WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
G.R.
Before: Justice K. Doorly
Heard on: November 19, 2020 (by Zoom)
Ruling on s. 11(b) released on: December 9, 2020
Counsel:
Kathleen Farrell — for the Respondent Crown
Ravi Sahota — for the Applicant G.R.
Decision
Introduction
1G.R. submits that his right to a timely trial pursuant to s. 11(b) of the Charter of Rights and Freedoms has been breached.
2There is no dispute between counsel as to the chronology of the matter or the applicable legal principles. The single issue that divides them is how the delay arising from the adjournment of G.R.'s trial because of COVID-19 should be treated.
3The Applicant does not suggest that the pandemic was anything other than an exceptional circumstance. He does submit, however, that once the courts began to reschedule trials, that "the Court and Crown chose to allocate resources to outstanding matters other than the Applicant's." Any delay from when the court began to re-schedule matters cannot be justified as an exceptional circumstance. He submits that 3 months should be deducted from the overall calculus resulting in a remaining delay of 18 months and 21 days, some 3 weeks over the presumptive 18-month limit.
4The Crown submits that it has made significant attempts to mitigate the delay arising from the pandemic and has been diligent in trying to have G.R.'s matter heard. The Crown submits instead that the time from the adjournment of the Applicant's trial to the conclusion of his second trial date (a total of 9 months) should be deducted, resulting in a remaining delay of 12 months and 12 days.
Procedural History
Key Dates
5G.R. is alleged to have committed a sexual assault on Feb. 24, 2019.
6He was arrested on March 2, 2019 and the information sworn on March 3, 2019.
7On July 15, 2019, after disclosure was completed and Crown and judicial pre-trials held, trial dates of April 6-9 of 2020 were set.
8At this point, the trial was anticipated to conclude within 13 months of the information being sworn and was well within the 18-month presumptive limit set in R. v. Jordan, 2016 SCC 27.
9And then in March of 2020, the pandemic arrived.
10All criminal trials and preliminary inquiries scheduled between March 20, 2020 and July 3, 2020 were suspended in the Ontario Court of Justice (OCJ). The OCJ adopted a reduced operational schedule – court houses remained open and continuing in-custody matters were allowed to proceed, subject to the Court's discretion.
11For G.R., that meant his out-of-custody April trial dates did not proceed.
12On June 23, 2020, Crown and defence conducted a "COVID-19" judicial pre-trial – mandated by the court, for any trial previously scheduled between March 16, 2020 and July 3, 2020. At this JPT, it was agreed that the trial would be re-scheduled as soon as the courts began to schedule again.
13On July 6, 2020, the OCJ began hearing and re-scheduling in-custody matters adjourned because of COVID-19.
14A timeline for scheduling matters was established. Out of custody trials adjourned on or after April 6, 2020 would be re-scheduled no later than August 24, 2020. (See OCJ website "COVID-19 Notices and Information" and "Notice to the Profession and Public" (appended)).
15On August 17, 2020, new dates for G.R.'s trial were set. Initially, Feb. 23-26 of 2021 was set. The Crown was not available on the earlier January dates that were offered. When the Applicant advised he would be bringing a s. 11(b) application, the matter was re-assigned to a different Crown and the dates of Jan. 4-7 of 2021 were set on August 24, 2020.
16The total delay from charge to the anticipated conclusion of the second trial will be 22 months and 5 days (March 2, 2019 to Jan. 7, 2021) minus 14 days of defence waiver, for a net delay of 21 months and 21 days.
Position of the Parties
17As noted, the Applicant submits that the net delay of 21 months and 21 days, minus 3 months arising from the pandemic, results in a remaining delay of 18 months and 21 days, which is still over the presumptive limit. A stay of proceedings should follow.
18Counsel notes, as per R. v. Jordan, 2016 SCC 27, that where the ceiling has been breached, the Crown may rebut the presumption of unreasonableness if there are exceptional circumstances – which the Applicant acknowledges in this case. However, the Crown must show that it took reasonable steps to avoid and remedy the delay.
19And it is the reasonableness of the response to COVID that counsel takes issue with – the time taken to remedy the delay. He submits that the total time that should be attributed to responding to the pandemic is 3 months and 1 day – the period between April 6 and July 6, 2020 – where the OCJ was operating on a limited basis and not conducting trials. Once the OCJ began conducting trials again on July 6th, submits counsel, the failure to resource the system and open more courts to accommodate G.R.'s trial was an institutional failing and a failure to reasonably remedy the delay.
20He submits that by choosing to prioritize some matters over others – i.e. in custody trials over out of custody trials – that the Crown and Court chose to allocate resources to outstanding matters other than the Applicant's trial. Had the system been better resourced, submits counsel, G.R. could have had an earlier trial.
21Alternatively, Mr. Sahota argues that even if I find the remaining delay falls below the presumptive ceiling, that the defence nevertheless took steps to expedite proceedings and that the case took longer than it reasonably should have. He notes, however, that a stay in such circumstances is only granted in clear cases.
22The Crown submits that the entire period between the adjournment of the trial on April 6, 2020 to the new trial anticipated to conclude on Jan. 7, 2021 should be characterized as an exceptional circumstance.
23The systemic response to the COVID-19 pandemic was reasonable. Upon re-opening, it was logical to prioritize in-custody cases first, as these were people experiencing the greatest restriction on their liberty and these were also the people who were unable to socially distance or isolate in the ways that other citizens were able to do.
24It was also logical to prioritize continuing trials, as they were older matters where the s. 11(b) rights of those accused were of concern, as well as society's interest in having matters tried in a timely way.
25As it relates specifically to G.R., Ms. Farrell notes that the January trial dates were the earliest dates available to any out-of-custody accused in Scarborough for a 4-day trial. The Crown further notes that the courts continue to operate at a significantly reduced capacity and that in the circumstances, reasonable measures to mitigate the delay were undertaken.
26Alternatively, the Crown submits that if I do not find the entire period between the first trial date in April and the conclusion of the second trial date in January to be "deductible" because of COVID, then I should find that the period from the April trial date to the date the Applicant's out-of-custody trial was set (August 17, 2020) as the appropriate time range, a 4 month and 11-day period.
27Under both scenarios, the remaining delay is below the presumptive ceiling (12 months and 21 days or alternatively, 17 months and 17 days respectively).
28The Crown submits that the time taken to trial is reasonable in response to the Applicant's alternative point.
Legal Framework
29As the Supreme Court of Canada held in Jordan, supra, at paras. 19 – 28, the s. 11(b) guarantee of a right to be tried within a reasonable time protects a number of interests.
30First, the accused's liberty, security and fair trial interests are all served by speedy trials – less time spent in custody or on restrictive bails, less anxiety and stress awaiting trial and fewer lost witnesses or degraded memories at trial.
31Also protected are the interests of victims of crime – delay can well aggravate their suffering. Delay can prevent them from moving forward in their personal and professional lives.
32And finally, the Court notes that timely trials are important in maintaining public confidence in the administration of justice – "Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community's sense of justice." (para. 25)
33In Jordan, supra, the SCC was highly critical of the "culture of complacency" that had developed within the criminal justice system. Accordingly, the Court set ceilings for how long matters should take to be tried – and if the matter took longer, it was presumptively unreasonable.
34As it relates to the Applicant, the relevant Jordan timeframes and formulas are as follows:
For a case in the provincial court, the trial should conclude within 18 months of the laying of the information.
To calculate whether the delay is reasonable, the court must
(a) Calculate the total delay from when the charge is laid to the anticipated end of the trial;
(b) Subtract defence delay, including waivers, which results in "net delay";
(c) If the "net delay" exceeds the 18-month ceiling, then the Crown must establish the presence of exceptional circumstances. Otherwise a stay will follow. Exceptional circumstances can be discrete events or arise from particularly complex cases.
(d) Subtract the delay from the exceptional circumstance from the "net delay", resulting in the "remaining delay".
(e) If the "remaining delay" is below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by showing it took steps to move the matter forward diligently and that the case took markedly longer than it should have.
(see Jordan, supra at paras. 36 – 48)
35The Court noted that exceptional circumstances lie outside the Crown's control and are reasonably unforeseen or unavoidable. Further, Crown counsel cannot reasonably remedy the delays once they arise. The Crown, however, must be prepared to mitigate the delay resulting from an exceptional circumstance – and so too must the justice system. Within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted. (See Jordan, supra at paras. 70 and 75)
Relevant Case Law on COVID-19 Delays
36Counsel have referred to a number of recent s. 11(b) decisions considering the impact of COVID.
37R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415 (Sask. QB), considered s. 11(b) in the context of a re-trial. Mr. Cathcart's June 20, 2020 re-trial date was adjourned to April 12, 2021 because of the pandemic. Of particular relevance to this application was the court's finding that the entire 10-month period from June 2020 to April 2021 was an exceptional circumstance – the position urged by the Crown in this Application. Unfortunately, there was no particular analysis by the Court as to why that period was appropriate.
38Likewise, in R. v. K.G.Y., 2020 ABPC 171, a further evidence date for a trial was adjourned because of the pandemic. The Court appears to agree with the Crown's position in this Application, finding that "trials were resumed for out-of-custody accused on July 2, 2020, but there was obviously a substantial backlog of matters. Setting a five-day trial into October seems reasonable under the circumstances." (para 41).
39In R. v. Harker, 2020 ABQB 603 at para. 12, Mr. Harker's sentencing hearing was adjourned, taking his matter to 32 months. The Court held:
There is nothing in the Court record which suggests that Crown or Defence bear any responsibility for the delay. Both worked expeditiously to request a date for the hearing once the Criminal Trial Triage Booking process was announced. All of the delay from the originally scheduled sentencing date of April 21, 2020 to the August 28, 2020 sentencing hearing arose from the Pandemic, the resulting reduction in Court services, and the development of procedures for rescheduling those matters delayed by the reduction in Court services, to ensure broad access to justice and prioritize certain cases, including those which might be considered "emergent or urgent".
40In R. v. Drummond et al, 2020 ONSC 5495, 2020 O.J. No. 3908 (S.C.J.), the applicants brought a s. 11(b) application alleging 34 months of delay. The Crown submitted that there were two exceptional events, one of which was Covid. Justice Cavanagh agreed that Covid was an unavoidable discrete event. In assessing the time that should be deducted because of Covid, he noted that the Applicants were scheduled to appear in provincial court on April 2nd, 2020. A direct indictment against them had been filed that day and their matter was adjourned to the SCJ for June 2, 2020 – earlier SCJ dates not being available because SCJ matters between March 17, 2020 and June 2, 2020 had been adjourned. These 2 months between April and June of 2020 were deducted by J. Cavanagh from the net delay.
41Additionally, a further 3 months was deducted because "the court had to reschedule all scheduled trials which could not proceed because of the pandemic and, as a result, when this matter was scheduled for trial on June 23, 2020, the first available trial date was April 6, 2021." (para. 79). The 3 months represented the period from June 2, 2020 to Sept. 2020, during which no jury trials were being scheduled – a period which the Crown could not have anticipated or reasonably mitigated.
42Accordingly, between the 5 months from the COVID event and 4 months from the other discrete event, the remaining delay was 25 months. After further analysis relating to whether the defence took meaningful steps, the s. 11(b) was dismissed.
43Justice Cavanagh did not deal directly with the issue of whether time should be deducted from the set date to the new trial and it is not clear to me whether that particular position was litigated. He deducted only the periods of the court shut-downs – the position taken by the Applicant in this application.
44In R. v. Kande, [2020] O.J. No. 4315, the Crown submitted that COVID took away the Crown's ability to expedite the 28-month-old case. Justice Rahman found that the Crown had done nothing until the pandemic arrived to expedite the case and concluded that the Crown had not met its onus to show it did something reasonable to mitigate the delay. The s. 11(b) application was allowed.
Analysis
45In summary, the Applicant submits that 3 months – from April 6 to July 6, 2020, where the OCJ was operating on a very limited basis – is the time attributable to the pandemic. The Crown submits that the full 9 months from the first trial to the second trial should be deducted.
46And so what portion of this delay caused by COVID could the Crown and justice system have reasonably mitigated? If the Crown and the justice system could reasonably have done more, then that period will not be subtracted from the net delay.
47In assessing whether the Crown and justice system have reasonably mitigated the delay caused by the impact of COVID, I take into account the following:
48First, in Jordan, supra, Justice Moldaver wrote that the Crown is obliged to mitigate the fallout from an exceptional event – as is the justice system:
This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. (para. 70).
49In this case, the Court responded by mandating a special "COVID-19" judicial pre-trial for any trial adjourned between March 16 and July 3, 2020.
50One of the purposes of judicial pre-trials is to assist in resolution discussions (which, if successful, reduces demand on trial time). Should the matter go to trial, the JPT allows for an accurate estimate of time.
51During the time where trials were suspended, new matters continued to come to court. Crime did not stop. With multiple streams of criminal matters newly competing for limited trial time – trials adjourned because of COVID-19 on top of trials already scheduled on top of new, in-custody trials – the Court had to be shrewd about how trial time would be allotted. The mandatory JPTs allowed all parties to talk candidly about existing cases that had been adjourned, explore resolutions and, where necessary, determine realistic or revised time estimates, in an effort to accommodate greater demand for trial time.
52In the Applicant's case, this mandatory JPT was held on June 23, 2020. The matter was adjourned to Aug. 24, 2020 on the understanding that it might resolve. Trial dates were ultimately set through a new electronic scheduling system, culminating in a "zoom" hearing with the trial coordinator.
53I find that there were meaningful efforts made to prioritize matters, to re-address resolutions, time estimates and consider alternatives to in-person hearings in an effort to get trials heard. There was no complacency – the system responded rationally, thoughtfully and creatively.
54Second, a system was put in place to advise the Applicant about the order in which trial dates would be set and on what dates that would happen. In a "Notice to the Profession and Public: Update regarding the Scheduling of Criminal Trials and Preliminary Inquiries" (appended), and specifically as it relates to the Applicant, the OCJ advised that as of Aug. 17, 2020, it would begin re-scheduling out-of-custody hearings that were adjourned between March 16 – April 3 because of COVID. Within that document is the framework that governed scheduling overall – beginning with the scheduling of in-custody continuations starting July 6, 2020 all the way to out-of-custody hearings. Additional priority was given to cases depending on when they were adjourned.
55A rational approach to re-scheduling trials was taken: prioritizing in-custody and continuing matters over out-of-custody matters makes sense and frankly, to have proceeded otherwise would have been an affront to the principles that s. 11(b) protects – the liberty, security and fair trial rights of accused people, the interests of victims of crime and public confidence in the administration of justice.
56Third, in terms of the new trial date, I was advised that the January 4-7, 2021 dates were the earliest out-of-custody dates being offered on August 24, 2020 for a 4-day trial. I would note, just for the sake of comparison, that G.R.'s original trial was set some 9 months from the date the parties were ready to set a trial date – in a case where the total delay would have been 13 months had the original trial proceeded. His next trial was set within 4 ½ months – half the time. This is certainly suggestive of an effort to mitigate delay caused by the COVID pandemic.
57And fourth, and as noted earlier, the Crown was originally unavailable for the January trial dates, being only available in February of 2021. Once advised of the looming s. 11(b) application, the case was assigned to a different Crown and the earlier Jan. 4th, 2021 was set.
58Accordingly, on the evidence before me, I find that reasonable measures to mitigate the delay have been taken by the Crown and justice system.
59With respect to how much time should be deducted, I agree with the Crown's position that it should be the time from the adjournment of G.R.'s first trial to the end of his second trial, for the following reasons.
60As of writing, Toronto is in lockdown. Restaurant and retail store operations are severely restricted, with delivery or curb-side pick-up being the norm. No social gatherings are allowed except with members of the same household. Gatherings of more than 10 people outdoors are prohibited. There are severe limits or outright prohibitions on visiting family members in assisted living homes. Public schools are operating on a combination of alternating days and in-person and zoom classes. And these are just some of the restrictions.
61And in terms of the impact on the Scarborough court? First, the "palais de justice" is not as grand as the French translation suggests. It is an old warehouse, with a Flea Market and Bingo Hall as neighbours. There are no cavernous halls or sweeping spaces that easily allow for large crowds to socially distance – its two halls are each about 15 feet wide and, pre-COVID, teemed with people throughout.
62Because courts are an essential service and because of the strict protocols that courts are following i.e. social distancing, screening all those who enter, and limiting the number of people allowed in the courthouse and within each courtroom, courts are allowed to operate. But we must operate in a way that is safe for all members of the public, including accused people, witnesses and court staff. And we must continue to accommodate as many criminal trials as we reasonably and safely can.
63And so, as a result of the pandemic, 1911 Eglinton Ave. in Scarborough – a court-house that once had 10 trial courts a day – is now reduced to 5 trial courts a day. Two of those courts operate remotely – a concept unheard of prior to COVID. I understand that as of Dec. 6, 2020, the number of trial courts has increased to 7 – these two additional courts also operating remotely. The system continues to recalibrate in light of the public health burden that it now shoulders on top of its already pressing responsibilities.
64G.R.'s submission that he would have had an earlier trial had the courts been better resourced, in my opinion, does not address the reality of the situation. At this point, it is not a resource issue that delayed his trial by 9 months – it is a public health crisis unlike any in our lifetime.
65And so it is for this reason – a continuing health crisis – that I conclude that the time to the new trial falls within the exceptional circumstance deduction. At this point, the system is still adjusting to a dynamic situation.
66However, the system has suffered from resource shortfalls in the past and it may be that if public health restrictions ease but court rooms cannot open because of inadequate staffing – with clerks, for example – then at some point on the continuum, the time to trial may be characterized as a resource issue that should have been anticipated and remedied.
67At this point though, I find that the Crown has discharged its onus for the reasons above. I find that the time taken from April 6, 2020 (date of first trial) to August 17, 2020 (date second trial set) was a time where the Crown and justice system were responding in a proactive and rational way to the pandemic. Four months and 11 days will be deducted. Further, the time from August 17th (date when second trial set) to January 7, 2021 (expected conclusion of the trial) will also be deducted because of the continuing nature of the crisis (4 months and 21 days). In total, 9 months will be deducted from the net delay, leaving a remaining delay of 12 months and 21 days, well below the presumptive ceiling.
68Alternatively, Mr. Sahota argues that even if I find the remaining delay falls below the presumptive ceiling, that the defence took steps to expedite proceedings and that the case took longer than it reasonably should have. A stay in such circumstances is only granted in clear cases.
69There is no denying that the defence was prepared and engaged in moving this matter forward. I certainly agree with Mr. Sahota on that point. However, the first trial, set for 4 days, was set to conclude within 13 months of the information being sworn – 5 months under the Jordan timeline. The second trial date was set in the midst of a pandemic and 4 days of trial were set just 4 ½ months after out-of-custody matters were being set for trial. As I noted earlier, the time from the set date to the second trial was faster and in these circumstances I am not satisfied that the case took longer than it reasonably should have.
70Accordingly, the s. 11(b) application is dismissed.
Released: December 9, 2020
Signed: "Justice K. Doorly"
Notice to the Profession and the Public
Update regarding Criminal Case Management Appearances (Published August 12, 2020)
On Monday August 17, the Court will begin scheduling out-of-custody cases adjourned due to COVID-19 in all court locations.
This Notice provides an update regarding the scheduling of trial and preliminary inquiry dates in the Ontario Court of Justice. It supplements and updates the Court's Notice to the Profession and the Public re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates, published July 2, 2020.
On July 6, 2020, the Court resumed setting criminal trial and preliminary inquiry dates, including rescheduling trials and preliminary inquiries that were adjourned due to the COVID-19 pandemic, using the procedure set out in its Notice to the Profession and the Public re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates.
Because of the large number of cases that were adjourned and need to be rescheduled due to COVID-19, the need to prioritize within the Court's caseload, and in order to have a fair and orderly scheduling process, the Court established a priority order and timeline for the setting of trial and preliminary inquiry dates, with hearings involving in-custody accused persons being given priority.
Scheduling of Out-of-Custody Trials and Preliminary Inquiries
The Court is ready to start scheduling trials and preliminary inquiries involving out-of-custody accused persons in all court locations. Priority will be given to trials and preliminary inquiries that were adjourned due to COVID-19, with priority based on the previously scheduled trial or continuation date.
The updated timeline for scheduling trials and preliminary inquiries is as follows:
| Category | Scheduling will begin no later than |
|---|---|
| 1. In-custody continuations | July 6, 2020 |
| 2. In-custody hearings adjourned due to COVID-19 | July 7, 2020 |
| • Hearings adjourned March 16 – April 9 | July 7, 2020 |
| • Hearings adjourned April 14 – May 8 | July 9, 2020 |
| • Hearings adjourned May 11 – June 5 | July 14, 2020 |
| • Hearings adjourned June 8 – July 3 | July 16, 2020 |
| 3. New in-custody hearings and in-custody hearings adjourned on or after July 6 | July 21, 2020 |
| 4. Out-of-custody continuations | August 5, 2020 |
| 5. Out-of-custody hearings adjourned due to COVID-19 | August 17, 2020 |
| • Hearings adjourned March 16 – April 3 | August 17, 2020 |
| • Hearings adjourned April 6 – April 24 | August 24, 2020 |
| • Hearings adjourned April 27 – May 15 | August 31, 2020 |
| • Hearings adjourned May 19 – June 5 | September 8, 2020 |
| • Hearings adjourned June 8 – July 3 | September 14, 2020 |
| • Hearings adjourned on or after July 6 | September 21, 2020 |
| 6. New out-of-custody hearings | September 28, 2020 |
Election re Mode of Trial
If an accused person has not made their election regarding mode of trial, the defence is encouraged to have the accused make their election by written submission in accordance with section 536.2 of the Criminal Code. A written Notice of Election prepared by the Ministry of the Attorney General's Court Services Division that may be completed and filed with the Court is available on the Ontario Court of Justice website. The Notice of Election may be signed electronically and may be filed with the Court by attaching it when the Trial / Preliminary Inquiry Scheduling Form is submitted.
If an accused person is entitled to an election but has not yet made their election, the accused person will be required to be present by remote appearance at their next court date to be put to their election, unless otherwise directed by a judicial official.
Revised Trial and Preliminary Inquiry Scheduling Form
In response to feedback received, the Court has revised the Trial / Preliminary Inquiry Scheduling Form that is used to schedule hearings. Going forward, counsel should complete and submit the revised version of the Form (dated August 12, 2020) to the Trial Coordinator's office.
Trial / Preliminary Inquiry Scheduling Forms that have already been completed and submitted using the previous version of the Form do not need to be resubmitted.
