2020 ONCJ 27, 2020 ONCJ 27

WARNING PUBLICATION RESTRICTIONS IN EFFECT THIS PROCEEDING UNDER THE YOUTH CRIMINAL JUSTICE ACT IS SUBJECT TO FOLLOWING PROVISIONS: 110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or

section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985, (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. CRIMINAL CODE PUBLICATION RESTRICTIONS ALSO APPLY: Sections 486.4(1) and (4) and s. 486.6(1) and (2) 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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 347 486.6(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 relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

CITATION : R. v. J.P., 2020 ONCJ 27 DATE : January 15, 2020 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT Metro West – Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — J.P. ) ) ) ) ) ) ) ) ) ) ) ) ) M. Townsend For the Respondent/Crown J. Markson and K. Robertson For the Applicant/Defendant Heard: December 16-17, 2019 REASONS for RULING (No. 3) (Re Application for Stay of Proceedings Pursuant to ss. 11(

b) and 24(1) of the Charter ) MELVYN GREEN, J.: A. PREFACE [ 1 ]

Section 11(

b) of the Canadian Charter of Rights and Freedoms constitutionally enshrines the right of any person charged with an offence “to be tried within a reasonable time”. [ 2 ] The defendant, J.P., is charged with historical sex offences prosecuted under the Youth Criminal Justice Act (the YCJA ). The Information initiating the proceedings was sworn on June 22, 2018. J.P.’s trial is expected to conclude on April 17, 2020, approximately 22 months later.

The Crown rightly concedes that the anticipated global length of these proceedings surpasses the 18-month ceiling for constitutionally tolerable trial delay in provincial court, as fixed by the Supreme Court in R. v. Jordan , [2016] 1 S.C.R. 631 , 2016 SCC 27 . While presumptively unreasonable, Crown counsel submits that the excessive protraction of the proceedings is attributable to exceptional circumstances, both by way of unanticipated discrete events and procedural complexities, which explain and effectively excuse the otherwise unreasonable delay.

Despite Crown counsel’s most able argument, I remain unpersuaded. Accordingly, I ruled on December 17, 2019 that that the s. 11 (

b) rights of J.P. (hereafter, the Applicant) had been infringed. In the result, and pursuant to s. 24(1) of the Charter , the charges he faces were stayed. [ 3 ] My reasons for reaching this conclusion follow. B. THE LEGAL CONTEXT: A THEMATIC OVERVIEW

[4] The Supreme Court’s 2016 decision in R. v. Jordan, supra, represents a fundamental reorientation to the assessment ofunreasonable delay. As said by the Court of Appeal in R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24, Jordan, “rewrotethe law on unreasonable delay under s. 11(

b) of the Charter”. The Jordan framework, the Court continued, at paras. 24-25, replaced the multi-factored Morin framework. In its place, the Supreme Court set a presumptive ceiling of 18 months in provincial courtand 30 months in superior court. … A delay that exceeds the ceiling is presumptively unreasonable. It falls to the Crown to rebut the presumption by establishing that thedelay was caused by exceptional circumstances beyond its control.

As recently settled by the Supreme Court, there is no adjustment to the presumptive ceilings where, as here, the defendant is prosecutedas a “young person” under the YCJA: R. v. K.J.M., 2019 SCC 55. [5] Rather than engage in the multifactorial, micro-accounting that characterized the calculation of unreasonable delay under R.v. Morin, [1992] 1 S.C.R. 771, , the Jordan decision, at para. 91, instructs judges to “step back from the minutiae andadopt a bird’s-eye view of the case”.

The retrospective inquiry directed by Morin was held to have contributed to a “culture ofcomplacency” toward delay that, as put in Jordan, at para. 19, “denies justice to the accused, victims and their families, and the public asa whole”. In contrast, the Jordan-endorsed approach to the assessment of unreasonable delay is forward-looking and proactivelyremedial, “encourag[ing]”, as said at para. 41, all justice system actors “to take preventative measure to address inefficient practices andresourcing problems”.

Summarized (as here relevant), at paras. 108 and 112-113: [The] standpoint [of the new framework] is prospective. Participants in the criminal justice system will know, in advance, the bounds ofreasonableness so proactive measures can be taken to remedy any delay. … … [T]he new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhanceaccountability by fostering proactive, preventative problem solving.

From the Crown’s perspective, the framework clarifies the contentof the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crownwill only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused theceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughoutthe proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.

The new framework also encourages the defence to be part of the solution. … [T]he defence cannot benefit from its own delay-causingaction or inaction. [Italicization in original; underscoring added.] A unanimous Supreme Court affirmed the “new framework” in R. v. Cody, [2017] 1 S.C.R. 659, 2017 SCC 31. “A proactive approach”,said the Court at para. 36, “is required that prevents unnecessary delay by targeting its root causes.

All participants in the criminal justicesystem share this responsibility”. [6] In short, the Charter-guaranteed right to a timely trial is not measured by way of elastic guidelines, qualitative assessments ofindividual prejudice and post facto rationalizations or revisionism but, rather, against a fixed standard of reasonableness. The analyticalfocus is on the parties’ contextual diligence, including, by virtue of the Charter imperative, the Crown’s compliance with itsconstitutional obligations. Where, as here, the length of the delay is presumptively unreasonable, the s. 11(

b) inquiry focuses on theCrown’s claims of exceptional circumstances and, as put at para. 90 in Jordan, on whether, the Crown, throughout, has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seekingopportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses. C. PROCEDURAL CHRONOLOGY (

a) Preliminary Events [7] Complaints of historical sexual assault involving the Applicant were first brought to the attention of the police in April of 2018. An active police investigation was completed by May 28th of the same year. The Applicant surrendered himself on June 8, 2018,after being contacted by the police. He was arrested, charged, and then released on an Undertaking and a Promise to Appear in court amonth and half later, on July 23, 2018. [8] A Criminal Code Information was sworn two weeks after the Applicant’s arrest, on June 22, 2018.

The Information allegedsingle counts of invitation to sexual touching, sexual interference and sexual assault. All three charges named the same complainant andall three offences were said to have occurred approximately twenty years earlier, between January 1, 1998 and December 31, 1999. (

b) July 23 – November 26, 2018 [9] As required, the Applicant first appeared in court on July 23rd. He had already retained counsel. No disclosure was available and no Crown counsel had yet been assigned to the matter. At the Crown’s request, the matter was adjourned to August 13th, at which time initial disclosure was provided and the matter remanded to September 10th to permit defence review of the disclosure. [10] Material information detailed in the disclosure package inventory (including lead officers’ notes, civilian witness interviews

and documentary material provided by the complainant) was not included in the disclosure given the defence on August 13 th . The package did contain a copy of a “Police Synopsis” prepared before the Applicant’s first appearance.

The Synopsis, authored by the officer-in-charge (OIC), included a note advising the Crown’s office that, “[t]here is a strong possibility that the accused was a youth for part of the aforementioned offences”. [ 11 ] Following receipt of the Synopsis, the defence, in court and through correspondence with the Crown, repeatedly asserted that the Applicant was entitled to protections under the YCJA and that the matter should proceed in Youth Justice Court.

The Crown’s office noted the defence position but repeatedly deferred resolving the matter. [ 12 ] The defence also pressed for the listed but still outstanding material disclosure. It did so on several court appearances and by way of itemized correspondence on at least five occasions before complete disclosure was provided on November 26, 2018, some four months after the Applicant’s first appearance. Defence counsel immediately contacted the assigned Crown, both personally and by email, to secure and

schedule a judicial pre-trial (JPT). The same day, November 26 th , the matter was adjourned to January 17, 2019 for purposes of a JPT. (

c) January 17 – March 1, 2019 [ 13 ] The JPT was conducted, as scheduled, on January 17, 2019. The Applicant’s preliminary hearing was fixed for August 20-22, 2019 at the court appearance that immediately followed. An interim continuing JPT was set down for March 1 st . In advance of this second JPT, defence counsel, relying exclusively on information culled from the disclosure brief, again pressed the Applicant’s position that the “youth criminal court has jurisdiction over this matter”. [ 14 ] The jurisdictional question was canvassed at the March 1 st JPT.

At the Crown’s suggestion, the matter was then adjourned to April 16 th in anticipation, as expressed by Crown counsel, that, “there will very likely [then] be a new Information under the Youth Criminal Justice Act ”. The dates of October 22-25 were reserved for trial in such eventuality, with the expectation that the Applicant’s August 20 th preliminary hearing date would then be treated as a trial readiness appearance.

Assuming the prosecution proceeded under the YCJA (extinguishing the possibility of a preliminary inquiry), defence counsel advised that a third-party “records application”, pursuant to s. 278.3 of the Code , was anticipated; it could not, however, then be scheduled, as a trial judge had not yet been assigned to the matter. To avoid delay, counsel also indicated that the defence would endeavour to file its materials even before the records application was scheduled. (

d) April 16 – August 30, 2019 [ 15 ] A replacement YCJA Information was before the court on April 16, 2019. The reserved Youth Justice Court trial dates of October 22-25, 2019 were then fixed. However, the timing of the preliminary third-party records application remained unsettled. The Applicant’s adult record was ordered sealed at a hearing on May 14 th , at which time the parties confirmed their estimate of a four-day trial and the earlier-scheduled October trial dates.

The matter was then adjourned to August 20 th for a trial readiness hearing. [ 16 ] The disclosure materials indicated that the now-adult complainant had attended for counseling prior to reporting her allegations and that she had provided the OIC with copies of at least some related medical records during the course of her police interviews.

Between September 10, 2018 and mid-summer of 2019, the defence repeatedly sought particulars of the latter documents, notice of which, counsel reminded the Crown, is mandated by s. 278.2(3) of the Code . [ 17 ] Given the scheduled October 2019 trial dates, it was anticipated that the third-party records application (a Mills application, in legal vernacular) would be heard during the course of the preceding summer months.

On July 9, 2019, defence counsel wrote the Crown Attorney’s Office: In order to complete the [records] application and move the matter forward, defence counsel urgently requires the particulars of the names of record holders of counseling records as well as the … particulars of the [medical] records received by the investigating officer [the OIC]. Similar email correspondence was directed to the assigned Crown the same day.

Defence counsel made patent that while the records received by the OIC were not to be disclosed, the particulars of “the types/date of the medical records” at issue were needed to perfect the application for their production. Defence counsel later learned that these medical records, “vetted [for] personal details”, had been forwarded to the assigned Crown by the OIC on June 6, 2019. [ 18 ] By voice-mail message on July 18, 2019, defence counsel requested a call-back from the assigned Crown respecting the counseling records.

The phone call was not returned. [ 19 ] In an effort to preserve the scheduled trial dates, the defence served a pro forma Form 1 third-party records application on August 1, 2019. As flagged on the Form 1 itself, the application was deficient for want of particulars respecting the dates of the records sought and the names of the holders of these records. The assigned Crown responded on August 7 th . Despite defence counsel’s earlier correspondence, he asked to be advised “who these 3 rd party stakeholders are and what, if any, dates and records you are specifically looking for”.

Defence counsel immediately responded to the Crown inquiry, explaining, again, the disclosure-based premise for defence knowledge of potentially relevant third-party records. An exchange of emails respecting the scheduling of the records production application followed.

As a complainant is statutorily entitled to counsel on a s. 278.3 application, the scheduling of a hearing date required appointment of such counsel (a matter not effected until August 20 th ) and coordination with that counsel’s calendar. [ 20 ] On August 9 th , Crown counsel advised that the availability of the lawyer who “usually handles the 3 rd party records applications as counsel for the complainant … is a little sparse between now and the trial dates”.

Given counsel’s limited availability, he proposed that the records application be argued on October 10 th and inquired whether that date would “still give us enough time?” By

emailed response the same day, the Applicant’s counsel advised of a conflict on October 10 th and urged an earlier date for the application hearing: “Ideally late September (or middle) would also keep the trial dates safest”.

Counsel further inquired whether “another lawyer would have more options” if the Crown’s usual nominee had only a few dates available. [ 21 ] Consistent with at least one of the defence suggestions, on August 14 th Crown counsel advised that an order appointing an alternative counsel for the complainant would be made on August 20 th , thus permitting a more flexible approach to scheduling the records application hearing. “Unfortunately”, he noted, “the trial-coordinator is not yet in a position to tell us who the trial judge is”.

As a s. 278.3 application is to be heard by the trial judge, “that makes it a little tough to set the date for the Application”, he continued. [ 22 ] No trial judge had yet been assigned to the Applicant’s trial on August 20, 2019, the next scheduled appearance. Nor had the Crown provided the necessary particulars to permit the defence to perfect the records production application and the issuance of related subpoenas.

The presiding judge adjourned the matter to August 30 th , noting that “there’s some urgency” to the scheduling of the application in view of the approaching trial dates. [ 23 ] Despite interim requests, the record-holders’ particulars had still not been made available to the defence by August 30 th . In expectation that this information would quickly follow, counsel had secured the date of September 18 th as returnable for the subpoenas the defence was required to serve on the record-holders in advance of the application hearing.

As the availability of a per diem judge to conduct the trial remained uncertain, it was anticipated that the scheduling of a date to hear the application would be addressed on the return date, September 18, 2019. (

e) August 30 – October 17, 2019 [ 24 ] Later on August 30 th , Crown counsel advised the defence by email that the s. 278.3 records application would be heard on October 17, 2019. He further advised that he would afford “the names of the record-holders ASAP”. Counsel for the complainant, rather than the Crown, ultimately provided this information to the defence, but not until September 16, 2019 – a mere two days before the date earlier scheduled for the record-holders’ return of the subpoenaed records.

In order to issue process to the now-identified record-holders and allow them an opportunity to respond to the subpoenas, the date for the return of their records was adjourned to October 2 nd . In the interim, on September 27 th , the Applicant’s application record and supporting authorities were served on the Crown and the complainant’s counsel and filed with the court. [ 25 ] Dr. M, one of the three identified record-holders, failed to attend court, personally or by representative, in answer to her subpoena on October 2 nd . The October 17 th application hearing date was nonetheless confirmed.

In advance of that hearing, the Applicant’s counsel, with the assistance of counsel for the complainant, arranged for deposit with the court of Dr. M’s records pertaining to the complainant. During the application hearing on October 17 th , it was discovered that the records Dr. M conveyed to the court through counsel for the complainant were incomplete and partially redacted at source. Comprehensive production of the records sought from Dr.

M finally occurred on October 23, 2019, when they were delivered directly to the court. [ 26 ] There was no response from the Crown to several further written requests from the Applicant’s counsel for particulars of the medical records the complainant voluntarily provided to the OIC during her interview. Finally, on October 7 th , Crown counsel emailed a complete copy of these medical records to the defence. Counsel for the Applicant immediately confirmed receipt of these records.

Further, in view of their content, the defence advised that it would suspend its review of the documents pending confirmation by the Crown that their disclosure was pursuant to the complainant’s express waiver, as mandated by s. 278.2(2) as a pre-condition for a prosecutor’s production of such records to an accused. Crown confirmation followed on October 10 th : “I am told by OIC that … there was an express waiver by the complainant”.

The Applicant’s counsel then forwarded a copy of these records to counsel for the complainant, advising her that the Crown had confirmed the complainant’s express consent to their release. (Much later, Crown counsel fairly conceded that he had never asked to see the “waiver” upon which OIC purported to rely until midway through the Mills hearing.) [ 27 ] Counsel for the complainant filed her written response to the Applicant’s records production application on October 15, 2019. She did not flag any issue respecting Crown disclosure to the defence of the medical records the complainant had shared with the OIC.

Absent any expression of concern respecting production of the Crown-disclosed medical records, the Applicant’s counsel filed amended application materials (including copies of the complainant’s medical records) on October 16 th . As these records were now in the lawful possession of the defence, counsel advised that they were no longer a subject of the pending production application.

Further, their consensual release, counsel now argued, impacted more generally on the balancing of interests central to determination of the remainder of the Mills application. [ 28 ] Later that same evening, counsel for the complainant first notified counsel for the Crown and the Applicant that, having now received instructions, her client had not waived her privacy interest in the “records disclosed by the Crown [and they] should be returned and … be subject to the full application process”. [ 29 ] The hearing of the Applicant’s s. 278.3 records production application began the next day, October 17, 2019.

In the course of the proceedings, the complainant’s counsel acknowledged that the statutory conditions for satisfaction of the first, or threshold, stage of the records production application were met. Apart from this substantive measure, the appearance was consumed by procedural and evidentiary issues, in particular those relating to Dr. M’s clinical records of the complainant. One concern was the incomplete and improperly redacted records provided by Dr. M in answer to the Applicant’s subpoena. A second involved the complainant medical records the Crown had disclosed to the defence.

As to the latter, Crown counsel ultimately allowed that their disclosure had been inadvertent, the result of a “misunderstanding”. The complainant, he conceded, had never expressly waived her protected interests in these records. [ 30 ] Prophylactic orders followed this concession (including the return and sealing of the inadvertently disclosed records, the destruction of any copies, and prohibition of any reliance, directly or derivatively, on their content), pending my ruling on the production

application. In light of the now-altered evidentiary record, the Applicant was afforded a brief opportunity to prepare and file an amended record and factum prior to the resumption of the production application compelled by these developments. The matter was adjourned to the next tranche of dates (beginning October 22 nd ) scheduled for continuation of the Applicant’s proceedings.

The Applicant’s amended pleadings were served and filed on October 21 st . [ 31 ] The complainant’s counsel had conflicting obligations on the first scheduled continuation date, October 22 nd , which had been originally fixed for the commencement of the Applicant’s trial proper. The records production application was therefore adjourned to the following day, October 23 rd , with my ruling (if not reasons) expected to follow by October 24 th .

In light of the complainant’s counsel’s concession regarding the threshold stage of the s. 278.3 application, and with all counsels’ consent, I undertook to review copies of the sealed records that had been produced to the court in advance of the second stage of the Mills hearing. [ 32 ] The frustration of the records application hearing on October 17 th meant that the Applicant’s trial proper could now not commence, at earliest, until October 24 th . If so, this left only one further scheduled day, October 25 th , for completion of what was estimated to be a four-day trial.

As a result, court-available dates of December 16, 17 and 18 were confirmed for continuation of the trial. By way of a “joint thought”, Crown and defence counsel proposed that the Crown conduct the direct examination of its first witness, the complainant, on October 24 th , but that her cross-examination (which was estimated to likely consume more than a day) be adjourned to December 16 th to permit the Applicant’s counsel an opportunity to review and integrate into the structure of his examination any records ordered produced, and to avoid fracturing the complainant’s cross-examination by nearly two months.

I ratified counsels’ proposal in view of the parties’ shared confidence that the trial could be completed in the three further days fixed for continuation in December. (

f) October 23 – December 18, 2019 [ 33 ] The Applicant was arraigned on the return date, October 23, 2019. As earlier noted, the complete records of the complainant’s clinical history with Dr. M were now before the court. At the end of the day, following extensive submissions respecting production of the subpoenaed materials, I granted the application in part, ordering portions of the complainant’s records produced to the defence. Copies of these excerpts, redacted where necessary, were prepared, copied and distributed to counsel the next morning, October 24 th .

My reasons for ordering limited production were released on November 7, 2019: R. v. J.P ., 2019 ONCJ 808 . [ 34 ] During the course of submissions on October 23 rd , the Applicant’s counsel alluded to the need for directions respecting the applicability of the statutory admissibility screening procedure (that prescribed in s. 278.92 of the Criminal Code ) to any records that might be ordered produced to the defence. Counsel for the Crown and the Applicant adopted opposing views as to the applicability of this admissibility regime.

Argument on the point was adjourned to the next day, October 24 th , following release of the court-ordered production to the Applicant. Her retainer expired, the complainant’s counsel withdrew from the proceedings, expressly taking no position as to the applicability of s. 278.92 protocol. [ 35 ] The pre-screening admissibility regime set out in s. 278.92 - s. 278.94 of the Code is of relatively recent vintage, having come into force in December 2018 as part of the Bill C-51 amendments.

The statutory scheme, on its face, applies to a “record” (as defined in s. 278.1) in possession of an accused that contains personal information in which a complainant has a reasonable expectation of privacy. The documentation ordered produced to the defence as a result of its s. 278.3 application indisputably fell within the statutory definition of protected record.

Section 278.92 renders such record presumptively inadmissible unless a judge, following observance of the application and hearing procedures set out, respectively, in s. 278.93 and s. 278.94, and on consideration of a complex matrix of enumerated factors, determines that the tendered evidence is relevant and that its probative value is not outweighed by its prejudicial impact on the administration of justice.

Prior to passage of Bill C-51, the admissibility of a privacy-protected record that only came into a defendant’s possession through a Mills application was subject to common law rules of evidence and determined, if necessary, at the point of its proposed adduction. [ 36 ] October 24 th was devoted to counsels’ representations as to applicability of s. 278.92. The statutory scheme, the Crown submitted, was of universal application, irrespective of how a defendant assumed possession of the records at issue.

The Applicant’s counsel argued that, on a proper contextual and purposive reading, the admissibility provisions did not apply to records of which a defendant had possession solely as a result of a judicial order following a functionally equivalent, statutorily-prescribed procedure (ss. 278.3ff) during which a judge, in the process of determining the production of any record, had already weighed and balanced the same personal, legal and societal interests addressed by the s. 278.92 regime.

Accordingly, the defence continued, unlike privacy-infused records that were already in the hands of a defendant (such as Shearing records and those pertaining to evidence of alleged extrinsic sexual conduct of a complainant), the application of the Bill C-51 admissibility regime to complainant records that had already been screened by the court was effectively redundant. To hold that s. 278.92 applied to such records, the argument concluded, would therefore be inconsistent with conventional canons of statutory construction.

I took the issue under reserve. [ 37 ] As had been earlier contemplated in the context of the records production application, counsel agreed that defence cross- examination of the complainant should await determination of the interpretive question regarding the applicability of s. 278.92 and, depending on that ruling, the result of any subsequent admissibility hearing that might be directed. To avoid further delays, counsel further agreed that the admissibility issue should be resolved prior to the projected commencement of the defence cross-examination on the scheduled continuation date of December 16 th .

They proposed that a provisional interim date be set for such admissibility hearing, on the understanding that it would be vacated if I held that the s. 278.92 had no application to the records in the possession of the defence as a result of my production order. In accordance with this suggestion, and with the co-operation of counsel, I arranged with the trial coordinators to convert a scheduled per diem presiding day on November 18 th at a different courthouse into a s. 278.94 hearing date for the Applicant, if one proved necessary.

To accommodate counsel, and to allow the defence time to file the Applicant’s pleadings and the Crown time to ensure the appointment of counsel for the complainant at such hearing (as authorized by the same provision), I indicated that I would strive to release my ruling, if not reasons, on the applicability of s. 278.92 by November 8, 2019. [ 38 ] Crown counsel’s examination in-chief of the complainant occupied the remainder of the October 25 th appearance. The

Applicant’s trial was then remanded to December 16 th , with the interim s. 278.94 hearing, if one proved necessary, scheduled for November 18 th . [ 39 ] After careful consideration, I advised counsel by emailed direction on November 7th, with reasons to follow, that the records ordered produced on October 24 th were not subject to the s. 278.92 admissibility regime. The provisional hearing date of November 18 th was vacated. [ 40 ] I subsequently reversed my earlier ruling.

Despite my initial conviction as to the propriety of the result I had first conveyed to counsel, I found, as judges sometimes say, that it “wouldn’t write”. As explained through my judicial assistant in a further emailed communication, dated November 22 nd : In drafting his reasons, Justice Green realized that his preliminary decision in this matter was mistaken. Rather than risk the integrity of the trial proper by generating reversible error though such ruling, he has corrected himself.

The conclusion of his now-completed ruling … reads: “The defendant, should he wish to adduce in evidence any portion of the third-party ‘record’ he possesses as a result of the production I earlier ordered under s. 278.7, must comply with the admissibility regime set out in ss. 278.92 to s. 278.94 of the Criminal Code ”. I further advised that I would endeavour to accommodate counsel by hearing the application on any one of three interim dates (December 4 th , 9 th , or 11 th ) that I had confirmed as to court availability.

Failing same, the defence admissibility application would be heard on the next scheduled return date, December 16 th . The reasons for my ruling respecting the applicability of the s. 278.92 regime were released the same day, November 22, 2019: R. v. J.P. (No. 2) , 2019 ONCJ 871 . [ 41 ] I received no response from either party respecting the alternative admissibility hearing dates I had proposed in the email of November 22 nd . I later learned that they conflicted with one or more of counsels’ calendars. The defence application record was filed on December 3 rd .

A day earlier, in an emailed communication to the assigned Crown, counsel for the Applicant advised that there was “no prospect” that the trial would conclude on December 18 th , the last scheduled trial date, even were I to render a ruling on the admissibility application by midday on December 16 th .

The Applicant’s counsel further reported that, according to the local and regional trial coordinators, due my per diem status, no trial continuation dates beyond December 18 th could be scheduled until April 2020. [ 42 ] In light of these considerations, the Applicant’s counsel indicated that an application to stay the proceedings for unreasonable delay would likely be brought. Formal notice of such application was filed on December 5 th , along with the Applicant’s supporting record and factum. The Crown respondent’s factum was filed a week later.

By way of an Agreed Statement of Facts, counsel, after discussions with the trial coordinator, concurred in a trial

schedule that, while including single continuation dates in January and March, did not realistically contemplate the Applicant’s trial concluding until April 17, 2020 – some 22 months (less five days) after the Information was sworn. [ 43 ] The Applicant’s statutory admissibility application was heard on the morning of December 16, 2019. Counsel for the complainant initially opposed the application. Upon the Applicant’s counsel providing fuller explanations as to the potential relevance of the produced records, counsel for the complainant agreed that the statutory conditions for their adduction were met.

My brief, oral ruling confirmed this resolution. [ 44 ] The complainant was available to be recalled for purposes of cross-examination following the admissibility ruling. However, counsel for the Crown, joined by counsel for Applicant, several times urged me to first hear and determine the s. 11 (

b) application. The motion consumed the remainder of the December 16 th court day and the early part of the next, December 17 th . After a recess, I granted the application and stayed the proceedings pursuant to s. 24(1) of the Charter , with more comprehensive reasons to follow. D. THE RELEVANT PRINCIPLES, RESTATED (

a) The Fundamental Rules [ 45 ] The Court of Appeal’s authoritative recital of the mechanics of “the new framework” for s. 11 (

b) analysis is set out in R. v. Coulter (2016), 133 OR (3d) 433 , 2016 ONCA 704 , at paras. 34-40 : Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial. Subtract defence delay from the total delay, which results in the “ Net Delay ”. Compare the Net Delay to the presumptive ceiling. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances . If it cannot rebut the presumption, a stay will follow.

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases . 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. 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. If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable. [Emphasis in original; citations to Jordan omitted.] The concepts of “defence delay” and “exceptional circumstances” warrant some elaboration. (b) “ Defence Delay ” [ 46 ] The element of “defence delay”, as said in R. v. Coulter , supra, at para. 42 , “ has two components: (1) that arising from defence waiver ; and (2) delay caused solely by the conduct of the defence (‘ defence-caused delay ’)”.

Crown counsel rightly and fairly concedes that none of the delay in the instant proceedings is attributable to the defence, either by way of waiver or conduct. The determination of the s. 11 (

b) issue turns, rather, on the doctrine of “exceptional circumstances” and its application to the procedural history of the case. [ 47 ] There is, however, one facet of the Supreme Court’s discussion of “defence delay” that bears repeating in reference to the case at bar. In addressing the treatment of defence applications (comprehending, where at least arguable, those grounded in s. 11(

b) of the Charter ) the Supreme Court, at para. 65 in Jordan , instructs that, [D]efence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, … defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling . [Underscoring added.] (c) “ Exceptional Circumstances ” (

i) Introduction [ 48 ] Coulter , at paras. 45-48 , summarizes the role and meaning of “exceptional circumstances” in the architecture of s. 11 (

b) analysis: If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and

(2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. … An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused.

The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [Citations to Jordan omitted.] [ 49 ] The two categories of “exceptional circumstances” – discrete events and case complexity – require amplification. It is first important to note, as does the Supreme Court in Jordan , at para. 70 , that, It is not enough for the Crown, once the ceiling is breached, to point to a 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 of the court, or seeking 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. [Italicization in original; underscoring added.] This analytical directive is, of course, consistent with the Court’s emphasis on a proactive approach to ensuring compliance with s. 11(

b) of Charter and the Crown’s constitutional burden in this regard. The Crown, the Court continues, at para. 70, “ is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay”. (ii) Discrete Events [ 50 ] Medical or family emergencies are well-recognized illustrations of discrete events, as are, for example, cases involving extradition.

None of these archetypal justifications for periods of delay obtain in the case at bar. “Discrete, exceptional events that arise at trial”, as explained in Jordan , at para. 73 , “may also qualify”. Recanting witnesses that affect the Crown’s carriage of the prosecution afford one instance. Similarly, a trial that exceeds reasonable expectations, even where the parties have made realistic, good faith estimates of its length, “may [also] amount to an exceptional circumstance”.

Trial judges, the Court continues at para. 74, should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. The Court cautions that a “timely solution” may prove difficult when a delay-provoking issue arises close to the presumptive ceiling. There is only limited capacity to effectively respond or case-manage at this juncture.

Accordingly, such events, where constituting “ unforeseeable or unavoidable delays”, will qualify as exceptional circumstances when they present as a trial is “ scheduled to wrap up close to the ceiling” (emphasis added).

[ 51 ] Whatever its original schedule, it is important to recall that the case at bar was not expected “to wrap up” as the events which the Crown characterizes as exceptional arose. Less than a half-day of evidence had been adduced when the s. 11 (

b) application was heard. Cross-examination of the Crown’s first witness would not begin until the hearing and determination of the defence s. 278.92 admissibility application. Further Crown evidence was then anticipated, as were witnesses for the defence and, of course, final submissions. Indeed, the parties agreed that four days should be reserved to complete the trial after the admissibility determination.

The Applicant’s right to a trial within the presumptive ceiling was by then clearly in jeopardy. [ 52 ] Periods of delay attributable to exceptional discrete events are subtracted from the total delay to determine whether the presumptive ceiling has been crested. “Of course”, Jordan adds, at para. 75 , the Crown and the justice system “must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance”.

As a result, the Supreme Court explains, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). Put otherwise, even where properly recognized as a discrete exceptional circumstance, its vindicating impact may be circumscribed by the Crown’s and the justice system’s capacity to demonstrate meaningful response. (iii) Complex Cases [ 53 ] Particularly complex cases compose the second category of exceptional circumstances.

These cases, as defined in Jordan , at para. 77 (emphasis in original), are those “ that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time such that the delay is justified”. As the Crown acknowledges, there is here nothing about the nature of the evidence, the number of witnesses, the volume of disclosure, or any other feature of the charges or their prosecution that renders the case itself complex.

On its face, the Applicant’s case presents as a modest variant of a routine she-say/he-say scenario. [ 54 ] By way of mitigating exceptional circumstances, the Crown does rely on the second branch of complexity – in particular, the purported novelty or unsettled nature of the defence pre-trial applications. As described in Jordan , at para. 77 : Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.

The Crown’s claim, like that involving the extenuating effect of ostensibly discrete events, must be assessed in procedural context. Cases, like that at bar, that comprehend foreseeable pre-trial applications place a strategic, but predictable, burden on the Crown. In analogous circumstances, Jordan , at para. 79 , directs that, [T]he trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity ( R. v.

Auclair , 1 S.C.R. 83 , 2014 SCC 6 , [2014], at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. [ 55 ] Regard must also be had to the Supreme Court’s express accommodation of preliminary and interlocutory motions, among other procedural burdens, in cementing 18-months as the outer limit of time-to-verdict “reasonableness” for a provincial court trial.

As noted earlier, in Jordan the Court, at para. 65 , observed that, it had “already accounted for procedural requirements in setting the ceiling”. Lest there be any residue of doubt, the unanimous Court reiterates in Cody , at para. 63 , that, The presumptive ceilings set in Jordan already reflect the “increased complexity of criminal cases since Morin ”, including the emergence of “[n]ew offences, procedures, obligations on the Crown and police, and legal tests” ( Jordan , at paras. 42 and 53 ). [ 56 ] Further, complexity involves an appraisal of the case as a whole rather than any of its distinct aspects.

The Supreme Court sets out this important analytical clarification R. v. Cody , supra , at paras. 64-65 : Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole 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 still exceeds 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). … 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 . …[Emphasis added.] The facts in Cody itself illustrate the application of this principle.

The majority of the Court of Appeal had attributed four months of deductible delay to voluminous disclosure that it characterized as a mitigating exceptional circumstance. This approach, said the Supreme Court on further appeal, was erroneous. As explained at para. 65: [D]elay caused by a single isolated step that has features of complexity should not have been deducted. While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex “such that the delay is justified”.

Here, there was extensive disclosure. However, the balance of the proceedings appear to have been relatively straightforward. In our view, even after accounting for the voluminous disclosure, this does not qualify as a particularly complex case. [Underscoring added; footnotes and Jordan citations omitted.] [ 57 ] There are no special rules or exemptions from s. 11(

b) obligations in sexual assault cases or, for that matter, any other species of prosecution. As said in Jordan , at para. 78 , even a “typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance”. [ 58 ] Finally, and if only by way of ensuring internal integrity, Cody , at fn. 2, cautions that, “ once a period of delay has been deducted as defence delay or a discrete event, it should not be double-counted by taking it into account when assessing case

complexity”. E. THE PRINCIPLES APPLIED (

a) Introduction [ 59 ] Once again: The Crown acknowledges that the estimated time required to complete the Applicant’s trial exceeds – by four months – the presumptive ceiling of 18-months for provincial court prosecutions. The Crown also acknowledges that, as a result, it bears the evidentiary burden of demonstrating that exceptional circumstances mitigate or excuse what otherwise amounts to a denial of the Applicant’s right to a trial without unreasonable delay. The Crown’s reliance on exceptional circumstances here rests on claims to both discrete events and case complexity, the two categories of cognizable exceptionalism recognized in s. 11(

b) jurisprudence. [ 60 ] As to the first, Crown counsel identifies what it characterizes as three unanticipated discrete events: the failure of a third-party record-holder, Dr.

M, to respond to a subpoena for the clinical records of her patient, the complainant, in a timely manner; a one-day extension to the single day originally scheduled to hear the third-party records production application; and the rescheduling of the s. 278.92 admissibility hearing. [ 61 ] The purported case complexity is said to arise from the number (two) and the novelty (of one) of the defence applications pertaining to the complainant’s counseling and therapeutic records. [ 62 ] In my view, as more fully developed below, the purported exceptional circumstances either fail to qualify as such or lose much if not all of their ostensible mitigative force by virtue of the Crown’s failure to properly anticipate or accommodate their occurrence or to respond, on their emergence, in a manner consistent with the Applicant’s s. 11 (

b) rights. While it is true that there have been statutory revisions to the law governing certain pre-trial applications in sexual assault prosecutions (including those here advanced by the defence), the most recent amendments came into force in December 2018 – long before the Crown was fixed with knowledge of the defence applications and the need for their timely scheduling to ensure compliance with s. 11 (

b) imperatives. Most importantly, the Crown’s carriage of the prosecution has been inconsistent with the forward-looking, proactive approach directed by Jordan in 2016, thereby compromising the trial court’s facility to do justice to the Applicant’s right to be tried within a reasonable time. [ 63 ] Jordan , at para. 136 , affirms the Supreme Court’s acute awareness that its reformulation of the s. 11 (

b) scaffolding amounted to a “fundamental” transformation rather than mere “minor refinements”. Nothing less, the Court made clear, was “capable of responding to the challenges facing timely justice in this country”. This “real change”, as said in the following paragraphs, “require[s] the efforts and coordination of all participants”.

By way of illustration, For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently.

Similarly, the Supreme Court strenuously encouraged, at paras. 139 and 140, the courts, both trial and appellate, and provincial legislatures and Parliament to “implement … more efficient procedures” that are “more conducive to timely justice”, including ensuring that “the criminal justice system … is adequately resourced”. [ 64 ] The Applicant’s response to his arrest and prosecution was throughout consistent with the assertion of his right to a speedy trial. Through counsel, he pressed for disclosure, the resolution of jurisdictional concerns, and the provision of those particulars necessary to expeditiously

schedule necessary motions so as to preserve endangered trial dates.

The defence pre-trial applications, as conceded by Crown counsel, were far from frivolous. (If only by way of retrospective validation, the complainant’s counsel consented to both the production and admissibility of portions of the subpoenaed third-party records on the basis, if overly simplified, that their probative value outweighed countervailing privacy and societal interests.) The defence set a JPT the very day materially complete disclosure was finally provided, made fruitful suggestions to expedite appointment of counsel for the complainant, worked with the complainant’s counsel to secure missing clinical records, and endeavoured, if futilely, to alert Crown counsel to the possibility of his unlawful disclosure of the complainant’s medical records. [ 65 ] I am satisfied that the defence consistently conducted itself in the letter and spirit of the Jordan mandate.

Despite three years to absorb and implement the lessons of Jordan , I conclude that the Crown, at least in instant case, did not. Disclosure was incomprehensibly dilatory. Legitimate and repeated defence requests were subject to protracted response and lapsed undertakings. The exercise of critical prosecutorial discretion was delayed, despite the recurrent urgings of the defence. The planning for required motions was inadequate and there was little sustained effort to safeguard their timely occurrence.

These and other instances of prosecutorial inefficiencies, inattentiveness and strategic complacency adversely impacted on trial and motions scheduling and, perhaps most importantly, the justice system’s capacity to respond to unplanned events in a timely and effective manner, resulting, ultimately, in the irredeemable frustration of the Applicant’s s. 11 (

b) rights. (

b) Crown Conduct Preceding Alleged “Discrete Events” (

i) Introduction [ 66 ] Defensible reliance on the doctrine of exceptional circumstances depends, as said by the Supreme Court in Jordan , at para. 112 , on the Crown demonstrating that, “ it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control”.

Discharge of this burden, the Court continues, may, as a practical matter, depend on whether the Crown can establish that it, “ act[ed] proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise ” (emphasis added). [ 67 ] The conduct of the Crown, particularly during the first year-plus of these proceedings, better illustrates the impediments that

historically plagued the realization of speedy trials than the proactive ethic endorsed by Jordan . The Crown’s early failure to proceed with celerity effectively squandered both its capacity to meaningfully address and its legal competence to lawfully excuse the excessive delay.

This is hardly the first case in which the distant bell of a presumptive ceiling, rather than inspiring proactive planning and expeditious carriage of the prosecution, appears to have lulled the Crown into indifference and inaction until, as here, the constitutional deadline is plainly imperilled. (ii) Delayed Disclosure [ 68 ] Disclosure affords one conspicuous example of the Crown’s departure from the tenets of Jordan . The police investigation was complete on May 28, 2018, yet no disclosure was available at the Applicant’s first appearance, nearly two months later, on July 23 rd .

Despite repeated defence requests, materially complete disclosure was not provided until November 26 th – more than five months after the Information was sworn and six months after police closed their investigation. There is nothing voluminous, legally contentious or otherwise unusual about the disclosure ultimately afforded the defence. Nor did the Crown advance any explanation, either as the events unfolded or by way of retrospective rationalization, for the delay in fulfilling its disclosure obligations.

Further, the delay mattered: while the defence advanced the matter by scheduling a JPT the very day it received full disclosure, I infer from the preceding correspondence that it was prepared to and would have done so months earlier had full disclosure been timelier. (iii) Delayed Decision-Making [ 69 ] The slow resolution of the question of whether to proceed with the charges under the YCJA or, as originally laid, by way of an “adult” Information is a second source of Crown-engendered delay.

The Crown’s office knew, or upon a review of its own brief, would have quickly appreciated the need to determine the proper court in which to prosecute the Applicant. The OIC had alerted the Crown to the jurisdictional concern before the Applicant’s first appearance. Beginning a month later, in August 2018, the defence repeatedly asserted that the Applicant be treated as a “young offender” subject to the protections afforded by the YCJA .

Relying solely on the information in the disclosure brief, defence counsel several times sought to educate the Crown as to the factual and legal propriety, in the defence view, of proceeding in Youth Justice Court. Repeatedly, the Crown’s office demurred, allowing the possibility but deferring any final decision for nine months, until April of 2019 when a YCJA Information was finally placed before the court.

Three months earlier, in January of 2019, three court days in August had been set down for the Applicant’s preliminary inquiry on the understanding that the matter was to be treated as an adult prosecution. [ 70 ] The consequences of the belated change of prosecutorial direction were readily predictable. The opportunity to

schedule trial dates earlier available to court and counsel was lost. New hearing dates were required to accommodate a lengthier trial. In the result, the August preliminary hearing dates were vacated and later dates, in October, set for trial. Further, the defence Mills application now needed to be promptly addressed. As only a trial court can entertain such application, prosecution of the motion had properly lain dormant pending a justice’s decision with respect to the Applicant’s committal, if any, to trial.

As a trial was now certain, the production application had to be scheduled sufficiently in advance of the mid-October trial dates – a mere two months in advance of the presumptive ceiling. [ 71 ] As the record makes patent, accommodation of the Applicant’s s. 278.3 records application did not go well, largely as a result of Crown delays in the scheduling of dates, the appointment of counsel for the complainant and, as next canvassed, providing the tombstone particulars essential to defence service of subpoenas on third-party record-holders. [ 72 ] To be clear, I am not deciding in which court the Applicant’s trial ought properly to have proceeded or otherwise questioning the exercise of the Crown’s prerogative.

I have no doubt, however, that the Crown’s protracted hesitation to resolve this issue and ultimate change of course needlessly delayed the Applicant’s prosecution. The choice of jurisdiction impacted both the Applicant’s procedural rights and protections and the sequencing and scheduling of his trial and its preliminary motions.

And again, as with the sluggish pace of disclosure, the Crown has advanced no explanation for the delay in its decision to finally proceed in Youth Justice Court. (iv) Delays Affecting the Third-Party Records Application [ 73 ] Once the October YCJA trial dates were fixed, attention turned to the scheduling of the third-party records application. The defence sought to fix the hearing in the summer (ideally August) of 2019 – some two months before the Applicant was to be arraigned.

Had there been a preliminary inquiry, the complainant would undoubtedly have been questioned about her counseling history so as to gather the tombstone particulars – the names and addresses of the therapeutic providers and facilities and the approximate dates of the complainant’s attendances – necessary to subpoena any record-holders for purposes of a s. 278.2 application.

Absent a preliminary inquiry, a sensible alternative protocol (and the one seemingly adopted in at least this courthouse) is for the Crown or the police (with or without the assistance of counsel for the complainant) to collect the particulars essential to perfection of the application and then make timely disclosure of them the defence. [ 74 ] Again the goal of timely disclosure proved elusive. To no avail, the defence since September of 2018 sought tombstone particulars of the records the complainant shared with the police.

In March 2019, a month before the swearing of a YCJA Information was confirmed, defence counsel advised the Crown of its intention to then bring a s. 278.3 application. Beginning in early-July 2019, by way of repeated email and voice-mail communications, the defence reiterated its requests for the details it needed to commence its records production motion. Even defence service of a pro forma Form 1 records application on August 1 st proved insufficient to extract the information necessary to properly complete the motion or even prompt a substantive response.

In expectation that the particulars would soon be provided, the defence reserved September 18 th as a return date for the subpoenas it intended to serve on the third-party record-holders. On August 30 th , Crown counsel advised that arrangements had been made to secure October 17 th (mere days before the Applicant’s trial was scheduled to commence) for the s. 278.2 application, and that the defence could expect “the names of the record holders ASAP”. [ 75 ] In the end, counsel for the complainant (for which appointment the Crown did not seek an order until August 20 th ), rather than

the Crown, provided the defence with the essential third-party particulars – but not until September 16 th , two days before the date earlier- scheduled for return of the record-holder subpoenas. Inevitably, the return date was adjourned, if only to October 2 nd , while that scheduled for the records production application itself, October 17 th , was preserved. The defence filed its now perfected application record two weeks in advance, on September 27 th .

As earlier noted, Crown disclosure (or over-disclosure, as it transpired) of the particulars of the complainant’s medical records in its possession was first provided to the defence on October 7 th , more than a year after the first of multiple requests for release of this information. [ 76 ] As evident from the earlier-detailed procedural history of the case, the incomplete returns of one of the subpoenaed record- holders and issues arising from the Crown’s breach of the complainant’s protected privacy interests prevented determination of the Mills application on October 17 th .

As a result, the hearing was extended into the following week, eroding the limited dates reserved for the Applicant’s trial. I return to these incidents below, under the rubric of “discrete events”. However, I have no difficulty concluding that this adjournment, and the subsequent prejudice of the Applicant’s right to a trial within a reasonable time, could well have been avoided or, at minimum, preemptively managed had the Crown provided the defence with the names and addresses of the third-party record- holders in a timely manner.

As said at para. 90 in Jordan , and earlier cited, the focus in cases, as here, where the delay exceeds the presumptive ceiling is on whether the Crown, throughout 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. In my view, the Crown has too often not “done its part to ensure that the matter proceeds expeditiously”. (

c) Exceptional Circumstances (

i) Introduction [ 77 ] As directed by Jordan , the approach to assessing the mitigative value of Crown claims to exceptional circumstances first directs analytical attention to those discrete events that may be justifiably excluded from the calculation of unreasonable delay. Such events, to the degree recognized, are then deducted from the “net delay”, here 22 months.

If the “remaining delay” still exceeds the presumptive ceiling of 18 months, consideration turns to whether the particular complexity of the case is such as to excuse that residual delay. [ 78 ] As more fully developed below, neither the anticipated evidence nor the issues that define the case at bar render it complex in the sense sanctioned by Jordan and later authorities. To the extent that the defence motions upon which the Crown relies in support of its complexity argument were beset by procedural or scheduling challenges, any attributable delay is more properly treated as a facet of discrete events.

As Cody , at fn. 2, instructs, and as earlier cited, “ once a period of delay has been deducted as … a discrete event, it should not be double-counted by taking it into account when assessing case complexity”. (ii) Systemic v. Exceptional Circumstances [ 79 ] Although far from a discrete event, the retirement of several judges at this court affords some background to the delay affecting this prosecution. The judicial complement for Metro West Court is eleven judges. Three of these eleven judges retired in 2019: the first in March and the second in June.

Both served as full-time members of the Court until their 75 th birthdays, at which time their judicial authority expired. In other words, the dates of their respective retirement from the bench were entirely predictable. A third judge, following notice of his pending retirement, withdrew from full-time service in August. In the course of 2019, there was a single judicial appointment to Metro West Court. In short, the Court was “down” one judge for most of 2019 and two (or nearly 20% of its complement) beginning in August.

The shortage of judicial resources was well known to the local legal culture, as Crown counsel acknowledged in an exchange during submissions. [ 80 ] The number of cases processed at Metro West Court in 2019 did not decline in sympathy with the court’s judicial scarcity. Metro West is a notoriously busy courthouse. Its criminal cases routinely tax its full judicial complement.

Judicial absences are filled, by necessity and where practicable, by per diem judges – semi-retired provincial court judges who are entitled to preside a fixed number of days a year (at most, approximately half those of full-time judges) until they turn 75, who have signaled their willingness to continue judging on a part-time basis, and whose availability (a matter of individual discretion) pairs with the needs of the court requesting assistance. [ 81 ] As their designation suggests, per diem judges are generally not expected to sit for more than a few consecutive days at a single courthouse.

Like substitute school teachers, they fill short-term vacancies in a judicial roster, helping bridge a gap until the regularly assigned judge returns or a replacement appointed. As a result of their personal agendas, liberty to decline offered assignments, pre- arranged commitments to multiple courts, and limited authorized sitting days, per diem judges are rarely asked to assume carriage of multi-day trials, particularly those with indefinite termination dates.

As a general proposition, the schedules of per diem judges do not afford the certainty or flexibility necessary to reliably respond to changing circumstances and the pressure of an approaching presumptive ceiling. [ 82 ] The procedural history of the instant case illustrates some of the potential impacts on trial scheduling and completion when a court is compelled to operate without adequate judicial resources.

The fixing of motions dates were delayed while the parties awaited confirmation of the availability of a per diem trial judge to preside over a trial which the reduced complement of the court could not otherwise accommodate. Adjournments required aligning counsels’ and the court’s calendars with that of the presiding per diem judge.

Efforts to abbreviate or limit delay were met with an added and otherwise unnecessary layer of administrative complication triggered by the vagaries and uncertainties that attend reliance on per diem judges. [ 83 ] To be clear, these difficulties had nothing to do with the evidence or issues that define this case. Nor were they in any way unforeseeable; indeed, quite the opposite. Unlike cases of sudden death or disabling illness, the judicial vacancies, and their timing,

were here entirely predictable. The attendant risk of trial delay was readily avoidable through the timely appointment of the requiredjudges. For whatever reason, the Attorney-General has delayed filling these vacancies. Far from a discrete event, the prolonged failure toreturn the Metro West bench to its full complement is a systemic problem, one perpetuated by that executive branch of governmentresponsible for the management of the provincial courts.

As the Supreme Court directed in Jordan, at para. 140, “timely justice”, obligesthe provinces to ensure “the criminal justice system … is adequately resourced”. [84] The obligation to respect an accused’s right to trial without unreasonable delay does not fall exclusively on a Crown prosecutor.The state, writ large, shares this constitutional imperative. The Province’s protracted inaction in affording the assets necessary for thedelivery of timely justice is a systemic rather than exceptional circumstance.

The state, like Crown counsel, cannot excuse delay which isa product of its own making. [85] A similar challenge arose in R. v. Villanti, 2018 ONSC 4259 , [2018] O.J. No. 3731, a factually more sympathetic casefrom the Crown’s perspective. Unexpectedly, two judges had fallen ill, delaying the Superior Court’s capacity to

schedule thedefendant’s trial. Justice Croll, at para. 33, “accept[ed] that the illness of two judges is a discrete event that could amount to exceptionalcircumstances”. However, she continued, at para. 37, their “illness, as a discrete event, is distinct from the delay caused by scarcejudicial resources”. “[I]t is axiomatic”, she concluded, at para. 41, “that courts must be properly resourced with the appropriatecomplement of judges”.

Failing same, she stayed the charges for unreasonable delay. [86] In fairness, Crown counsel before me has never advanced a claim of exceptionality premised on the shortage of judicialresources. Three decades after R. v. Askov, [1990] 2 S.C.R. 1199, , systemic deficiencies cannot justify excessive delay. (iii) Discrete Events 1. Introduction [87] The Crown’s claim of discrete events rests on delays affecting the scheduling and completion of the applications dealing with,first, the production and, second, the admissibility of the complainant’s clinical and counseling records.

Integral to this argument is theimpact assigned to my reconsideration of whether the s. 278.92 admissibility regime applied to the records I had earlier ordered producedto the defence. 2. The Records Production Application [88] Turning to those circumstances characterized as discrete events, Crown counsel first points to the unraveling of the records production application on October 17, 2019.

As a result, he says, the Mills application was extended beyond October 17th (the sole datescheduled for the hearing) to those reserved for the Applicant’s trial and, with domino-like inevitability, this then led to the adjournmentof the trial itself and, ultimately, to continuation dates beyond the presumptive ceiling. Further, says the Crown, the defence was“complicit” in fixing only a single date for the Mills application. [89] The Crown’s reconstruction is tendentious.

Despite its graphic imagery, the Crown theory as to the unforeseeability and unavoidability of the events that caused the October 17th hearing to go off the rails loses much of its force on closer inspection. The application could not be determined on October 17th because the evidentiary record was both incomplete and, if inadvertently,erroneously misleading. The first defect was attributable to the still-unexplained failure of complainant’s physician, Dr. M, to provide thecourt with copies of the records she had been subpoenaed to produce.

Responsibility for the second, involving the statutorily prohibiteddisclosure of records implicating the complainant’s privacy interests, falls entirely to the Crown. [90] Crown counsel is not answerable for Dr. M’s slow and incomplete response to her subpoena. I have no difficulty, however,finding that the Crown’s laches in facilitating the necessary record-holders’ tombstone particulars to the defence, in scheduling therecords production hearing, and in arranging for the appointment of counsel for the complainant all contributed to the necessaryadjournment.

The practical problem was not the fact that only a single day was scheduled for the records production application but thatthe hearing had been set so proximate to the Applicant’s trial that any cause for adjournment or continuation would almost certainlytrespass on the dates fixed for that trial. [91] As earlier detailed, the defence had many times requested the record-holders information it needed to subpoena the third-partyrecords in a timely manner. It had also invited the Crown to consider alternative appointees as counsel for the complainant to allow forearlier and more flexible scheduling of the hearing.

And, from early July of 2019, the defence urged that the records productionapplication be set down for August or September – at least a month before the Applicant’s scheduled trial commencement date of October 22nd. In the end, the s. 278.3 hearing was not scheduled until October 17th – only three juridical days before those set down forthe Applicant’s trial. [92] While it is fair to characterize Dr. M’s failure to fully comply with her subpoena as unexpected, it’s prejudicial impact on thetiming of the Applicant’s trial and his s. 11(

b) rights cannot fairly be described as unavoidable. As Jordan, at para. 70, makes clear: It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonableavailable steps to avoid and address the problem before the delay exceeded the ceiling. I do not mean, with the advantage of hindsight, to appear to be micromanaging the Crown’s conduct of this prosecution in concludingthat “reasonable available steps” were not taken with appropriate dispatch. The Applicant’s first trial dates were set down less than twomonths shy of the presumptive ceiling.

The records production application was readily predictable (as was, on the Crown theory of itsuniversal application, the records admissibility motion that followed). So too was the risk that any impediment to prompt resolution ofthese applications would impact the scheduled trial dates and thereby jeopardize the timely completion of the Applicant’s trial. TheCrown’s constitutional imperative to make forward-thinking, prophylactic efforts to preserve the Applicant’s right to a trial withoutunreasonable delay was not meaningfully honoured.

Had the records application been scheduled sufficiently in advance of the trial date,the problem attending Dr. M’s missing files would have proved manageable. Indeed, her complete records were before the court on the

application return date, a mere six days after the October 17 th adjournment. [ 93 ] To be clear, whether or not the complete files subpoenaed from Dr. M were tendered on October 17 th , the Crown’s improper disclosure of the complainant’s medical records would independently and inevitably have compelled an adjournment.

The defence required time to correct the evidentiary record and, more significantly, to reconsider and amend the argument it had premised on the Crown’s mistaken assurance that the fully informed complainant had voluntarily consented to release of the medical documentation in the Crown’s possession. [ 94 ] Several obvious layers of irony inform these developments. The defence had pressed for the necessary particulars of the Crown-held files for over a year.

When finally released, the defence, to no avail, immediately alerted the Crown to the risk of legal impropriety in the Crown disclosure of these records and offered their return. While the complainant’s counsel undoubtedly compounded by the problem by not objecting to the release of her client’s records until the night preceding the scheduled application, her response may well have been far more timely had the Crown not effectively waited until the cusp of the hearing to finally respond to the repeated defence requests for the particulars of these files.

In Jordan , at para. 113 , the Supreme Court made clear that, “the defence cannot benefit from its own delay-causing action or inaction”. Nor can the Crown rely on exceptional circumstances of its own manufacture to excuse unreasonable delay. 3. The Records Admissibility Application [ 95 ] The final arrow in the Crown’s discrete-event quiver is directed to the delay provoked by my change of mind as to the applicability of the s. 278.92 admissibility regime.

In brief review, the Applicant’s trial was adjourned for continuation from October 25 th (the first and only day on which evidence was led) to December 16 th , the next available court date. In the interim, I undertook to render a ruling by November 8 th on a defence application (effectively joined by the Crown) for directions as to whether the complainant’s records now in the possession of the defence were subject to the screening procedure prescribed in ss. 278.92 - .94.

If so, the parties agreed to argue the admissibility application on November 18 th , and then adjourn the matter for further evidence at trial. If not, the interim hearing date would be vacated. Either way, the trial was scheduled to resume on December 16 th – less than a week before the 18-month anniversary of the swearing of the Infor

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