Crown: K. Sole-Kahler, Office of the Crown Attorney, Toronto
Defence: Craig Penney & Lucas Rebick, Criminal Defence Lawyers, Toronto
¶ 1 The defence has brought a s. 11(b) application, seeking a stay of the charges against Mr. C.M. He is charged with a number of counts relating to possession of child pornography.
¶ 2 Counsel submits that the net delay in this case is just over 25 months – well over the R. v. Jordan, [2016] S.C.J. 27 guideline of 18 months – in fact, some 7 months over the presumptive ceiling. Counsel attributes the delay to one single factor – the delay in disclosing the search warrant packages.
¶ 3 The Crown submits that there are three discrete areas of defence delay. Additionally, there is a period of extraordinary delay caused the pandemic. Combined, these result in a net delay under the Jordan, supra ceiling - just under 17 months.
¶ 4 The focus of these reasons is on defence delay. The Applicant submits there was none. The Crown submits the defence could have “moved the matter along” in the absence of the search warrant packages, including the Informations to Obtain (ITO).
¶ 5 In terms of the extraordinary delay, counsel both submit similar periods be deducted because of the pandemic and the extra challenge in setting trial dates – the Applicant suggesting 110 days and the Crown suggesting 128 days.
¶ 6 For the following reasons, I find that the delay in this case is unreasonable and as such, the charges will be stayed.
History of the Proceeding:
¶ 7 On Sept. 23, 2020, the Applicant’s home was searched pursuant to a warrant, storage devices were seized and the Applicant was arrested and charged with these offences.
¶ 8 The information was sworn on Sept. 23, 2020.
¶ 9 The anticipated last day of trial is Nov. 3, 2022, resulting in a total delay of 771 days or 25 months, 11 days.
¶ 10 Below, I have summarized the relevant details regarding disclosure and communications between the assigned Crown and counsel.
30th Sept / 20 – within a week of arrest, Mr. Penney, counsel for the accused, e-mailed the Crown and clerk an Enhanced Designation (E.D.) and indicated his willingness to comply with the E.D. directive and that he would accept disclosure;
Oct. 14 / 20 – minimal disclosure was provided;
Nov. 19 / 20 – further disclosure was provided;
Dec. 23 / 20 – Mr. Penney emailed the Crown’s office inquiring about the name of the assigned Crown and seeking to schedule a pre-trial. The Crown’s office responded the next day.
Jan. 7 / 21 – Mr. Penney e-mailed the assigned Crown, noting the outstanding disclosure, including search warrant packages, forensic reports from the examination of the seized computers, as well as recordings of the accused’s statements. He indicated he would undertake to “meaningfully engage with you regarding the pre-trial process”. The matter was adjourned in court to April 8th.
Jan 12 / 21 – further minimal disclosure was provided (although none of the above items), about which Mr. Penney wrote to the Crown on Jan. 14 / 21. The Crown agreed to look into the issue;
Jan. 27 / 21 – Mr. Penney was notified that disclosure was available on the “hub” and he downloaded it, including the applicant’s statements, further police notes and a LACE (1 page) report.
April 8th / 21: By the 5th court appearance on April 8th, disclosure of the full forensic report of the computer contents was still outstanding (as was the search warrant package) and the matter was adjourned to May 28/ 21. The Crown indicated that disclosure should be complete “soon”. Mr. Penney asked Crown pre-trial (CPT) and May 10th was agreed upon. The Crown on this Application, Ms. Sole-Kahler (who was not the assigned Crown), submits that a CPT could have been held earlier, but for a personal circumstance related to Mr. Penney.
April 27 + 28 / 21: Counsel downloaded further disclosure (about which he was advised 4 days earlier). The following day, significant disclosure was made of banking documents and related warrants and LACE image and video reports by Purolator. The assigned Crown offered to personally drop off the disclosure to Mr. Penney in the circumstances. It was also too large to disclose electronically. The search warrant packages remained outstanding.
May / 21: Crown pre-trial. Outstanding disclosure and trial issues were discussed (about which counsel afterwards sent a lengthy e-mail to the Crown regarding outstanding disclosure). Counsel agreed to schedule a JPT. Counsel also wanted Det. Cst. Saini’s opinion with respect to what inferences could be drawn with respect to user knowledge and control and what were the strongest and weakest files. The LACE report that counsel had been provided did not make distinctions between various types of files – for example, no distinctions between unique and duplicate images. To that end, Mr. Penney sent a very detailed e-mail to the assigned Crown setting out the areas where he would appreciate DC Saini’s guidance. He noted that the request, in his opinion, formed part of the pre-trial discussions and was not a disclosure request. He was of the belief that the opinion would assist in stream-lining issues for trial.
May 26 / 21: Counsel e-mailed the Crown that he was still waiting for the search warrant packages. The matter was adjourned in court to June 30.
June 8 / 21: The JPT was adjourned by the presiding justice to allow further disclosure to be made – given the search warrant and production order packages were still outstanding. D.C. Saini had also not completed his opinion at that point (although this was not part of the Crown’s disclosure obligation).
June 23 / 21: the outstanding search warrants and ITOs were disclosed, approximately 350 pages in length.
June 30 / 21 – a second JPT was conducted. The Crown was agreeable to an adjournment for Det. Cst. Saini’s opinion, on the understanding that the reason was not for disclosure. Resolution discussions were ongoing. The matter went to Aug. 25th to continue these discussions.
On Aug. 3 / 21, the Crown e-mailed Mr. Penney about the anticipated evidence from DC Saini. She gave an update as to where the officer was in his examination thus far, and wrote that “if we are going to continue to trial then I will have them continue assessing.” Mr. Penney replied that same day, saying “we are on a trial track.” The Crown responded, saying “Alright then, I would like to set dates as soon as possible please” and reiterated her position that assist in moving it forward.
On Aug. 9, Mr. Penney replied that they can move forward to schedule the trial.
Aug. 23 /21: a third JPT was held and trial time estimated.
Sept. 13 / 21: a trial scheduling date was held with the trial coordinators and the earliest dates of Sept. 27-31, October 31 and Nov. 3 / 22 were agreed to by both counsel.
As of June 14 / 22, no earlier trial time had become available.
Legal Framework:
¶ 11 At this point, the Jordan, supra formula is well known:
¶ 12 Total delay is calculated from the swearing of the information to the anticipated conclusion of the trial.
¶ 13 Defence delay is identified and subtracted, resulting in the net delay.
¶ 14 If the net delay exceeds the presumptive ceiling (18 months in this case), then the delay is presumptively unreasonable.
¶ 15 The Crown may rebut that presumption through evidence of “exceptional circumstances.”
Position of the Parties:
¶ 16 The Crown: Ms. Sole-Kahler submits that discrete periods of time should be deducted from the total delay because of defence delay and exceptional circumstances relating to the defence and to Covid: Dec. 23 – Jan. 7 / 21: a period where the Crown says the defence could have conducted a CPT, as the Crown was available; (15 days)
March 1, 2021 – April 8 / 21: a time where a CPT should have been conducted in accordance with the Enhanced Designation is further defence delay (38 days);
April 8 – May 11 / 21: a period where a personal issue arose with defence counsel, thus delaying a CPT. The assigned Crown responded to counsel by advising they could discuss the case when counsel was ready. A CPT was requested by defence and May 10, 2021 agreed upon. On April 21, 2021, the Crown made special arrangements to have a USB delivered to Mr. Penney’s office with the forensic reports. The Crown characterizes this as an “exceptional circumstance” of the defence (32 days).
June 30 to August 23 / 21: By June 30, all disclosure had been made and a second JPT held. This was a period where a date could have been set for trial, but for defence’s request of D.C. Saini. It was not until Aug. 23 / 21 that the trial estimates were confirmed and the setting of dates with the trial coordinator was to be arranged. (53 days)
¶ 17 Accordingly, the Crown submits the resulting delay is just under 17 months: the total delay (771 days) minus the defence delay (106 days) minus the delay from exceptional circumstances (defence exceptional circumstance of 32 days, plus 120 days for Covid and trial scheduling delays) resulting in a remaining delay of 505 days, just under 17 months.
¶ 18 The Crown submits there is no breach of s. 11(b).
¶ 19 The Applicant: Mr. Rebick, who argued this application on Mr. Penney’s behalf, disagrees with the Crown that any period of time ought to be deducted for defence delay. He submits that this matter could not possibly have proceeded until the Crown disclosed the ITOs and other contents of the search-warrant packages. They were not disclosed until June 23, 2021 – 9 months after the information was sworn. Accordingly, suggestions that meaningful crown pre-trials could have been held sooner or that the defence was not “moving the case along” are baseless – the defence could not make informed decisions in the absence of this disclosure about how to proceed. In the result, counsel submits the resulting delay exceeds the 18 month Jordan ceiling.
Analysis:
¶ 20 The Crown makes the valid point that in prosecutions such as these, there is significant investigation post- arrest. The search of seized computer devices is labour-intensive and time consuming and necessarily adds some time to the disclosure process.
¶ 21 In this case, however, while the forensic reports relating to the computer searches took time, it was the disclosure of the search warrants themselves that caused the most significant delay. These materials of course, unlike the forensic searches and reports, pre-dated the arrest. It may well have been that there was a mix-up by the assigned Crown in terms of procuring these items. The assigned Crown was otherwise very diligent and responsive to Mr. Penney. She was also very thoughtful in offering to drop off a USB stick with disclosure to Mr. Penney’s home at one point.
¶ 22 Unfortunately, however, procuring the search warrants and ITO’s seemed to have escaped the Crown’s review and they were not procured in a timely manner – the first request for them having been made, it appears, on May 10, 2021. The pre-trial discussions with Mr. Penney were otherwise extremely professional and attentive.
¶ 23 Not every piece of disclosure is needed before a matter can move forward – before trial dates or Crown or Judicial pre-trials can be set.
¶ 24 In this case, however, a review of the warrants and ITOs is generally a core piece of disclosure from which many decisions would flow - whether to plead guilty or not guilty, the types and length of Charter challenges, what witnesses were necessary.
Legal Principles Surrounding Defence Delay:
¶ 25 In Jordan, supra, at paras 60-67, the SCC held that defence delay has two components – the first is delay waived by the defence, which is clear and unequivocal. The second component is delay caused solely by the conduct of the defence. It comprises situations where “the accused’s acts either directly caused the delay…or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (such as frivolous applications and requests). As an example, the Court held that the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. That period will be attributed to the defence. Beyond defence unavailability, it is open to trial judges to find that other defence actions caused delay. Actions taken by the defence to respond to the charges – time taken to prepare, applications and requests, are not included as defence delay.
Analysis:
¶ 26 With respect, I disagree with the Crown’s submission that the Applicant, by not engaging in a CPT earlier, was not diligent in moving the matter along or that he was not compliant with his obligations under the E.D. He sent communications to the Crown within 7 days of the charges being laid on Sept. 23 / 20, indicating he would like to receive disclosure. The disclosure “trickled in” and on Dec. 23 / 20, Mr. Penney wrote asking for the name of the assigned Crown. At this point, the disclosure consisted of police notes, a synopsis and booking videos. It may well be that Mr. Penney could have had a CPT with the assigned Crown – but to what end? To talk about the missing disclosure? That was happening already – Mr. Penney having sent an extremely detailed e-mail on Jan. 7 /21 outlining the outstanding search warrant packages, ITOs, forensics and accused’s statements - among others. I do not attribute Mr. Penney’s failure to schedule a CPT between Dec. 24 and Jan. 7 / 21 as delay attributable to the defence. A CPT at that point would have been in name only – how could there be meaningful discussions about resolution or necessary witnesses or Charter applications in the absence of the above disclosure?
March 1 – April 8 / 21:
¶ 27 The Crown submits that this period represents another period where the defence failed to schedule a CPT.
¶ 28 At this point, some further disclosure had been made, but as of April 8 / 21, the search warrant packages and reports from the computer examinations were still outstanding. Around Jan. 14 /21, a supposed video of the accused’s statement had been disclosed to counsel, but he wrote to the Crown saying he had “just” received a download and it was, in fact, a video of the accused sitting in the back of a police van for 54 minutes. Counsel was clearly active in reviewing in-coming disclosure and active in communicating with the assigned Crown. I am not prepared to assign this period as defence delay. Of course there could have been preliminary discussions, but given the nature of the outstanding disclosure, those discussions would largely have been dancing around one of the central issues in the prosecution – how viable were the warrants and was the defence challenging them?
April 8 – May 11 / 21:
¶ 29 The Crown submits a CPT could have been held during this period – were it not for the personal circumstance of Mr. Penney that resulted in the CPT being delayed.
¶ 30 On April 21 / 21, the Crown had the forensic report (on a USB) delivered to counsel, containing hundreds of pages of documents and an 8000 page forensic report. It is not clear exactly when the assigned Crown would have been available earlier for the CPT, but she was clearly sympathetic and wishing to accommodate counsel. Other disclosure issues remained outstanding (the warrant packages) and time would be required for counsel to review the report of the computer examination. In the circumstances, it seems reasonable to allow for at least two weeks to review this substantial new disclosure before having a CPT. In the circumstances, given the negligible time that is left over, I am not going to attribute any time to the defence “exceptional circumstance.”
June 30 – Aug. 23 / 21:
¶ 31 On June 30, a second JPT was held. All disclosure had been made (the search warrants having been disclosed on June 23, 2021). At the earlier request of Mr. Penney on May 11/ 21, Det. Cst. Saini was looking into various detailed issues about the seized files. In his note to the assigned Crown on this point on that day, Mr. Penney stated that he considers “this request regarding D.C. Saini to be part of our pre-trial discussions and not a disclosure request.” By the June 30 JPT, that significant request was still outstanding and the matter was adjourned until Aug. 23 / 21. At that June 30th JPT, Mr. Penney was not prepared to make admissions about the forensics given their volume and complexity. He estimated the trial would be 3 weeks without them, thus underscoring the importance of Saini’s opinion.
¶ 32 In his earlier note to Crown counsel on May 11 / 21, Mr. Penney indicated that he was prepared to make reasonable admissions concerning the inferences to be drawn from the extracted data. In this case, the volume of data combined with the new Lace presentation made it difficult. He and D.C. Saini had been involved in a 4-day matter earlier and he hoped to secure Saini’s guidance as to how many files were readily accessible to a non-forensic user and easily viewable.
¶ 33 This time-period is somewhat difficult to characterize in the Jordan calculus. Seeking the opinion was not part of the Crown’s disclosure obligation. A clear inference can be drawn that the Crown was mindful of the s. 11(b) consequences in delaying the setting of dates (the discussion about the opinion not being disclosure certainly speaks to this). However, the Crown was obviously and rightly interested in stream-lining a trial that could last 3 weeks. The request, however, was made at the behest of the defence – although it was targeted towards stream-lining the trial, a goal of pre-trial discussions. Mr. Penney sent an extremely detailed e-mail to the assigned Crown canvassing the areas he would like Saini to consider. It was by no means meritless or frivolous. It was undertaken for legitimate reasons related to the charges. Ultimately, at the Aug. 23rd JPT, no admissions were made and 5 days were set for trial.
¶ 34 In these circumstances, I am prepared to attribute some period of delay to the defence – the Crown was otherwise ready to set a date as of Aug. 3rd. It might not have completely accurate time estimate, given Saini’s opinion was still being determined, but as noted in her Aug. 3 e-mail, she was ready to set a date. There was then delay to the next JPT on Aug. 23. Accordingly, I will attribute 20 days as defence delay. If I am wrong about this period, and all the delay should be attributed to the defence, then it is a period of 54 days.
Conclusion:
¶ 35 Given my findings above, the delay in this case is characterized as follows:
¶ 36 Total Delay: Sept. 23, 2020 to Nov. 3, 2022 = 25 months, 11 days (771 days)
¶ 37 Net Delay: 751 days (given the 20 days of defence delay, which is about 24 ½ months); the net delay exceeds the 18-month presumptive ceiling;
¶ 38 Exceptional Circumstances: 128 daysi (due to Covid-19 restrictions / setting trial dates with trial coordinator – about 4 months);
¶ 39 The time taken to trial is about 20½ months or 623 days. It is above the presumptive ceiling of 18 months. If the remaining 34 days for Det. Cst. Saini’s opinion is also deducted as defence delay, the time taken to trial is 19 ½ months, still above the 18 month ceiling.
¶ 40 Accordingly, the matter will be stayed for unreasonable delay.
