R v L.L.

R. v. L.L.

2023 ONCA 52
Ontario Court of Appeal — Huscroft, Trotter and Harvison Young JJ.A. | January 26, 2023

Background

L.L. was charged with two counts of sexual assault against his intimate partner on August 13, 2020. What should have been a straightforward prosecution turned into a disclosure nightmare that lasted over 22 months. The Crown took four months and seven written requests from defence counsel before providing basic disclosure in December 2020. When defence counsel immediately requested four occurrence reports about incidents between L.L. and the complainant, L.L. refused to elect his mode of trial until he received them — arguing the reports were essential to making strategic decisions about how to defend himself.

The Crown dragged its feet for another two months before finally taking the position that the police-created occurrence reports were "third party records" (which turned out to be completely wrong). L.L. had to bring a motion in Superior Court, where Justice Akhtar ruled the reports were obviously first party disclosure that should have been provided immediately. The total delay exceeded the 18-month Jordan ceiling for Ontario Court of Justice cases, and L.L. successfully applied for a stay of proceedings under s. 11(b) of the Charter.

Issues

1. Was L.L.'s refusal to elect his mode of trial for five months while waiting for occurrence reports unreasonable "defence delay"?
2. Did COVID-19 pandemic impacts constitute an exceptional circumstance that could excuse some of the delay?

The Defence Right to Essential Disclosure Before Election

The Court of Appeal firmly rejected the Crown's argument that L.L. should have elected immediately after receiving basic disclosure. The application judge found that L.L. "was not insisting on every piece of disclosure before making an election" — he specifically identified the occurrence reports as the only additional material needed for a meaningful discussion with his client about trial strategy. These reports contained information about interactions between L.L. and the complainant in the days and weeks leading up to the alleged sexual assaults, including L.L.'s own statement about those interactions.

The court emphasized that defendants have the right to make informed strategic decisions about their defence, and that includes having access to essential disclosure before choosing their mode of trial. The fact that a Superior Court judge later criticized L.L.'s approach was irrelevant — that judge was only tasked with determining whether the records should be disclosed, not whether the election timing was reasonable. The Court of Appeal made clear that "all players in the criminal justice system must do their part to avoid delay," but the question of election timing belonged to the s. 11(b) application judge, not the disclosure motion judge.

COVID-19 and Exceptional Circumstances

The Crown tried to argue that pandemic-related court disruptions should excuse some of the delay, but they failed to provide any actual evidence of how COVID-19 affected this specific case. The application judge, drawing on her knowledge of the College Park courthouse where she sits, found that this case "entered the justice system when courts had re-opened" and that "trial coordination was evolving and coping." The Court of Appeal refused to admit statistical evidence that the Crown tried to introduce for the first time on appeal, noting that this data was available during the original application and there was no excuse for the Crown's failure to present it then.

Key Takeaway

You have the right to receive essential disclosure before making strategic decisions about your defence — even if it means delaying your election.

This case shows that defendants can't be forced to make blind strategic choices while the Crown sits on obviously relevant disclosure. However, you must be specific about what disclosure you need and why it's essential — don't demand every possible document before proceeding.