R. v. L.L., 2023 ONCA 52

what you need to know

- Accused persons are justified in delaying their election (re: mode of trial) until Crown provides important and essential first party disclosure that could assist the accused person in making strategic decisions about the conduct of their trial.

- It is open to an application judge deciding an 11(b) application to conclude that, in the circumstances of a given case, the COVID-19 pandemic had no impact on the scheduling of a given case.

BACKGROUND

The respondent, L.L., was charged with two counts of sexual assault against his intimate partner. The case proceeded in the Ontario Court of Justice triggering a presumptive ceiling of 18-months. The total delay in this case was 22 months and 11 days. The applications judge ordered a stay of proceedings against the respondent on the basis of unreasonable delay. The Crown now appeals that stay.

There were two main issues to be decided on the 11(b) application: (1) did L.L. act reasonably in refusing to elect his mode of trial until he received certain disclosure? and (2) did the COVID-19 pandemic have any impact on the scheduling of the trial. The application judge decided both issues in favour of L.L. The Crown seeks to attack both of these findings on appeal.

Disposition - Crown appeal dismissed.

Late Disclosure/Mode of Election Issue

The parties dispute the roughly 5 month period between when initial disclosure was made and when the respondent made his election as to mode of trial. After receiving initial disclosure, defence counsel sent a request for additional items including occurrence reports and other documents relating to incidents between the respondent and the complainant. The respondent took the position that this material was necessary to make an informed decision as to election.

The Crown was not responsive to this request and ultimately took the position that the items were 3rd party records. As a result, the respondent brought a disclosure motion in the Superior Court. The motions judge ruled that the documents were 1st party disclosure but commented that the defence ought to have made its election even in the absence of this disclosure.

The trial judge did not err in finding that the period of delay prior to the election was not attributable to the defence:

"The requested occurrence reports, in my view, were not trivial in nature. They were not dated. …The investigative records contained information about the interactions of the complainant and the Applicant in the days and weeks leading up to the complainant’s allegations of sexual assault. They also included a statement by the Applicant in relation to these interactions.”

COVID-19 Pandemic Issue

At the hearing of the 11(b) application, the Crown chose to convey its own state of knowledge about the impact of the impact on the scheduling of trials in that jurisdiction referring to the “trickle down” effect of the pandemic on trial scheduling.

In the circumstances of this particular case, however, the application judge concluded that the pandemic had no impact on the scheduling of this case. It was open to the application judge to reach this conclusion; the application judge did not err in reaching this conclusion.

For more information on 11(b) and mode of trial check out Emond’s “Prosecuting and Defending Sexual Offence cases, 2nd Edition”, Chapter 1, Initial Considerations, II. Defence Perspective, (j) Mode of Trial and Preliminary Inquiry, volume 4 of the Criminal Law Series.

Read full decision here.