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[13] The Crown suggested before us that its consent to adjourn the April 2, 2015 pretrial because of its own last minute disclosure is unimportant in assessing unreasonable delay unless, by its nature, the information disclosed is shown to have been essential to the case. I do not agree. The accused is entitled to review disclosure they have received to determine its importance, before moving a case forward. Where, as here, that disclosure is made so late that it cannot be reviewed before a scheduled appearance, the Crown cannot fairly assert that the accused should go ahead and set a date at that scheduled appearance.
[14] The final and most important reason why it was not fair to expect D.A. to set a trial date on April 2, 2015 is that essential disclosure was still outstanding on that date.
[15] In particular, disclosure had not yet been made of the occurrence report and police officers’ notes relating to the initial complaint. That complaint was made in April of 2012 when the police attended the complainant’s home on an unrelated matter. The Crown, incorrectly, was insisting that disclosure of this April 2012 information required a third party records application, hence the delay.
[16] The importance of the records relating to the initial police complaint in a sexual assault allegation is obvious, but those records took on added significance in this case. Disclosure that had been made suggested that the complainant’s mother initiated the complaint, and there were issues relating to the mother’s credibility arising from an unsubstantiated allegation she made that D.A. had breached his bail conditions. The history of the complaint in this case mattered, as, of course, did any statements made by the complainant about what happened.
[17] Police notes about this April 2012 meeting were not disclosed until April 29, 2015. The third party records application was not heard until May 13, 2016, at which time the occurrence report itself was disclosed.
[18] This material proved to include statements from the complainant and her mother about the alleged assaults. It also included an allegation by the complainant that D.A. had attempted to persuade her not to go ahead with the complaint so that his life would not be ruined. The Crown ultimately relied upon this information at trial as post-offence conduct indicative of guilt.
[19] On August 11, 2015, two further pages of handwritten notes from the complainant were disclosed.
[20] Moreover, disclosure relating to statements made by D.A. to the police was still outstanding on April 2, 2015. While most of the information about D.A,’s statements had already been disclosed, on March 17, 2015 defence counsel advised the Crown that an officer appeared to have interviewed D.A. twice. That officer’s notes were not disclosed until June 3, 2015. Despite a number of pretrial requests, audiotape evidence of D.A.’s arrest relating to the implementation of his Charter rights was not disclosed until the third day of the trial. This information was important to the voluntariness of D.A.’s statements.
[21] Significantly, when the trial judge rejected D.A.’s Morin application he misapprehended the nature of the disclosure being sought relating to D.A.’s statements. He discounted claims by D.A. that non-disclosure relating to statements D.A. had made was material, on the mistaken basis that “there are no confessions or admissions.” In fact, at the subsequent trial the Crown led a statement from D.A. as containing relevant admissions that supported the complainant’s account.
[22] On this record, it was not reasonable for the trial judge to find that D.A. was responsible for the delay after February 26, 2015 because of an unreasonable insistence on receiving nonessential disclosure before moving the case forward. Given the role played by the Crown in delaying the progress of the case and the outstanding material disclosure, it is not fair to blame D.A. for not moving the case forward on that date, on April 2, 2015, or arguably even on May 14, 2015.
[23] Even applying the trial judge’s underestimated period of Morin delay, a delay of almost 14 months appreciably exceeds the Morin guideline for provincial trials of 8-10 months. The trial judge nonetheless denied the application because he found the case to be complex, the charges serious, and the prejudice modest.
[24] I take no issue with the proposition that a trial judge may be entitled to refuse to stay a proceeding under the Morin regime after a 14 month delay in a complex case involving a serious charge where the delay had “a modest level of repercussions” for the accused. That, however, is not this case. When defence delay is properly quantified, the total Morin delay is upwards of 17 months.
[25] Moreover, I cannot accept the trial judge’s conclusion that this prosecution was complex. This was a standard credibility case made only marginally more difficult because the prosecution involved both youth and adult charges.
[26] The trial judge may also have underestimated the prejudice to D.A. caused by the delay. The trial judge noted in his decision that a defendant who insists upon all elements of disclosure before setting dates “runs the risk of ‘being content with the pace of proceedings’”. Given that the trial judge mistakenly believed that D.A. was insisting on all elements of disclosure before setting dates, his sense of the prejudice the delay was causing D.A. may have been unfairly minimized.
[27] In my view, notwithstanding that the charges against D.A. were extremely serious, the trial judge erred in denying D.A.’s Morin application. Properly calculated, the total Morin delay came close to doubling the Morin guidelines in a non-complex case where there was some prejudice. Much of that delay was attributable to the Crown’s errors or last-minute disclosure practices. The Morin application should have been allowed. The charges against D.A. should have been stayed.
[28] I would therefore allow D.A.’s conviction appeal, set aside the convictions, and stay the proceedings on the charges that are before us.
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