COURT FILE NO.: CR-22-50000477-0000
DATE: 2024-02-09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Teshome Adane
BEFORE: Justice S. Nakatsuru
COUNSEL: Michael Bartlett, for the Applicant Simon King, for the Respondent
HEARD: February 9, 2024
s. 11(b) ruling
A. Overview
[1] Teshome Adane faces a sexual assault trial scheduled to commence March 11, 2024, for 6 days. This is his second trial date. His first jury trial before Maxwell J. ended in a mistrial on October 18, 2023. The mistrial was granted because the Crown failed to disclose the names and contact information of two potential witnesses who had relevant knowledge of the sexual assault.[^1] It turned out that a police officer had their identity and telephone numbers soon after the complainant had given her statement to the police. Despite early requests by the defence for disclosure of any information related to civilian witnesses, these police notes were not disclosed until the complainant completed her examination-in-chief. Justice Maxwell found that a mistrial was the only remedy capable of addressing the prejudice and unfairness caused to the defence by this late disclosure.
[2] The applicant renews his Charter application under s. 11(b) for a stay of proceedings on the grounds that he was denied his right to a trial within a reasonable time. I say "renew", because the applicant's first s. 11(b) application was denied on October 6, 2023, by Spies J.: R. v. Adane, 2023 ONSC 5633. Justice Spies found that the total operative delay to be 27.53 months, falling below the presumptive ceiling of 30 months set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Additionally, she declined to stay the proceedings though it fell below the presumptive ceiling, because the applicant had failed to show the case took markedly longer.
[3] The history of the proceedings prior to the first trial has been comprehensively covered by Spies J. I do not intend to repeat it in these reasons.
[4] Before me, the applicant argues that knowing what he knows now, that important disclosure had not been made by the Crown, I should revisit Spies J.'s decision in designating certain periods as defence delay. I will not for two reasons. First, it is not my role to disturb the findings or conclusions made by Spies J. If unsatisfied with those findings or conclusions, the applicant must resolve his complaints in a different forum. Second, the history of the proceedings must be assessed based upon what really happened, the reality of the case, rather than on a series of "what if's". The reality of this case is that the failure to disclose the two potential witnesses had no material effect on any delay until the mistrial application. Said differently, this nondisclosure does not cast any doubt on Spies J.'s reasoning.
[5] Therefore, the focus of the s.11(b) analysis is on the period from the anticipated completion of the first trial to the anticipated completion of the second trial. (October 23, 2023, to March 18, 2024): a period of 4 months 26 days. If that period is added to the 27.53 months, the remaining delay would be 32 months 11 days and a stay of proceedings should follow.
[6] Perhaps unsurprisingly given the jurisprudential developments since Jordan, it is not a matter of such simple math. The focus of the contest on this application is what should be considered defence delay.
B. The apportioned defense delay
[7] The Crown submits that any delay after the offering of the first available trial date of November 27, 2023, should be considered defence delay due to the unavailability of defence counsel. After subtracting the defence delay from the total delay caused by the mistrial, the trial would remain within the 30-month presumptive ceiling.
[8] I disagree with the Crown approach. Very fairly, Mr. King did not greatly press this in oral argument. Such a "bright-line" approach to the calculation of delay has been rejected by the authorities: R. v. Hanan, 2023 SCC 12 at para. 9. In her initial s. 11(b) decision, Spies J. too rejected such a bright-line approach (at para. 85). Very recently, Schreck J. thoroughly canvassed the relevant authorities in R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-54 when dealing with the adjournment of a trial that resulted from the lack of a judge to hear the case. In following the authorities, I intend to apportion the delay caused by the mistrial in a manner that is fair and reasonable given all the circumstances and the contextual factors of this case.
[9] Taking a bird's-eye view of the case, the starting point is the fact that the delay caused by the mistrial was the result of police negligence resulting in a failure of Crown disclosure obligations. The disclosure was only made after the examination-in-chief of the only Crown witness in a sexual assault jury trial. Had proper disclosure been made before the first trial, this case would have been completed within the Jordan timeframe: R. v. Belle, 2018 ONSC 7728 at para. 43; Bowen-Wright at para. 42-45.
[10] It is noteworthy that the total delay was already significant. Even after deducting defence delay and exceptional circumstances, this case while perhaps not at the very border of stay territory, was still at 27.53 months. There was not a lot of leeway if something went awry at the first trial. Consequently, the prosecution and the police should have done their utmost to avoid things such as what happened in this case. I emphasize that this was not surprise disclosure by the complainant while she was giving her evidence at trial. The failure to disclose and the consequent mistrial was a product of police negligence. Furthermore, the two witnesses were not peripheral witnesses; especially "Jordana", who was the bartender who served the complainant and is said to have helped her get to the applicant's car. Even from the Crown's perspective, she was potentially a significant witness that could testify about the complainant's state of intoxication in a case where the capacity to consent was a key issue. It is unacceptable that the police would not have ensured this disclosure was brought to the attention of the Crown especially in light of the specific defence requests for such disclosure.
[11] Another contextual factor is that considerable effort went into the attempts to secure a new priority trial date after the mistrial. Certainly, the Crown made serious efforts to get an early date. Equally, I have no reason to believe that the defence tactically delayed the setting of another trial date or acted unprofessionally. I accept what is set out in the email thread between Crown and defence counsel as indicative of sincere efforts to secure trial dates and the true availability of the parties.
[12] While as early as October 18, 2023, by way of email, the Crown offered trial dates commencing November 27, December 11[^2], 2023, and January 2, 2024, I do not agree with the Crown position that anything after these trial dates should be considered defence delay due to the unavailability of the defence. Given the relatively quick turn around of the first two trial dates being offered, defence counsel cannot be faulted for his schedule being unable to accommodate it: Bowen-Wright at para. 48. Moreover, the disclosure request made by the defence was still outstanding and it is not unreasonable that the defence might need some time to conduct their own investigations.[^3] There is no unyielding onus on the defence to take further steps in the proceedings in the absence of a reasonable opportunity to review and investigate new disclosure: R. v. D.A., 2018 ONCA 96, at para. 13.
[13] After a few further email exchanges that occurred on October 18, 19, and 24 between Crown and defence, the defence provided their availability dates on October 25. In addition to several dates in early 2024, the defence offered three dates that were within the Jordan deadline. These dates were November 28, December 19, and December 27. This offer is supportive of my finding that the defence acted with due diligence. The January 2, 2024, date[^4] offered by the Crown was also not available to the defence though the defence offered January 15 or 29, 2004, as available dates to commence the trial.
[14] The defence dates offered within the Jordan deadline were not available to the court. Institutional reasons seem to be behind why the dates offered by the defence were not suitable. The Crown explained this in an October 27 email. The Crown advised that the November 28 dates commenced on a Tuesday and the trial needed to be set on a Monday.[^5] The December defence dates surrounded the holidays and did not commence on the Monday so they too could not be set. In other words, the court was not "available" to set those dates offered by the defence.
[15] Given the totality of these circumstances, the defence should not bear responsibility for the delay caused from its failure to accept the Jordan compliant trial dates offered to it by the Crown.
[16] Nevertheless, I find that some of the delay to the March trial date must be apportioned to the defence. Pivotal to my apportionment of the delay is the email exchanges on October 27 to November 9, 2023. On October 27, when the date of January 29 was offered by the Crown, the defence wrote back saying that he could not guarantee that date as it was dependent upon another trial collapsing though he expected that to occur. However, the defence wrote the "other week that works in January is January 15." The Crown responded that same day advising that she would see if other Crown offices had January 15 available and that they could set a trial date on the next occasion. On November 7, the Crown wrote that January 15 was in fact available. On November 9, the defence wrote back advising that January 15 was no longer available and settled for March 11, the present trial date, which had previously been discussed as a suitable date.
[17] Given the contextual matters noted above and this series of email exchanges, I find it fair and reasonable that any delay after January 15 should be considered defence delay. The defence had clearly offered this date on October 27 and knew that the Crown was looking to seek its availability from other local Toronto Crown offices. Despite knowing that, the defence did not hold that week open. Eleven days passed before the Crown got back to the defence; not an unduly long period of time for the defence to keep those dates available. Nor did the defence reach out to the Crown earlier to inquire whether it had secured that week when the defence was considering scheduling another matter into that week. In these circumstances, any delay after the completion of the anticipated six-day jury trial commencing January 15 is defence delay and must be subtracted from the total delay.
[18] This leaves a net delay of 30 months 16 days. The Crown does not argue that there are any exceptional circumstances since the mistrial. I agree. Thus, the delay is over the presumptive ceiling.
C. Disposition
[19] A s. 11(b) violation has been proven. Therefore, a stay of proceedings is ordered as the appropriate remedy under s. 24(1) of the Charter.
Justice S. Nakatsuru
Released: February 9, 2024
[^1]: To be clear, neither Mr. King nor any other assistant Crown Attorney was responsible for this failure of Crown disclosure. Rather the the Officer in Charge discovered writing on the reverse side of a single page of disclosure which he had failed to provide to the Crown. The writing on the back of the page contained the first names of two potential civilian witnesses, "Jordana" and "Ariana", along with a phone number for each, none of which had been previously disclosed.
[^2]: By October 26, the December 11 trial date was no longer available.
[^3]: Indeed, on this application, the defence renews its request for disclosure arguing that it is still in the same position it was on the date of the mistrial. While I view that the addresses of the witnesses need not be disclosed, I see no reason why their full names and some form of contact information cannot be disclosed especially if undertakings for the latter are provided. Given my conclusion on the s. 11(b) application, it is unnecessary to resolve this issue.
[^4]: Even if this trial date was accepted, the completion of the six-day trial would take the case beyond the Jordan date of January 6, 2024.
[^5]: I feel obliged to state the following. The practice seems to be that the Crown secures available dates which are then later confirmed by the trial coordinator. Thus, initially, the Crown bears primary responsibility in setting the dates. The necessity to start the trial on a Monday does not seem to be written in stone. This seems to be belatedly recognized by the Crown in an email on November 9, 2023, when the Crown suggested the applicant could ask leave of the Court to start the trial on a Tuesday rather than a Monday, thus making November 28 or even the December dates a potential date to commence the trial. In my view, this possibility was not just the applicant's responsibility but on both parties. Neither seems to have taken advantage of it. The case was spoken to in Practice Court and this particular difficulty in scheduling was not raised. It was a lost opportunity.