COURT FILE NO.: CR-23-11407790 DATE: 2024/10/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Matthew Pecore Applicant
Counsel: Alexandre Riopelle, for the Crown Vanessa Garcia, for the Applicant
HEARD: September 17, 2024
REASONS FOR DECISION RE SECTION 11 (B) APPLICATION
Parfett J.
[1] The Defendant, Mr. Pecore is charged with several counts arising out of an allegation of sexual assault. Mr. Pecore asks the court to stay his charges on the basis that his right to a trial within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms has been breached.
Background
[2] The complainant and Mr. Pecore were co-workers. On May 27, 2022, they both attended a bar after an office party. Sometime in the early hours of the next morning, the complainant woke up. He was disoriented, in pain and in a state of undress. He believed that he had been sexually assaulted but had no memory of leaving the bar. He had some scattered memories of an assault. Swabs were taken and sent for analysis. The accused’s DNA was identified on the complainant’s underwear.
[3] The Information in this matter was sworn on April 2, 2023, alleging a single count of sexual assault.
[4] On August 15, 2023, the complainant contacted the investigating officer to state that he had some new memories of events. A date for an interview was set for August 17 but that date was cancelled by the complainant.
[5] Ultimately, on October 17, 2023, the complainant was reinterviewed, and that statement was disclosed to defence counsel shortly afterward. The complainant gave a detailed account of what happened to him on the night of May 27, 2022. As a result of the new statement, further charges were laid against the accused.
Procedural history
[6] As noted earlier, the information was sworn on April 2, 2023. The matter proceeded through the remand stage and three days were set for trial from July 22-24, 2024.
[7] However, the new statement by the complainant changed the complexion of the case significantly. Both counsel wanted to bring certain pre-trial motions and it was agreed by both parties that the time set aside for trial was no longer adequate. The nature of the pre-trial motions was such that there needed to be time set aside between the motions for the trial judge to consider their decision.
[8] The upshot was that new trial dates were set for December 2-6, 2024. These dates were approximately two months past the Jordan ceiling for matters proceeding in the Ontario Court of Justice. The Crown filed a direct indictment, and the matter was moved to the Superior Court of Justice.
[9] Trial dates have been set in the Superior Court for June 30 to July 9, 2025. The total elapsed time between the date the Information was sworn, and the end of the trial is 27 months and 7 days.
Legal Principles
[10] R. v. Jordan, 2016 SCC 27 provides a time within which trials should be concluded. In the Superior Court that time period is 30 months. This timeframe remains appropriate even where the matter is in Superior court because of a direct indictment. R. v. Barra, 2021 ONCA 667 at para. 30.
[11] The analytical framework to be used is as follows:
- Calculate the total delay, which is the period from when the Information was sworn to the anticipated end of the trial;
- Subtract any defence delay;
- If the net delay (total delay less defence delay) exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances are either discrete events or a particularly complex case;
- Subtract the delay caused by exceptional circumstances; and
- If any remaining delay falls below the presumptive ceiling, the onus is on defence to demonstrate that the delay is unreasonable. R. v. Coulter, 2016 ONCA 704 at paras. 34-41.
[12] In the present case, counsel agree on the total delay – 27.25 months.
Analysis
[13] The Crown concedes that none of the delay can be characterized as defence delay but argues that some of the actions of Defence counsel cannot be characterized as expediting the proceeding.
[14] Defence argues that given the delay falls below the presumptive ceiling, they cannot point to exceptional circumstances to explain the delay.
[15] Regardless of how the effect of the new disclosure is characterized, whether as institutional delay or exceptional circumstances, it is irrefutable that the disclosure had a significant impact on the process. Both counsel decided that pre-trial motions were now required and the length of the trial increased. Consequently, the trial date had to be changed.
[16] Crown points to Defence counsel’s failure to approve a short timeline for the pre-trial motions as evidence that they did not expedite proceedings. In my view, the timeline ultimately established was reasonable in the circumstances.
[17] The main issue to be decided in this case is whether Defence counsel has demonstrated that the case has taken markedly longer than it reasonably should have.
[18] What constitutes reasonable time depends on the nature of the case in question. The more complex the case, the more time it can take to get to trial. As noted in Jordan at paras. 89 & 91:
In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case.
[19] Defence has also argued that the Crown’s decision to prefer the indictment was done to avoid the consequences of exceeding the presumptive ceiling of 18 months set for the provincial court. While counsel accepts that the 30-month ceiling applies regardless of the reason for preferring the indictment, she argues that the consequence of moving the trial to the Superior Court resulted in an increase in the delay and that fact should be considered by the court in determining whether the case has taken markedly longer than it should have to get to trial.
[20] This case was a very straightforward case, and it was proceeding without any hitches until August 2023. Once the complainant advised police that he now had memories of the events of the night of the assault, the complexion of the case changed significantly. That fact inevitably caused delay.
[21] It is troubling that it took the investigator two months to finally reinterview the complainant, but it is not possible to say – as Defence counsel has argued the court should say – that but for that delay, the trial would have been heard within the presumptive ceiling in provincial court.
[22] In Jordan at paras. 20, 22-23 & 25, the court noted:
Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.
Of course, the interests protected by s. 11(b) extend beyond those of accused persons. Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice.
Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials. Delay aggravates victims’ suffering, preventing them from moving on with their lives.
Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but ma affect the public interest in the prompt and fair administration of justice”. Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice. Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures.”
[23] In short, deciding whether a trial has taken too long requires a balancing of all the interests at play.
[24] In the present case, the allegations are serious. The complainant has also had to wait longer than initially expected for the trial to take place. Defence counsel has provided information concerning the prejudice that the accused has experienced in this matter. That prejudice is the type to be expected in a case of this nature.
[25] This matter proceeded through the provincial court without issues until the complainant was reinterviewed because of his new memories. As noted earlier, that fact inevitably caused delay, but it is not the type of delay that could be said to be the fault of any of the parties. Once the matter was moved to the Superior Court, it again proceeded without any issues and both parties made every effort to get the matter to trial as quickly as possible. In all the circumstances, I cannot find that the delay occasioned in this matter is markedly unreasonable.
[26] The application is dismissed.
Parfett J. Released: October 15, 2024