Court File and Parties

Court File No.: CR-22-0085-00 Date: 2024-01-10 Ontario Superior Court of Justice

Between: His Majesty The King D. Pierce, for the Crown

- and -

Jett Leishman G. Joseph, for the Accused

Heard: December 20, 2023, at Thunder Bay, Ontario Before: Regional Senior Justice W. D. Newton

Reasons on 11(b) Application

Overview

[1] Jett Leishman was arrested on February 25, 2021, and was charged with sexual assault contrary to s. 271 of the Criminal Code.

[2] His trial is scheduled to proceed before me sitting with a jury on February 12, 2024, approximately 35 months after his arrest.

[3] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a 30-month ceiling for the completion of prosecutions of criminal matters in the Superior Court. Delay beyond 30 months is presumed to be unreasonable barring defence delay or exceptional circumstances. In R. c. Boulanger, 2022 SCC 2, the Supreme Court underscored again that this 30-month ceiling is a “clear line in the sand” when the court upheld a stay of proceedings where the delay exceeded the 30-month ceiling by one month.

[4] As the conclusion of the trial will be more than 35 months from his arrest, Mr. Leishman seeks to have these charges stayed on the basis that the delay is unreasonable and is a breach of his section 11(b) Charter right.

[5] The defence argues that the delay was caused by the Crown’s failure to make timely disclosure.

[6] The Crown argues that the defence had sufficient disclosure to move the matter ahead and that the Defence delayed moving the case forward in the Ontario Court of Justice by requesting a statement that did not exist.

Chronology

[7] Central to this application is the absence of, and then late disclosure, of the complainant’s video recorded statement that was not taken until March 31, 2022, and was not discovered by the Crown nor disclosed to the Defence until September 5, 2023, 17 months later, and six days before the commencement of the first scheduled jury trial.

[8] The following are the significant events, including a summary of court appearances, in the prosecution of this matter:

i. Mr. Leishman is arrested February 25, 2021

ii. Information is sworn March 10, 2021

iii. Defence continuously requesting video statement of complainant:

July 22, 2021 – no disclosure.

August 5 – written disclosure request seeking all video and audio recordings.

August 30 – Defence has not received videotaped interview of complainant, waiting for this disclosure to determine how to proceed.

October 18 – waiting for Crown dates to set counsel pretrial.

November 15 – counsel pretrial set for November 22, Defence waiting for outstanding disclosure.

November 22 – Disclosure – no videotaped statement of complainant.

December 20 – Crown needs to vet disclosure.

December 21 – written disclosure request – video taped statements? “that is usually the normal course in these types of charges and we don’t appear to have any in our file.”

January 20, 2022 – Defence: “But I’d be shocked if there was no videotaped statement in this case…”. Crown: “… there were no videotaped statement from witnesses.” Supplementary report available for disclosure.

iv. March 14, 2022 – Crown elects by indictment.

v. March 31 – video recorded statement taken from complainant.

vi. October 4 – SCJ judicial pretrial – Crown brief served and uploaded late. Defence says complicated because no videotaped interview of complainant so Crown and Defence operating in a vacuum.

vii. June 15 and August 21, 2023 – trial management conferences.

viii. August 28, 2023 – Jury Selection completed.

ix. September 5, 2023 – videotaped statement of complaint shared with new Crown, Mr. Pierce, and then forwarded to Defence counsel.

x. September 6, 2023 – application to adjourn trial set to commence September 11 based on “very late-breaking disclosure of the video statement of complainant”, not opposed by Crown.

xi. February 12, 2024 – second jury trial to commence.

The Law

[9] In its introduction to Jordan, the Supreme Court of Canada emphasized the importance of section 11(b) of the Charter:

1 Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".

2 Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

26 Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as "a fair and balanced criminal justice system simply cannot exist without the support of the community" (Askov, at p. 1221).

[10] However, the Supreme Court also recognized that defence delay and exceptional circumstances sometimes make it impossible for the prosecution to be completed within 30 months and that such delay should be deducted from the overall delay.

[11] Defence delay has two components. The first is delay waived by the defence. The second is delay caused solely by the conduct of the defence. This second kind of defence delay comprises those situations where the accused's acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. [3]

[12] In R. v. Cody, 2017 SCC 31, the Supreme court of Canada commented further on what constitutes defence delay:

28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction". It applies to any situation where the defence conduct has "solely or directly" caused the delay.

29 However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case. For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted.

30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests". Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted. These examples were, however, just that - examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction. [Citations omitted; emphasis added.]

[13] Exceptional circumstances, as described at para. 69 in Jordan, are those that “lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original).

Positions of the Parties

[14] The parties agree that there are no exceptional circumstances in this case.

[15] This is not a complex case. No pretrial applications were required. At most, two Crown witnesses would be called. The trial issue is consent.

[16] The Crown computes the total delay at 1073 days from the swearing of information to the expected end date of the trial.

[17] The Defence computes total delay at 1078 days.

[18] Both counsel compute the “Jordan” ceiling at 912 days.

[19] There has been no express waiver of 11(b) in this case.

[20] The Defence submits that there has been no defence delay with all steps taken legitimately to respond to the charges. Alternatively, if the net delay is below the presumptive ceiling, the Defence argues that the delay is, nevertheless, unreasonable and relies upon R. v. Alli, 2023 ONSC 5829.

[21] The Crown acknowledges that most of the delay from the taking of the statement until the second trial is delay attributable to the Crown. However, the Crown submits that the following periods of delay are attributable to the Defence:

i. July 22, 2021, to August 5, 2021 – disclosure ready but not requested from new counsel – 14 days attributable to Defence.

ii. August 30, 2021, to October 18, 2021 – disclosure request sent for statements that did not exist – 49 days attributable to Defence.

iii. December 20, 2021, to January 20, 2022 – disclosure request again relating to statement that does not exist – 31 days attributable to Defence.

iv. January 20, 2022, to March 14, 2022 – disclosure request again for statement that does not exist – 53 days attributable to Defence.

v. March 14, 2022, to April 25, 2022 – Defence adjournment to seek instructions as to mode of trial – 42 days attributable to Defence.

[22] The Crown calculates this Defence delay at 189 days resulting in a net delay of 884 days, 28 days below the Jordan ceiling.

[23] The Crown also argues that the failure of the Crown to formally elect to proceed by indictment before March 14, 2022, should not excuse the Defence delay as the Charge Screening Form dated July 22, 2021, which was provided to Defence counsel on August 18, 2021, indicates that the Crown elects to proceed by indictment.

[24] In reply to this argument, the Defence states that until the formal election is made, the election stipulated on the Charge Screen Form is not binding on the Crown.

Analysis

Total Delay

[25] I calculate total delay at 1077 days from the date the information was sworn to the anticipated end of the trial, February 20, 2024, taking into account pre-charge conferences and that the jury would likely be charged on February 19 or 20th, 2024.

Defence Delay

[26] As stated in Jordan and Cody, Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay and should not be deducted.

[27] I note that no complaints with respect to the Defence delay were made at any appearance in the Ontario Court of Justice or in this court until the Crown response to this application.

[28] I find that there were no deliberate and calculated defence tactics aimed at causing delay in this case, no frivolous applications, and no frivolous requests. I agree with the Defence that, until the formal election from the Crown, the Defence could not elect mode of trial.

[29] The Crown seeks to attribute delay to the Defence because of the repeated requests by the Defence for the videotaped statement of the complainant that did not come into existence until approximately 13 months after the alleged incident. That the absence of a videotaped statement from the complainant was unusual, which was borne out by the fact that a videotaped statement of the complainant was taken after the Crown election. The reasonable inference to be made in this case is that the videotaped statement was taken at the direction of the Crown who realized that, as this matter was proceeding to trial, a videotaped statement would be an important part of the Crown case and Crown disclosure. I conclude that the repeated requests for the videotaped statement were Defence actions legitimately taken to respond to the charges and do not amount to Defence delay.

[30] With respect to the five specific periods identified by the Crown as constituting Defence delay, I make the following additional observations:

i. July 22, 2021, to August 5, 2021 - disclosure ready but not requested from new counsel. This is a delay of 14 days and is not delay that can be described as a deliberate and calculated defence tactic aimed at causing delay. This would constitute “normal” delay that was accounted for in the Jordan ceiling. I would not categorize this as Defence delay.

ii. August 30, 2021, to October 18, 2021 - 49 days, disclosure request for statement that did not exist. This was not the only disclosure item that was sought. Information was also sought with respect to when certain handwritten documents were created. As stated, I find that the requests for the video statement were legitimately taken to respond to the charges. In any event, as additional disclosure was outstanding, I would not categorize this as Defence delay.

iii. December 20, 2021, to January 20, 2022 – 31 days, Crown admits to disclosure packages in need of vetting. This is not Defence delay.

iv. January 20, 2022, to March 14, 2022 - 53 days, supplementary report for disclosure to come. This is not Defence delay.

v. March 14, 2022, to April 25, 2022 - 42 days, Defence adjourns to seek instructions as to mode of trial. Formal election to proceed by indictment made on March 14. No objection by the Crown but court notes that “this matter is getting dated… So next court date elections will be made.” No evidence was given that this was a deliberate and calculated defence tactic aimed at causing delay. I would not categorize this as Defence delay.

Net Delay

[31] As I have concluded that there is no defence delay, the net delay is 1077 days, or 165 days above the Jordan ceiling.

[32] If I am incorrect that the delay described in para. 30, sub i. or v. is not defence delay, then the net delay would be 1021 days or 109 days above the Jordan ceiling.

Failure to Discover/Disclose Video Statement in the Superior Court of Justice

[33] As noted, the video statement of the complainant was taken on March 31, 2022, after the Crown election, but was not disclosed to the Defence for 17 months, which was six days before the commencement of the trial and after the jury had been selected. A reasonable inference is that the police took this video statement from the complainant at the direction of the Crown.

[34] Mr. Leishman was committed to stand trial on April 25, 2022, but the indictment was not signed until June 22, 2022. No explanation was offered for this delay of almost two months.

[35] Thereafter, there were six appearances in this court prior to the adjournment of the trial. Four of those appearances were substantive: a judicial pretrial, two trial management conferences, and jury selection. Nevertheless, the Crown, did not discover the video statement for 17 months after it was created.

[36] At the pretrial held before Pierce J. on October 4, 2022, six months after the video statement was taken, Justice Pierce chastised the Crown, not Mr. Pierce, for the late delivery of the Crown’s material which had been served on Defence counsel just after midnight on the morning the pretrial was to be held. Justice Pierce gave Defence counsel the option of adjourning the pretrial because of this late filing, but the Defence elected to proceed. This is not conduct demonstrating delay-causing action or inaction. At the conclusion of the pretrial, trial dates were set for the September 2023 jury sittings. The absence of a video statement from the complainant was raised at the pretrial.

[37] Two trial management conference were held in June and August 2023, which addressed issues of witnesses, trial length and jury selection. The jury was selected on August 28, 2023. Mr. Pierce was given carriage of the file and it was Mr. Pierce who discovered that a video statement had been taken from the complainant, and promptly gave notice and disclosed the video statement to the Defence on September 5, six days before the commencement of the trial.

[38] The trial was adjourned and the Jordan ceiling was exceeded. As noted at para. 112 in Jordan:

Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary.

[39] In the circumstances, it is the Crown who is accountable for delay. But for the failure of the Crown to discover/disclose a statement for 17 months and upon the eve of trial, this case would have been tried.

[40] If I am incorrect that Defence delay does not bring this case below the Jordan ceiling, I find that Mr. Leishman has met his onus of demonstrating that the delay in getting to trial caused by the failure of the Crown to disclose the video statement for 17 months is unreasonable.

[41] As noted by Forestell J. at para. 9 in Alli:

Delay that falls under the presumptive ceiling may be unreasonable if the defence can demonstrate: (i) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (ii) that the case took markedly longer than it reasonably should have: Jordan, at para. 82.

[42] I am satisfied that the Defence took meaningful steps to expedite the proceedings including the persistent quest for the complainant’s video statement. The Crown’s failure to discover and disclose the statement added five months to the end of trial which is, in this case, markedly longer than it should have taken.

Disposition

[43] In the circumstances of this case, the delay is unreasonable and Mr. Leishman’s 11(b) Charter right has been breached.

[44] This application is allowed and the charge against Mr. Leishman is stayed.

“Original signed by”

The Hon. Justice W.D. Newton, R.S.J.

Released: January 10, 2024

Footnotes

[1] 2016 SCC 27 [Jordan].

[2] 2022 SCC 2 [Boulanger].

[3] Jordan at paras. 61, 63.

[4] 2017 SCC 31 [“Cody”].

[5] 2023 ONSC 5829 [“Alli”].