R. v. Ottewell, 2020 ONCJ 623

CITATION: R. v. Ottewell, 2020 ONCJ 623 DATE: November 30, 2020 Information #19-1140 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MORGAN WILLIAM OTTEWELL R U L I N G BEFORE JUSTICE OF THE PEACE W. ROJEK on NOVEMBER 30, 2020, at GUELPH, Ontario APPEARANCES : M. Dolby (By Teleconference) Counsel for the Crown M. Murdoch (By Teleconference) Counsel for Mr. Ottewell FRIDAY, NOVEMBER 30, 2020 THE COURT: Very well, thank you, good morning. This is Justice of the Peace Rojek presiding over proceedings in courtroom #1 in Provincial Offences Courthouse in Guelph. We are on-line, on-record and on speaker phone.

And Madam Crown, Mr. Crown, can I have your name, please. MS. DOLBY: Yes, good morning, Your Worship, it’s Dolby, initial ‘M’ for the Crown. THE COURT: Very well, thank you. And do we have defence on-line? MR. MURDOCH: Yes, good morning, Your Worship, it’s Mike Murdoch here for Mr. Ottewell. Mr. Ottewell is not attending virtually today. That’s my instructions from him and I am fully instructed otherwise to proceed. THE COURT: Very well, thank you. I’m prepared to rule unless you have any other motions or anything else to say before...Madam Crown? MS. DOLBY: Nothing further from the Crown, thank you.

THE COURT: Mr. Murdoch? MR. MURDOCH: No, thank you, Your Worship.

THE COURT: Very well, thank you. R U L I N G ROJEK, J.P. (Orally): The defence brought initially three applications in this case –- An application for the stay of proceedings on the basis that the defendant’s right to trial within a reasonable time as guaranteed by

Section 11(

b) of the Charter of Rights and Freedoms has been denied. An application to stay proceedings on the basis that the defendant has been subjected to a denial of the rights contemplated by

Section 7 of the Charter of Rights and Freedoms . An application pursuant to

Section 35 of the Provincial Offences Act and Sections 7 and 11(

d) of the Charter of Rights and Freedoms for the ordering of the, with respect to a charge against the defendant and disclosure of all the “fruits of the investigation”, and an order for counsel for Mr. Ottewell to have access to all materials in possession of the Crown and investigating officers. The defence requested during proceeding on the 16 th day of November 2020 that the Court would not deal with the second application (based on

Section 7 of the Charter of Rights and Freedoms ) until the end of trial and therefore, only two remaining applications were subject of the November 16, 2020 motion hearing. The Crown opposed all three applications. The Crown agreed to postpone hearing of the

Section 7 application until trial. HISTORY OF THE PROCEEDINGS BASED ON INFORMATION ENDORSEMENTS AND PROVIDED TRANSCRIPTS Mr. Morgan Ottewell has been charged with the offence of careless driving causing the death of Wade Al Brodie; allegedly committed on the 19th day of November 2018. On the 5 th day of December 2018, Mr. Ottewell was informed by the investigating officer he would be charged as the result of the accident. On the 15 th day of January 2019, the CFS report was completed.

On the 22 nd day of January an email was received by the investigating officer advising that the deceased had methamphetamine in his system. It seems from that email it was not clear for the coroner who caused that collision. A

Part III information had been sworn on the 20 th day of February 2019. The defence made a request for disclosure on March 1 st , 4 th , 8 th , 11 th and 25 th , 2019. The first appearance was set for the 3 rd day of April 2019. The defence requested disclosure, about the disclosure provided.

The court made reference to Gandhi Application to expedite disclosure process. I will quote from R. v. Gandhi where the Superior Court of Ontario stated in paragraph 33 –-[I quote] The judicial pre-trial, or JPT, is arguably the most important tool of modern case-management.

When faced with a case like this with disclosure problems, an experienced and capable judge can do at least three things to move it forward. --First, give the officer in charge fixed deadlines for producing missing disclosure and keep bringing the officer back to ongoing JPT appearances until the deadlines are met. --Second, advise and mediate between the parties as to which requests for further disclosure are reasonable (and are likely to be ordered by a court) and which requests are unreasonable (and are likely to be denied by a court).

And finally, order that the parties to set a date for trial or preliminary inquiry, even though some further disclosure may still be outstanding, once a certain point in the process has been reached. [end of quote] The matter has been adjourned until the 1st day of May 2019 to obtain disclosure. On the 3 rd day of April 2019 a screening form was received by the defence. On 8 th day of April 2019 a request for disclosure was sent to the Crown’s Office. On the 1st day of May 2019, the matter has been adjourned until the 5 th day of June 2019 to obtain disclosure.

The defence indicated they wrote a detailed and comprehensive request for disclosure which was received on April 8 th , 2019 and that there was no response. The Court again made a reference to Gandhi Application. On the 20 th day of May 2019 defence requested disclosure. The Crown responded informing that a note was sent in SCOPE. On the 5 th day of June 2019 the matter has been adjourned until the 21 st day of August 2019 to complete disclosure. The defence indicated to the Court that there was not complete disclosure provided.

The Crown responded that the request for additional disclosure was sent to police but there was no response. The Court inquired whether a Crown pre-trial was held. The defence indicated that they did not have full disclosure and that the defendant was very keen on moving this case forward. The defendant expressed willingness to set trial date at the next court appearance. On the 13 th day of June 2019 a Technical Traffic Collision Investigative Report was received by the defence. On the 29 th and the 31 st day of July 2019 the defence requested disclosure.

The defence requested a toxicology report, coroner’s report and EMS report. On the 7 th day of August 2019 the presence of methamphetamine in the deceased’s system was disclosed to the defence. The Crown advised they would were on disclosure.

On the 9 th day of August 2019 some disclosure was received by the defence. On the 21 st day of August 2019 the matter was adjourned until the 8 th day of November 2019 for a judicial pretrial. The defence again raised the issue of lack of full disclosure. The Court again made a reference to Gandhi Application and possibility of ordering the officer-in-charge to attend so lack of complete disclosure could be examined. On the 29 th day of October 2019, the 9-1-1 call recording was received by the defence.

On the 6th day of November 2019 disclosure regarding toxicology, EMS, post mortem and some of the officers’ notes were received by the defence. On the 8 th day of November 2019 the matter was adjourned until the 20 th day of December 2019 for a Gandhi Hearing. The Court ordered two officers involved in the investigation to attend on the 20 th day of December 2019. The Court indicated Jordan timelines. On the 13 th day of November and the 19 th day of December 2019, the defence requested the disclosure. The defence also asked to have the officers attend court on the 20 th day of December 2019 with relevant notes.

On the 20 th day of December 2019 one officer attended without her notes; the other officer did not attend. The matter was adjourned until the 7 th day of February 2020 for judicial pretrial continuation. The officer who did not attend, was not notified by the Crown of the court date. The defence indicated a desire to obtain Information to Obtain, probably on the Search Warrant, which was declined by a justice of the peace. The parties identified three witnesses who were OPP officers and one civilian witness. The Crown did not have the

schedule of one of the officers who works outside of the Wellington County jurisdiction. The Court did not have that

schedule either. The Court brought the Jordan issue up again. On the 23 rd day of December 2019 some disclosure was received by the defence. On the 22 nd day of January 2020 the defence met with the Technical Traffic Collision Investigating officer. On the 7 th day of February 2020 the matter was adjourned until the 6 th day of March 2020 for continuation of the judicial pretrial. It has been brought to the Court’s attention that some additional disclosure was provided to the Crown and some time was needed to review the received material. On the 5 th day of March 2020 the TTCI Report was received by the defence.

On the 6 th day of March 2020 the matter was adjourned until the 3 rd day of April 2020 for continuation of the judicial pretrial and Gandhi Hearing. One of the investigating officers was ordered to attend. The court observed that an updated TTCI Report requested on the 12 th day of February 2020, probably was not completed. Initial trial time estimate was noted by the court to be four days and suggested the parties should communicate with the Trial Coordinator to start the process of arranging trial dates.

As the result of the Chief Justice Order dated the 17 th day of March 2020, all matters before Provincial Offences Court scheduled between the 16 th day of March 2020 and the 3 rd of April 2020 have been adjourned until a later date. On the 24 th day of March 2020 a number of admissions were made by the defence in a pre-trial memorandum.

On the 6 th day of April 2020 information was provided to the defence that “Art Williams from our team” was working on the black box data and disclosure would be provided. On the 13 th day of May 2020 the defence requested from Trial Coordinator setting a JPT date for 12 th day of June 2020 and to prepare trial dates. This matter was then placed on the court docket on the 12 th day of June 2020, and has been adjourned until the 4 th day of September 2020 for judicial pretrial continuation. The defence expressed willingness to set trial date. The court observed that that was not possible due to the pandemic.

The defence indicated that the disclosure was not completed by the Crown. On the 2 nd day of September 2020, nine pages of disclosure was received by the defence. On the 4 th day of September 2020 the matter was adjourned until 2 nd day of October 2020 for the continuation of judicial pretrial. The issue of lack of complete disclosure was raised by the defence. It was brought to the Court’s attention that an email from the Coroner’s Office dated January 22, 2019 was not disclosed to the defence for some time.

There was an indication of a second TTCI report and of the vehicle recall, impact of air bags and possibility of calling Daryl Mayers from the Centre of Forensic Sciences. Information that Art Williams continues to work on the file was confirmed. On the 17 th day of September 2020 the defence offered any assistance to the trial coordinator to set trial dates and asked for an early date. On the 2 nd day of October 2020 the matter was adjourned until the 13 th day of November 2020 for judicial pretrial continuation.

The dates of March 8 to 12, inclusive, 2021 have been prearranged as trial days but not formally confirmed, and the matter has been adjourned until November 16, 2020 for the motion hearing. The defence sent an email to the Trial Coordinator saying the defence wished to assist in setting trial dates. The Crown did not contact Trial Coordinator to start the process of setting trial dates. The Court learned also that there was another TTCI Report being prepared but it was not available. The defence requested one day to be set for a motion hearing prior to actual trial dates to argue motions.

On the 20 th day of October 2020 materials were filed. On the 13 th day of November 2020 the matter was adjourned until the 16 th day of November 2020. (There was no transcript provided from November 13, 2020 court appearance). November 16, 2020 was the motion hearing day and the matter was adjourned until November 30, 2020 for a decision. The Court was advised that the days of March 8-12, 2021 are still available for the trial in this matter. The defence brought to the Court’s attention that there is still some disclosure outstanding.

The Crown confirmed that there is some disclosure which is expected to be provided to the defence. The Crown concedes that there is no delay attributable to the defence. The Court considered case law provided by both parties –

- R. v. Stinchcombe, [1991] 3 S.C.R. - R. v. McNeil, 2009 SCC - R. v. Jordan, 2016 SCC 72 - R. v. Coulter, 2016 ONCA - R. v. Gandhi, 2016 ONSC 5612 - R. v. McManus, 2017 ONCA 188 - R. v. Cody, SCC 31 - R. v. Faulkner, 2018 ONCA 174 -R. v. K.J.M., 2019 SCC 55 - R. v. Drummond, 2020 ONSC 5495 - R. v. Nguyen, 2020 ONCA 609 The Court has also been provided with the transcript of the September 4, 2020 proceedings ANALYSIS The defence and the Crown provided Court with written and oral submissions.

Two issues are subject of Court’s deliberation: -- the first is the delay of proceedings. -- the second is lack of complete disclosure. These two issues are, however, connected to each other. I will analyze more detailed information provided to the Court with respect to both issues. The total time between swearing the Information and possible trial dates is 24 months and 21 days. THE DEFENCE DELAY There was no waiver

Section 11 (

b) rights by the defence. It was agreed by the Crown that there was no defence delay in these proceedings. There was an unexpected COVID-19 related courts’ closure imposed on March 17, 2020. Proper calculation of the delay under the Jordan regime must take into consideration two situations.

One - where delay is over 18 months in proceedings in the Ontario Court of Justice and 30 months for proceedings before the Superior Court of Ontario. In that situation, a stay is expected but the Crown has the right to demonstrate a longer time was necessary due to exceptional circumstances. Exceptional circumstances are discrete and unexpected events. It is a fact that due to the pandemic, Provincial Offences Courts were closed in mid-March 2020. It is the reason why the April 3, 2020 court appearance did not take place and this matter was adjourned until June 12, 2020. This amounts to two months and nine days.

I am considering the approach taken by Supreme Court of Canada in R. v. Jordan , paragraph 70 [I quote] -- It is not enough for the Crown, once the ceiling is breached, to point to past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications or resorting to any other appropriate procedural means.

The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps to avoid the delay. In R. v. K.J.M. the Supreme Court of Canada following Jordan decision stated – [I quote], paragraph 84 , stated succinctly -- If we are to make the culture of complacency towards delay identified in Jordan, a thing of the past, all criminal justice system participants must take a proactive and cooperative approach with a view to fulfilling

Section 11( b )’s important objectives (see Jordan , at para. 5). While this principle certainly applies in adult cases, it applies with even greater force in youth cases. [end of quote] The unexpected COVID-19 pandemic surprised most of us. The closure of the courts disrupted all the proceedings before Provincial Offences Courts. The Crown would have no means to remedy this closure. However, when I review the transcript of the June 12 th , 2020 appearance, it is obvious that the disclosure was still incomplete.

I will subtract this period from calculation of delay following decision of the Superior Court of Justice in R. v. Drummond . The court stated in paragraph 78 [I quote]-- I am satisfied that the delay during the period from April 2 nd , 2020 to June 2 nd , 2020, resulted from the COVID-19 pandemic and that the Crown could not have reasonably remedied this delay. This two-month period should be subtracted from the 34 months period of remaining delay. [end of quote] It will be explained in more detailed form in a later part of this decision. The Supreme Court of Canada provided a new regime in the R. v.

Jordan ruling to deal with delay under

Section 11(

b) Charter of Rights and Freedoms applications. [I quote] -- At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the Superior Court, or cases going to trial in the Provincial Court after a preliminary inquiry. [end of quote] If the total delay from the charge to the actual or anticipated end of trial, minus defence delay, exceeds the ceiling, then the delay is presumptively unreasonable.

To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable, and a stay will follow. If the total delay of the charge to the actual or anticipated end of trial, minus defence delay, or a period of delay attributable to exceptional circumstances, falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.

To do so, the defence must establish that – ( 1 ) It took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and – ( 2 ) The case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases. [end of quote] The Crown relies in their response on R. v. Coulter which providing steps on how to apply Jordan regime. [I quote] – Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (as indicated Jordan , at para. 47).

Subtract defence delay from the total delay, which results in the “Net Delay” ( Jordan , at para. 66, page 11). Compare the net delay to the presumptive ceiling ( Jordan , at para. 66). If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47). It cannot rebut the presumption, a stay will follow (as in Jordan , para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71).

Subtract delay caused by discrete events from the net delay, leaving the “Remaining Delay” for the purpose of determining whether the presumptive ceiling has been reached. ( Jordan , para. 75). If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. ( Jordan , at para. 80). If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. ( Jordan , para. 48). [end of quote.

This approach was applied in the Court of Appeal for Ontario decision, R. v. McManus , paragraphs 20 to 24 . THE JORDAN FRAMEWORK Following argument of the appeal, the Supreme Court released its decision in R. v. Jordan , 2016 SCC 27 , 398 D.L.R. (4th) 381 , setting out a new framework for determining

Section 11(

b) applications. The Supreme Court set a presumptive ceiling of 30 months of delay for cases proceeding to trial in the Superior Court, beyond which the delay is presumptively unreasonable -–[ Jordan , at paras. 4 and 46] . The Crown may rebut this presumption by establishing exceptional circumstances – [ Jordan , at para. 68] .

The first step is to calculate the total delay from the charge to the actual or anticipated end of trial, subtracting any defence delay to arrive at the “net delay” –- [ R. v. Jordan , at para. 47 ; R. v. Coulter , 2016 ONCA 704 , at para. 35] . If the net delay, exceeds the ceiling, unless the Crown can establish exceptional circumstances, the delay is unreasonable and a stay of proceedings must follow – [ Jordan , at para. 47] : Exceptional circumstances” are circumstances outside the Crown’s control in the sense that – (

i) they are “reasonably unforeseen or reasonably unavoidable” and – (ii) the Crown cannot reasonably remedy the delay emanating from those circumstances once they arise. [at Jordan , at para. 69] .

The circumstances need not to be rare or entirely uncommon and will “depend on the trial judge’s good sense and experience.” The list of exceptional circumstances is not closed but, in general, they fall under two categories -- discrete events and particularly complex cases – [ Jordan , at paras. 69, 71] Discrete events are deducted from the net delay to arrive at the “remaining delay” for the purpose of determining whether the ceiling has been exceeded –[ Jordan , at para. 75 ; Coulter , at paras. 38, 56] .

Where the Crown can demonstrate that a case was particularly complex, the delay may be justified and no stay will issue – [ Jordan , at para. 80] . Where the remaining delay exceeds the presumptive ceiling and the charges were brought prior to the release of the Jordan decision, a transitional exceptional circumstance will apply where the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it was previously existing [ Jordan , at para. 96] .

This requires a contextual and flexible assessment which is sensitive to the manner in which the previous framework was applied and recognizes that parties cannot be judged strictly against a standard of which they had no notice. The release of the Jordan decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one -–[ Jordan , at paras. 96] . [end of quote] This case is proceeding before the Ontario Court of Justice, Provincial Offences Court, 18 month ceiling is applicable. The Ontario Court of Appeal in R. v.

Nguyen stated in paragraph 26 : The language in K.J.M . is categorical -- the ceilings established in Jordan apply uniformly. Accordingly, while the POA is intended to provide a speedy and efficient proceedings for dealing with regulatory offences, the 18-month ceiling for single-stage provincial court proceedings established in Jordan applies to proceedings under

Part 1. This is a

Part 3 matter but in my view uniform ceiling of 18 months as it is “single-stage” provincial court proceeding, applies. The Crown agrees with the defence, and this view is shared by this Court that there is no defence delay in this case. The defence not only on a number of occasions asked for trial but also tried to cooperate with the prosecution, investigation and the court to bring this matter to a trial stage of proceedings.

It made certain admission in a pre-trial memorandum shared with the Crown information about the lack of recollection of the accident by the defendant; it met with the Technical Traffic Collision Investigator; it shared the defence’s theory of what happened, and it caused the expansion of the investigation. I do not find defence delay. Therefore the net delay is 24 months 21 days.

The Crown proposes that I’m finding exceptional circumstances which should cause deducting some time from the almost 25 months it will be needed to hear the trial. The Crown raises the issue of COVID-19 pandemic as grounds to establish exceptional circumstances. The exceptional circumstances fall under two categories -- discrete events and particularly complex cases. The Supreme Court of Canada provided us with definition, or guidance how to apply the concept of discrete events in paragraphs 44-48 in the R. v.

Cody decision. [I quote] Because the net delay of approximately 44 months exceeds the 30-month ceiling, it is presumptively unreasonable, and it falls to the Crown to demonstrate exceptional circumstances [ Jordan , at para. 68] . Exceptional circumstances were described in Jordan as follows – Exceptional circumstances lie outside of 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. [para. 69.] Exceptional circumstances generally fall into two categories -- discrete events and particularly complex cases. [ Jordan , at para. 71] . In addition, transitional considerations may be considered as a third form of exceptional circumstances where, as here, the case was already in the system when Jordan was decided. [ Jordan , at paras. 94-98] . In this case the Crown relies on each form of exceptional circumstances to argue that the delay in this case falls below the presumptive ceiling.

Alternatively, the Crown asserts that any excess delay is justified as reasonable. DISCRETE EVENTS The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be reason. [ Jordan , at paras. 73 and 75] . What is especially relevant to this case is the observation made by the Supreme Court of Canada in paragraph 54 of the Cody decision [I quote]..

We agree with the Crown that the emergence of this new disclosure obligation qualified as a discrete event and would deduct a portion of the delay that followed. It was reasonably unavoidable and unforeseeable, and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded, and seeking the next earliest available dates. The Crown may have been able to take additional steps, such as disavowing any reliance on the officer’s evidence or tendering it through an agreed statement of facts. However, the requirement is that of reasonableness.

The Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement. [end of quote] I already stated that Covid-19 pandemic caused the unexpected closure of the courts. It brought most of the proceedings to a halt. Provincial Offences Courts were closed almost completely, and proceedings were stopped. The Crown was not able to remedy that situation. This is a discrete event. The Crown proposes that I calculate closure of the Provincial Offences Courts starting on March 12, 2020 to January 22, 2021. January

22, 2021 is the date when the Provincial Offences Courts are expected to start to hear trials. As much as I agree with the Crown positionthat Court closure falls within the discrete event category, I am reluctant to accept the length of time between March 2020 and January2021 as such an event. The Provincial Offences Courts were partially operating, in this case, as of June 12, 2020. That was the day a continuation of theJudicial Pretrial occurred, followed by a number of court appearances.

All transcripts are indicating disclosure issue through theproceedings in this matter starting with first appearance in April 2019. It was not an issue which was caused by COVID-19 pandemic. It started with not disclosing to the defence the email dated January 22,2019 from the Coroner’s office indicating the presence of methamphetamine in the deceased’s system. The Crown admits that that emailwas not presented to the Crown until July 2019 disclosed to the defence in August 2019. In the view of this court it is delay attributable to the Crown. The Court relies on the decision in R. v. McNeil.

The Supreme Court ofCanada stated - In addition to clarifying these three uncertainties, this case provides an appropriate context within which to reiterate the respectiveobligations of the police and the Crown to disclose the fruits of the investigation under R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326, and to consider the extent to which relevant police disciplinary records and third party criminal investigation filesshould form part of this “first party” disclosure package.

The Crown’s obligation to disclose all relevant information in its possession toan accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence underSection 7 of the Canadian Charter of Rights and Freedoms. The necessary corollary to the Crown’s disclosure duty under Stinchcombeis the obligation of police (or other investigating state authority) to disclose to the Crown all materials pertaining to its investigation ofthe accused.

For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independentfrom the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. [end of quote] The Supreme Court of Canada also made this observation – Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits of theinvestigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by thepolice.

While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions -- see,for example, Section 42(1)(

e) of the Ontario Police Services Act. Of particular relevance here is the police duty to participate in thedisclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of policeinvestigators to disclose to the Crown all relevant material in their possession. The police obligation to disclose all material pertaining tothe investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe. The state of the law was wellsummed up by the Honourable G.

Arthur Martin, Q.C., in his Report of the Attorney General’s Advisory Committee on ChargeScreening, Disclosure, and Resolution Discussions (1993) (“Martin Report”), at pp. 167-68. And in the next paragraph – The corollary duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellatejurisprudence. See R. v. Jack (1992), (MB CA), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 94; R. v. T. (L.A.) (1993), (ON CA), 14 O.R. (3d) 378 (C.A.), at p. 382; R. v. Gagné (1998), (QC CA), 131 C.C.C. (3d) 444 (Que.C.A.), at p. 455; and Driskell v.

Dangerfield, 2008 MBCA 60, [2008] 6 W.W.R. 615, at para. 17. It is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that the investigatingpolice force failed to disclose it to the Crown. [See R. v. MacPherson (1991) (NS SC), 105 N.S.R. (2d), 123 (S.C.) atparas. 37-38; R. v. Oliver (1995), (NS SC), 143 N.S.R. (2d) 134 (S.C.), at para. 36; R. v. Campbell, [1992] N.S.J. No.702 (QL) (Prov.

Ct.), at paras. 16-17. [end of quote] The Supreme Court of Canada recognized certain difficulties the Crown may encounter if the relevant evidence had been gathered by anunknown government agency. The Court stated – paragraph 48 –- [I quote] As stated earlier, the suggestion that all state authorities constitute a single entity is untenable and unworkable. In order to fulfill its

Stinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government, every department of the federal government and every police force whether they are in possession of material relevant to the accused’s case. However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material. [end of quote] This is not the situation in the case before this Court.

The Crown, or rather the police, knew since January 22, 2019 that the Coroner had information relevant to this investigation. The Court follows the McNeil decision and does not accept late disclosing of the January 22, 2019 email by the police to the Crown as an explanation for not disclosing it in a timely fashion to the defence. The black box data from the vehicle is still outstanding since the defence met with TTCI on January 22, 2020 and need for an additional report has been established and, although the Crown states it is being worked on, it is still not done or provided to the defence.

The Crown had an opportunity to move on these issues at least after June 12 th , 2020, and it is not completed yet. If the disclosure requested by the defence was a new issue raised recently, it would be a different situation. In my view it was not a situation which could not be remedied by the Crown when they re-started Judicial Pre-trial process and had the opportunity and assistance from the Court.

I would be open to consider the proposed period of March 12, 2020 to January 2021 when POA Courts will start hearing trials again, if the case was ready to be set for trial, with no outstanding disclosure and with proper scheduling of necessary officers and other witnesses. This is not the case in Mr. Ottewell’s case. For this reason, following the R. v. Drummond decision, I am prepared to include the time from March 12, 2020 to June 12, 2020 as a discrete event and subtract this period from the net delay. The delay is therefore 21 months and 21 days.

I will state for greater clarity, I would be prepared to include the whole period from March 12, 2020 to January 2021 as a discrete event if the matter had been completely ready to have a trial date set and only the COVID-19 pandemic court closure prevented setting trial dates. PARTICULARLY COMPLEX CASE The Supreme Court of Canada provided also guidelines how to apply concept of Particularly Complex Cases. In the Cody ruling, paragraph 64 the Court said –- [I quote] Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment.

Complexity is an exceptional circumstance only where the case is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay will still exceed the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable ( Jordan , at para . 80 ) .

A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” ( Jordan , at para. 77 .) When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination which falls well within the expertise of a trial judge. ( Jordan , at para. 79 ). [end of quote] There is no acceptable explanation why the requested disclosure was not obtained and provided to the defence.

The January 22, 2019 email was disclosure some 8 months later, the “black box” data was not obtained and the report by Art Williams is still not completed.

The case although extremely serious due to the loss of life of Mr. Wade Al Brodie does not seem particularly complex. This Court was told it would involve an eye witness, investigating officers, one being Technical Traffic Collision Investigator, Mr. Art Williams report and probably his viva voce evidence. The main issue is whether or not the Crown can prove beyond reasonable doubt that it was the defendant who drove carelessly. There is a defence theory already disclosed to the Crown that the black box data could prove or disprove allegations against the defendant.

Based on the limited indication of possible evidence to be presented during trial I do not find this matter, although with most serious consequences, is falling into the category of a particularly complex case. In the opinion of this court this a serious matter of grave consequences but its level of complexity does not exceed many other cases heard in Provincial Offences Courts involving motor vehicles collisions. There is no dispute that Mr. Ottewell had been subject of extremely serious allegations for two years. There is no dispute that the defence did not cause delay in this matter.

I am fully aware of the tragic consequences of the accident which happened on the 19 th day of November 2018 on Highway 6 near Kenilworth, Ontario. Mr. Wade Brodie lost his life as a result of this accident. It is not a typical Provincial Offences Court case.

The possible penalties if a conviction is entered, are listed in s. 130(4) of the Highway Traffic Act, [I quote] — On conviction under subsection (3), a person is liable to a fine of not less than $2,000 and not more than $50,000 or to imprisonment for a term of not more than two years, or to both, and in addition his or her driver’s licence or permit may be suspended for a period of not more than five years. [end of quote] On the other hand, the right to have trial within a reasonable time is firmly established in

Section 11 (

b) of the Charter of Rights and Freedoms . [I quote]--

Section 11 -- Any person charged with an offence has the right; (

b) to be tried within a reasonable time. [end of quote] The court following the analysis of the law and facts presented to it with respect to the

Section 11 (

b) Application found that the applicable delay in this case is 21 months and 21 days. This is above 18 months ceiling for matters tried in Ontario Court of Justice. This court did not find that this matter would fall into the category of a particularly complex case. Therefore, this court finds that the defendant’s right to a trial within reasonable time was violated. For the reasons indicated above there is no other remedy under

Section 24 of the Charter of Rights and Freedoms than a stay of proceedings against Morgan Ottewell. Any other remedy would in the view of this Court only deepen the violation of the

Section 11 (

b) right. The stay of the proceeding in this matter is therefore ordered. There is a second application brought before this court, namely for an order directing the Crown to complete disclosure. This application is based on

Section 35 of the Provincial Offences Act which states as follows, and I quote --

The court may, before or during trial, if it is satisfied that it is necessary for a fair trial, order that a further describing any matter relevant to the proceeding, be furnished to the defendant. [end of quote] Considering my decision on

Section 11(

b) Application and ordering stay of the proceeding, there is no need to rule on

Section 35 Application. However, if this ruling would fail, this Court would make an appropriate order under

Section 35 compelling the Crown to provide outstanding disclosure to the defence. I am not prepared to deal with the request for costs since I am not making any ruling with respect to the

Section 35 Application. Thank you both counsel for assisting this court in proceeding on these two applications. I will reserve my right to make grammatical or spelling corrections if they will be needed and to make final editing of the text of this decision before it will be released in writing.

Thank you. ****************** Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Jacoba Near (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. vs OTTEWELL In the Ontario Court of Justice (Name of Case) (Name of Court) held at 59 Carden Street, Guelph (Court Address) taken from recording Digital Recording , which has been certified in Form 1. January 5, 2021 (Date)