WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

DATE: 20230622

DOCKET: C70746, C70797 & COA-22-CR-0273 Lauwers, Pardu and Benotto JJ.A.

DOCKET: C70797

BETWEEN

His Majesty the King Appellant

and

Patrick-Adrian Llanes Agpoon Respondent

DOCKET: C70746

AND BETWEEN

His Majesty the King Appellant

and

Shea Mais Flemmings Respondent

DOCKET: COA-22-CR-0273

AND BETWEEN

His Majesty the King Appellant

and

Atrooba Mughal Respondent

Counsel: Jeremy D. Tatum, for the appellant Chris Sewrattan and Ashley Sewrattan, for the respondent Patrick-Adrian Llanes Agpoon Chris Rudnicki, for the respondent Shea Mais Flemmings Shivani Balcharan and Anser Farooq, for the respondent Atrooba Mughal

Heard: June 14, 2023

On appeal from the stays entered by Justice Janet Leiper of the Superior Court of Justice on May 10, 2022 (C70746 & C70797) and October 3, 2022 (COA‑22‑CR‑0273).

By the Court:

I. OVERVIEW

1In this appeal we are required to reconcile the rights of an accused person to timely justice with the capacity of the criminal justice system to adjudicate criminal cases on the merits in the face of the disruptive effects of the COVID-19 pandemic. We do this with respect to these three grouped appeals but also on a more general basis in order to provide trial courts with guidance.

2All three respondents were charged on a single indictment with offences relating to human trafficking and possession and/or use of a firearm. Mughal and Agpoon were charged in December 2018. Flemmings was added a year later, in December 2019. The three respondents were before the Ontario Court of Justice until the Crown preferred a direct indictment on May 19, 2021, very shortly before the preliminary hearing was scheduled to begin on May 31, 2021. The case was moved to the Superior Court of Justice on May 26, 2021.

3A person charged with an offence has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated the remedy is a stay of the charges. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court prescribed how lower courts must assess delay in determining whether the right to be tried within a reasonable time has been violated and whether charges should be stayed.

4Jordan was not written with a phenomenon like the pandemic in mind, but its principles are adaptable. Jordan recognized that delay attributable to “exceptional circumstances” could be acceptable: at para. 68. The trial judge observed correctly that “[n]umerous rulings have considered the impact of the global pandemic in the context of s.11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.”

5While we agree with the trial judge that the pandemic constituted a discrete exceptional circumstance, in our view she did not adequately account for it. She should not have stayed the prosecutions. We therefore allow the Crown’s appeals.

II. The Issues

6These appeals turn on two issues. First, how should courts take into account the disruptions to the operations of courts caused by the pandemic as discrete exceptional circumstances for Jordan purposes? Second, did the trial judge err in how she did so?

7We turn to the issues after describing the trial judge’s rulings.

III. The Trial Judge’s Rulings

8In May 2022, the trial judge granted a stay of proceedings to Agpoon and Flemmings on the basis that their s. 11(b) Charter right to a trial within a reasonable time had been breached. Mughal did not participate in their application for reasons of cost, anticipating that the Crown would consent to a stay as against her if her co-accuseds’ application succeeded. But the Crown did not and she brought her own successful s. 11 (b) application.

9We need not delve too deeply into the case-specific delay calculations undertaken by the trial judge. Common to all three is the trial judge’s decision to fault the Crown for its delay in preferring a direct indictment, and her method of determining the amount of Crown delay to be attributed to that delay for Jordan purposes. The trial judge used what she considered to be a close comparator in R. v. Thornhill, a case prosecuted out of the same Crown office and dealing with similar facts in which the Crown was able to prefer a direct indictment within three months of courts closing. This led her to allocate 3 months to pandemic delay in Agpoon and Flemmings.

10The trial judge calculated the net delay in Agpoon, before accounting for the pandemic, as follows: 51 months total delay minus 11 months and 4 days defence delay, for a total of 39 months and 26 days net delay.

11She calculated the net delay in Flemmings as follows: 38 months and 28 days total delay minus 4 months and 25 days defence delay, for a total of 34 months and 3 days net delay.

12The application judge deducted the three months required to prefer an indictment in the Thornhill precedent to allow for discrete exceptional circumstances. The adjusted delay was 36 months and 26 days for Agpoon, and 31 months and 3 days for Flemmings, both of which remained above the Jordan threshold and were accordingly stayed.

13The application for a stay in Mughal was argued after the Agpoon and Flemmings charges were stayed. The trial judge calculated the net delay in Mughal, before accounting for the pandemic, taking the same approach as she took in Agpoon and Flemmings: 51 months total delay minus 3 months, 29 days defence delay, totalling 47 months, 1 day net delay.

14The critical difference between the Agpoon and Flemmings stay decision on the one hand, and the Mughal decision on the other, was in the trial judge’s determination of the time to be allocated for discrete exceptional circumstances. She deducted the same amount for the Crown’s delay in preferring a direct indictment in both decisions, but deducted an additional 9 months in the Mughal decision for “jury blackout periods”, when jury trials were not available in the Superior Court of Justice. More particularly, the trial judge deducted the following “blackout periods”:

• First jury blackout period: March 17 – September 14, 2020: The application judge did not deduct this blackout period, because she had already deducted 3 months and 19 days of this time in accordance with the Thornhill precedent, during which a direct indictment could have been obtained. She found that the remaining time up to September 14 would have been used for Superior Court of Justice intake and judicial pre-trials, so it would not have been reasonably available for jury trials in any event.
• Second jury blackout period: November 21, 2020 – June 21, 2021: The application judge deducted 7 months as a known blackout period.
• Third jury blackout period: December 20, 2021 – February 28, 2022: The application judge deducted 2 months as a known blackout period.

15The trial judge found that because Flemmings was back in custody, if the Crown had preferred the direct indictment in July 2020, “this case might well have been capable of reaching trial in the period between June 21, 2021 and December 1, 2021”. In other words, in the time between the second and third blackout periods. Accordingly, she declined to deduct the time between those periods as discrete exceptional circumstances.

16In the result, the adjusted delay in Mughal was 47 months, 1 day minus 3 months, 19 days for time to obtain a direct indictment, and minus 9 months for the jury blackout periods, for a total of 34 months, 12 days. Because this delay exceeded the Jordan threshold and breached Mughal’s s. 11 (b) right, the charges against her were stayed.

17Had the nine-month delay attributed to the jury trial blackout periods in Mughal been taken into account in Agpoon and Flemmings as discrete exceptional circumstances, both would have been well within the Jordan limit and their stay applications would have been dismissed.

IV. Issue One: How should trial courts take into account the disruptions to the operations of courts caused by the pandemic as discrete exceptional circumstances for Jordan purposes?

18We attend first to the governing principles found in Jordan and then apply them in the context of the pandemic.

(1) The Jordan Governing Principles

19The pandemic falls within a category of “discrete exceptional circumstances” laid out in Jordan, which the court defined, at para. 69: “[e]xceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original). This is the “only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling”: Jordan, at para. 81. The court acknowledged, at para. 72, that medical emergencies could qualify as a discrete exceptional circumstance. Although this comment was made in the context of individual medical emergencies, in our view it can be, and should be, generalized for the pandemic.

20Jordan imposed certain conditions on the Crown. For example, the burden is put on the Crown to show that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: at para. 70 (emphasis in original). But this was clearly impossible in the case of the pandemic. Further, the court referred to the Crown’s obligation to make efforts to mitigate the delay resulting from a discrete exceptional circumstance, noting, at para. 75, that “within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”. This principle applies to dealing with the backlog of cases in the emergence of the justice system from the pandemic.

21In our view, there is a systemic perspective within which the pandemic must be seen. The Jordan court said, at para. 103, “[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.” The surrounding circumstances here are systemic.

22We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, “trial judges should not parse each day or month… [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.

23We take seriously the observation by McLachlin J., as she then was, at p. 810 of R. v. Morin, [1992] 1 S.C.R. 771, which the Jordan court approved at para. 111: “…we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay”. Accordingly, the court said in Jordan that “[a] framework that is simpler to apply is itself of value.” This informs the framework we establish below.

24There are several ancillary principles. If the period of calculated delay is below the applicable presumptive ceiling – 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice – then the onus switches to the defence, which “may still demonstrate in clear cases that the delay is unreasonable”: Jordan, at para. 76. The court added, at para. 82:

[If the total delay is below the presumptive ceiling] then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11 (b) application must fail. [Emphasis in original.]

25The Jordan court added, at para. 85: “it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.”

26Finally, there is the local perspective. The Jordan court noted the need for trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: at para. 89; see also paras. 87 and 101. This instruction applies with necessary modifications to the assessment of pandemic-related delay for Jordan purposes.

(2) The Jordan Governing Principles Applied

27We have reviewed the public record of disruptions to the operation of criminal courts in Ontario that the pandemic caused. [1] These disruptions, moving from the broadest to the more particular, can be broadly grouped as follows:

(a) Province-wide court closures

28There were times where all courts in the province limited their operations to only the most urgent matters. The main province-wide closure occurred in the first months of the pandemic, beginning on March 17, 2020, and was lifted in phases over the course of the summer.

(b) Jury blackout periods

29There were several periods during the pandemic in which new jury selections and jury trials were temporarily halted. Some such blackouts were regional, reflecting local COVID risks, while others were province-wide. For example, there was a jury blackout period in the Toronto and Brampton Superior Courts beginning in November 2020, and a province-wide jury blackout period beginning on January 13, 2021, which was lifted in phases and on a regional basis at the discretion of Regional Senior Justices from July to September, 2021.

(c) Local court closures and restrictions

30In addition to the provincial court closures and restrictions, local courts imposed restrictions based on their circumstances. For example, as a result of provincial re-opening regulations, Toronto and Peel had a 10-person capacity limit in courtrooms for new, non-jury matters beginning December 14, 2020.

(d) Local availability of court facilities

31When courts began re-opening in the summer of 2020, they attempted to adhere to public health measures including physical distancing and droplet barriers. As a result of the necessary physical changes to courtrooms, not all courtrooms were open even when courts resumed operations, resulting in a more limited capacity for in-person hearings. For instance, when courts first opened on July 6, 2020, the Superior Court had only 56 courtrooms open across the province.

(e) Priorities in addressing the backlog

32As a result of the backlog of cases created by closures and the continuing restrictions limiting the number of cases that could be heard, courts were forced to triage and prioritize the order in which cases would be heard. Regional Senior Justices were given significant discretion over how best to address the backlogs in their courts, but most regions – including Toronto, where the present case was prosecuted – prioritized in-custody criminal matters over out-of-custody matters, and continuing trials over new trials.

(3) The Application of Jordan Principles to Pandemic Delays Going Forward

33Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.

34This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.

35Had this framework been applied to these cases, they all would have come under the Jordan presumptive ceiling.

V. Issue Two: Did the trial judge err in failing to take into account, as discrete exceptional circumstances for Jordan purposes, the systemic disruptions to the operations of courts caused by the pandemic?

36We now address the way in which the appeals were framed, which took the parsing approach that Jordan discourages.

37The Crown argues that the trial judge failed to take into account the systemic disruptions to the operations of courts caused by the pandemic as discrete exceptional circumstances for Jordan purposes.

38In the Agpoon and Flemmings applications for stays under s. 11(b) of the Charter, the Crown urged that the entire period between the closing of the courts on March 17, 2020 and May 19, 2021, the date on which the direct indictment was preferred, should have been counted as a discrete exceptional circumstance – pandemic delay – under the Jordan principles. This is a period of 14 months. The Crown points out that until the indictment was preferred, no defence counsel had raised an argument under s.11 (b). The parties were all proceeding on schedule.

39The Crown argues that, all things otherwise staying the same, the trial judge should have allocated the entire time period of 14 months as a discrete exceptional circumstance for Jordan purposes, rather than the 3 months she deducted for Agpoon and Flemmings, and the 3 months and 19 days she deducted for Mughal. All three cases would have come in under the Jordan threshold.

40We agree with the Crown’s approach. There was no reasonable basis on which the trial judge could reduce this time frame and she erred in doing so. It represented the earliest possible date that the matter could have proceeded.

41Consequently, it is unnecessary to address the Crown’s argument that the trial judge erred in failing to include the jury blackout periods in the Agpoon and Flemmings application as discrete exceptional circumstances, as she did in the Mughal application, or the respondents’ argument that this is a new issue which this court should not entertain.

42It is also unnecessary to address the Crown’s argument that the trial judge erred in her approach to the Crown’s decision to prefer an indictment instead of proceeding with the preliminary inquiry. As noted, the trial judge faulted the Crown for taking so long to make the decision to prefer the indictment for which she reduced the amount of attributable delay as a discrete exceptional circumstance. However, the period from pandemic onset to the date the direct indictment was preferred should be treated as discrete exceptional circumstances. The first preliminary hearing was cancelled due to the pandemic. The second preliminary hearing was scheduled with dispatch, in light of the pandemic restrictions in effect in that jurisdiction at the relevant time, and at the first dates available to all parties. The Crown’s decision to prefer a direct indictment in this matter, even at a late stage, did not affect this pandemic-related delay. It is easy to be critical of decisions made by the Crown, with the benefit of hindsight. At the height of the pandemic, it would have been very difficult to predict the impact on the courts’ capacities from week to week and to make plans for the continuation of matters.

VI. Disposition

43For these reasons, we allow the appeals. The stays in Agpoon, Flemmings and Mughal are set aside.

Released: June 22, 2023 “P.D.L.”

“P. Lauwers J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”

APPENDIX: SUPERIOR COURT CLOSURES AND RESTRICTIONS [2]

Date	Restrictions/Closures in Place	Links to Notices
March 11, 2020	World Health Organization declares a global pandemic	World Health Organization COVID-19 Situation Report 51 (March 11, 2020)
March 17, 2020	Executive Council of Ontario declares emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9.	Ontario Newsroom Declaration of Emergency to Protect the Public
March 17, 2020	In-person hearings suspended province-wide. All matters to be heard after March 17 adjourned. Some matters moved to virtual hearings. Urgent matters are still heard, including proceedings related to COVID-19, urgent family and child protection matters, and urgent civil matters. Each region is given discretion over what matters would proceed virtually and how urgent matters would be handled. In Toronto, the following criminal matters continue to be heard: • Pleas • JPTs • Bail	March 15, 2020 Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings April 22, 2020, Notice to Profession – Toronto
April 20, 2020	Suspension of all jury selections and jury trials until September 2020, at the earliest.	Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials
July 6, 2020	Phased re-opening of in-person proceedings with a limited number of courtrooms (56 courtrooms were open initially across the province). Except as directed otherwise, matters originally adjourned to July 6 were adjourned to September 15. Jury selection re-commencing on September 15.	June 25, 2020 Notice to the Profession, Litigants, Accused, Media and Members of the Public
July 21, 2020	Ontario enacts Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020 c. 17. The regulations under this Act provided for different levels of restrictions to be applied to different Public Health Units depending on their public health risk. This included an initial multi-staged framework, and an eventual colour-coded framework for each region.	Reopening Ontario (A Flexible Response to COVID-19 Act, 2020, S.O. 2020 c. 17.
October 9, 2020	Jury selection suspended for 28 days in Toronto, Brampton, and Ottawa.	October 9, 2020 Notice to the Profession and Public Regarding In-Person Operations in Toronto, Brampton and Ottawa
December 14, 2020	New jury selection suspended until at least January 29, 2021, in all areas of the province except for Green Zones. In Toronto and Peel, new non-jury matters proceeding in person were limited to 10 people in each courtroom.	December 14, 2020 Notice to the Profession and Public Regarding Court Proceedings
January 12, 2021	Ontario declares second state of emergency. Jury trials are suspended the next day until at least May 3, 2021.	Notice to the Profession and Public Regarding Court Proceedings
March 17, 2021	Jury selection and new jury trials to resume, at the earliest, on June 7, 2021 in the Central West, Central East, Central South, and East regions, and on July 5, 2021, in the Toronto, Northwest, Northeast, and Southwest regions.	Notice to the Profession and Public Regarding Court Proceedings
April 8, 2021	In person matters not to be held until May 6, 2021, with the exception of the most serious child protection matters, urgent family matters and critical criminal matters.	Notice to the Profession and Public Regarding Court Proceedings
May 12, 2021	Chief Justice Morawetz issues notice to the profession advising that jury trials may resume in July, August, or September, and counsel should check locally.	Notice to the Profession and Public Regarding Court Proceedings
June 18, 2021	Expansion of in-person hearings and resumption of jury selection in July, August or September at the discretion of Regional Senior Justices and based on public health developments.	Notice to the Profession and Public Regarding Court Proceedings
December 17, 2021	No new jury selections until February 7, 2022.	Notice to the Profession and Public Regarding Court Proceedings
January 19, 2022	Moratorium on new jury selections extended until February 28, 2022 in all regions.	Notice to the Profession and Public Regarding Court Proceedings

1We attach as an appendix a list of the most significant restrictions, including those most affecting the Superior Court. We have taken judicial notice of the relevant public notices under s. 17 and s. 22 of the Canada Evidence Act R.S. c E-10.

2This appendix lists the most significant COVID-19 pandemic restrictions, including those most affecting the Ontario Superior Court of Justice, taking judicial notice as permitted by s. 17 and s. 22 of the Canada Evidence Act R.S. c E-10.