In a recent article titled The work does not stop once the handcuffs are applied’: Judge tosses sex assault case, slams ‘terminal’ Toronto police delays Toronto Star Courts and Justice Reporter, Jacques Gallant, drew attention to the increasingly common disclosure delays currently plaguing Toronto’s court system. In the case described by Gallant, Justice Waby of the Ontario Court of Justice (OCJ) stayed sexual assault charges where it took police a year to disclose key CCTV footage to the defence, which in turn delayed the setting of the accused’s trial. In the end, and accounting for periods of delay caused by the defence, it took 21 months to get the accused to trial. Justice Waby described the delay as “woefully unacceptable” and found that the accused’s constitutional right to be tried in a reasonable amount of time had been violated.
The issue of disclosure delay is not limited to the Toronto region. In Brampton—a region notorious amongst defence counsel for disclosure delay—another judge of the Ontario Court of Justice recently stayed sexual assault charges, where it took the Crown 7 months to disclose the complainant’s video-taped statement to the defence. The complainant had given her statement to the police weeks before the accused was even arrested. As such, the police investigation was complete by the time the accused was arrested. In case involving similar circumstances, Justice Harris, a judge of the Superior Court of Justice (SCJ) in the region, found that disclosure could have been provided to the accused the day of the charge; even considering a backlog of cases in the system and some of the administrative procedures that must take place, it should have taken no more than a month.
This type of inexplicable disclosure delay flies in the face of Jordan—the well-known Supreme Court decision that set presumptive deadlines (known as “ceilings”) for accused persons to have their trials. The disclosure process is at the very core of the trial process. Disclosure is essential for an accused person to develop a defence strategy, make fundamental decisions—for example, whether to be tried by a judge alone or a judge and jury—and to properly estimate how much time will be needed for trial. Accordingly, disclosure delays bring the trial process to a complete standstill. The Supreme Court was clear that the presumptive ceilings (18 months in the OCJ and 30 in the SCJ) were not meant to be aspirational targets.
Unlike the Toronto case before Justice Waby, in the Brampton OCJ case, the total delay was “under the ceiling”, meaning that the accused was able to get trial dates in the Ontario Court of justice in less than 18 months. Where the total delay is “under the ceiling”, the accused person must satisfy the judge that he or she meaningfully tried to move his or her case forward and that the case took markedly longer than it should have. In the Brampton case, the Accused had repeatedly written to the Crown to request the statement, had raised the missing statement in a pre-trial meeting with the Crown, and had complained about the missing statement in Court. In essence, there was nothing more the Accused could have done; he was powerless to move his case forward.
The solution to disclosure delays lies “upstream” with the police and with the Crown—it cannot be that accused persons are forced on to trial in the absence of complete disclosure. Forcing the accused onwards without key disclosure prioritizes expediency at the cost of an accused person’s fair trial rights.
