysis is first party disclosure that the Crown was obliged to provide to applicant’s counsel. The Crown’s duty to disclose was triggered when the applicant’s counsel made the request for disclosure in February 2022 and promptly signed the first requested Undertaking.

[91] If the applicant’s phone is not properly characterized as first party disclosure, then the phone should have been returned to the applicant as required by s. 489.1. That section contemplates the return of seized property as soon as practicable if there is no dispute as to ownership and the continued detention of the property is not required for any investigation or trial or other proceeding.

[92] In undertaking the contextual analysis required in relation to this issue, I note that in relation to the retrial the Crown provided further disclosure after indicating disclosure was complete as of March 8, 2022. Crown #2, in March 2023, indicated a lack of concern with respect to delay relying on the reset of the constitutional clock for a retrial. The Crown did not make timely disclosure of the applicant’s cellphone. The Crown did not return the cellphone as promised. The Crown required the applicant to bring a Stinchcombe and a s. 490 application which resulted in the retrial date being vacated. The Crown then changed position reverting back to the position held three years previously that the cellphone could be returned. In addition, the Crown sought indulgences from the defence in relation to the filing of their response to this s. 11(b) application – applicant’s counsel agreed to a 30-day extension as requested by the Crown; on the last day of the extension the Crown requested a further extension which the applicant did not agree to, but the court granted.

[93] There is no evidence that the Crown took meaningful steps to expedite the retrial. There is no indication that the Crown made efforts to move the proceeding forward. The Crown was obliged to prioritize the retrial. However, no sense of urgency is revealed. Instead, the shifting and contradictory positions of the Crown caused delay.

[94] The retrial could have been concluded in July 2023 had the Crown followed through on its original position regarding the applicant’s cellphone expressed in 2020. The Crown’s failure to honour its commitment to return the applicant’s phone required the defence to bring a Stinchcombe and a s. 490 application, which created delay.

[95] Furthermore, as previously noted, it is hard to understand the continued retention of the applicant’s cellphone considering the requirements of s. 489.1. The fact that the Crown ultimately did not contest the s. 490 application reveals that neither the Crown nor a police officer could establish that such retention was so required. This conclusion in April 2023 is consistent with the Crown’s commitment in 2020.

[96] In contrast, the applicant did not delay retaining new counsel in relation to the retrial. Applicant’s counsel promptly requested disclosure. The time requested to review the disclosure was not unreasonable. Applicant’s counsel participated in the July 21, 2022 judicial pretrial even though disclosure was made the previous day. Applicant’s counsel complied with all timelines save and except for the s. 276 application and that non-compliance resulted from the disclosure issue which was created by the untenable positions of the Crown.

[97] I am satisfied that the defence has met its onus of establishing that the delay in the retrial is unreasonable. To paraphrase the Court in Jordan, the defence has established that it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. The defence endeavoured to set the earliest possible hearing dates and accepted responsibility for delay when the applicant’s counsel was unavailable. The defence was co-operative and responsive to the Crown and put the Crown on timely notice when delay was becoming an issue. All applications were reasonable and were brought expeditiously.

[98] I note parenthetically that even if I had accepted the Crown’s submission on net delay in relation to the retrial, in these circumstances I would have concluded that the defence had met its onus on the application.

[99] For these reasons, I find that the applicant’s right to be tried within a reasonable time, as protected by s. 11(b) of the Charter, has been infringed and an order will go staying the criminal proceedings against him.

Released: November 23, 2023 Justice L.C. Leitch