Court File No.: 4862 999 00 7169827Z 00 4862 999 00 7169821Z 00 Date: September 28, 2021
Ontario Court of Justice (Toronto Region)
Between:
Her Majesty the Queen (Municipality of Toronto) Respondent
And
Grantley Soudine Applicant
Charter Application S.11(B) Ruling
Heard: September 13, 2021 Judgment: September 28, 2021 By: Justice of the Peace M. Fernandez
Counsel: Ms. E. Bobnar, Prosecutor on behalf of the Respondent Mr. P. Periti, Agent on behalf of the Applicant
[1] Mr. Grantley Soudine, the applicant, was charged with two Part I offences on October 18, 2019: Speeding, s.128, and Driver Fail to Use Seat Belt, s.106(2), pursuant to the Highway Traffic Act. The applicant was given a trial date for March 20, 2020 for both offences and was administratively adjourned due to the COVID-19 Pandemic. A Revised Notice of Trial was issued to the defendant on August 4, 2021 by way of Remote Hearing by Conference setting out the date of September 13, 2021 for trial.
[2] An application was made on September 13, 2021 by Paul Periti, Agent for the Applicant, for an Order staying proceedings against the defendant based on the state’s violation of his rights under s.11(b) of the Charter. The applicant submits the following in the application:
Constitutional Issues Raised:
I. That the time delay from the date the charge was laid to the trial date is excessive and unreasonable in a free and democratic society;
II. That the delay causes prejudice to the accused;
III. That the societal interests in this matter is minimal, and the interests of the accused are applicable in greater degree due to the nature of the offence;
Constitutional Principles Argued:
IV. That the delay in bringing this matter before the court is as a result of the act of the City of Toronto, which administrates traffic prosecution services on behalf of the Ontario Court of Justice, in causing the matter to be brought forth in an untimely and unreasonably delayed fashion;
V. That the defendant has suffered prima facie prejudice on the matter of substantial delay; and that the prejudice is inferred and actual from the length of delay;
VI. That the defendant is a ‘Person Charged’ as set out in the Charter of Rights and Freedoms;
VII. That the delay is systemic, and as such, weighs heavily against the Crown;
VIII. That the limitations of resources by the City of Toronto in particular, the failure to allocate sufficient resources to the Court to administrate the interests of justice and dispense with these matters in a timely and expeditious manner through trial, is the primary case of the delay;
IX. That there have been no waivers by the defendant of his rights under this section, specifically section 11(b) of the Charter of Rights and Freedoms.
[3] In R v Nguyen (September 30), 2020 ONCA 609, the Ontario Court of Appeal stated that the language in R v K.J.M., 2019 SCC 55, is categorical: the ceilings established in R v Jordan, 2016 SCC 27, 2016 1 S.C.R. 631, apply uniformly. Accordingly, while the POA is intended to provide a speedy and efficient process for dealing with regulatory offences, the 18-month presumptive ceiling for single-stage provincial court proceedings established in Jordan applies to proceedings under Part I. The applicant argued that the amount of time it took for both offences to trial is over the 18-month ceiling set out in Jordan and should be considered as presumptively unreasonable. The applicant submits that on the date the application was heard in court, on the trial date of September 13, 2021, 22 months and 26 days have elapsed since he was charged on October 18, 2019. Further, the applicant submits that he had neither waived delay nor is he solely responsible for delay at any portion of the proceedings.
[4] The respondent submits that the Net delay in this case falls under the 18-month presumptive Jordan ceiling, when subtracting discrete events that occurred during the Covid-19 Pandemic period. The lengthy adjournments were due to the courts being closed and the time the matter took to trial is to be considered as exceptional circumstances and should be subtracted from the Net delay.
The Notice of Application was Properly Served:
[5] Both parties agree that this application was properly served.
Calculating Delay under the “JORDAN” Framework:
[6] The framework in R. v. Jordan, at para. 46-48 is summarized as follows:
At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the Superior Court (or cases going to trial in the provincial court after a preliminary inquiry).
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable, and a stay will follow.
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. We expect stays beneath the ceiling to be rare and limited to clear cases.
[7] The first step in the Jordan analysis is to calculate the total time from the charge date to the anticipated end of trial. A defendant was “charged” when the offence notice is issued to him. In this case, Mr. Soudine’s Offence Notices were issued to him on October 18, 2019. The following chronology of the court appearances and event details are as follows:
| Appearance in Court Date | Event Details | Time from issuing of Offence Notices |
|---|---|---|
| 18 October 2019 | Offence Notices Issued | |
| 30 March 2020 | Notice of Trial | 5 m, 12 d |
| 13 September 2021 | Revised Notice of Trial | 17 m, 14 d |
| Total Time | 22 m, 26 d |
[8] The applicant submits that the case is over the 18-month ceiling. He submits that the date the application was filed with the court, September 13, 2021, bringing the case to 22 months and 26 days of elapsed time since the applicant was charged. The trial is not completed as no plea was entered prior to hearing this application, nor has the trial on its merits been conducted.
Any Delay attributed to the Crown:
[9] As the total delay exceeds the 18-month ceiling, the prosecution was put to the test to rebut the presumption of unreasonableness by establishing exceptional circumstances, whether discrete events or case complexity.
[10] The respondent submits that in this case as with many other cases in Ontario, the Covid-19 Pandemic affected the setting of trial dates and therefore caused the delay in Mr. Soudine having his trial within a reasonable time. The Pandemic caused ‘Stay at Home’ orders for all of Ontario that resulted in the closing of courts, which included essential administrative staff who are responsible for scheduling all court appearances, including trials, for defendants. The applicant further submits that it was not until October 2020 that staff were directed to commence scheduling court appearances.
Analyzing the Delay due to the COVID-19 Pandemic:
[11] Everyone is fully aware that the COVID-19 Pandemic has effected the entire world. The impact of the pandemic on the court system is still on-going and yet to be fully determined. The extraordinary efforts of all stakeholders who share the responsibility in minimizing both its impact on the court system while mitigating the spread of the virus in a frequent changing landscape [1]. To fully understand the impact of the pandemic on the public, I made the following finding of fact, which is the COVID-19 Chronology for Ontario:
i. On March 17, 2020 marked the first lockdown and the first state of emergency was declared by Premier Doug Ford at the beginning the first wave of the pandemic. ii. On July 24, 2020, the state of emergency was lifted. iii. In early September 2020, the province showed a significant increase in new cases, beginning the second wave of the pandemic. iv. From late November to mid-December 2020, the province began placing regions in rolling lockdowns. v. January 12, 2021: Premier Ford declared Ontario's second state of emergency, which was lifted February 10, 2021. vi. In mid-March 2021, the Ontario Hospital Association and Ontario's Chief Medical Officer of Health declared the province was experiencing a third wave of the virus. vii. On April 3, 2021, the government announced a second province wide shutdown. Premier Ford later issued a third state of emergency and stay-at-home order for the province beginning April 8, 2021. viii. On May 13, 2021, the stay-at-home order was extended in Toronto, at which point it expired on June 2, 2021. ix. Presently, at the time of this decision, September 28, 2021, the province is preparing for a fourth wave of the virus, which is now largely impacting unvaccinated or vulnerable individuals.
[12] A public notice with regards to Provincial Offences Act matters was posted on the Ontario Court of Justice website [2] on March 16, 2020 advising that the clerk of the court adjourn matters pursuant to s.49(5) of the Act [3]. The clerk of the court adjourned the matters administratively and delivered notice of the new court date or Notices of Trial to the parties. A similar process was followed in R v Scarcello, [2004] OJ No 1002 and R v Delvecchio, [2008] OJ No 4229 where court closures prevented the court from operating and matters could not be adjourned on the record. Further, pursuant to s.85 of the Provincial Offences Act [4], the time limits for proceedings in the Ontario Court of Justice prescribed under the Provincial Offences Act were extended to April 23, 2020.
[13] The notice to counsel/paralegals on the Ontario Court of Justice website was revised May 19, 2020, July 2, 2020 and then September 1, 2020. As the COVID-19 Chronology points out, on July 24, 2020 when the state of emergency was lifted in this province, there was the hopeful intention that the courts would reopen. However, the COVID-19 positive cases were on the rise and the Health authorities announced the second wave of the pandemic and from late November to mid-December 2020, the province began placing regions in rolling lockdowns. Toronto has always been and remains a hotspot for the virus. This cycle repeated itself with two other state of emergencies and we are currently into our fourth wave.
[14] On September 1, 2020 the revised public notice was posted on the Ontario Court of Justice website and specific to the Provincial Offence proceedings in section 4.1.1 regarding audio-conferencing remote hearings it reads as follows:
Until further notice, no in-person Provincial Offences Act proceedings will be conducted until at least Monday, October 19th, 2020. Beginning September 28, 2020, Provincial Offences Act matters may proceed remotely as described below in s. 4.1.1. Judicial pre-trials as described below in s. 4.3 and early resolution guilty pleas described below in s.4.4 may continue to be held remotely.
The Court is working closely with its justice partners, including the Ministry of the Attorney General and representatives of Provincial Offences courts, to determine how technology can be used to increase participants’ ability to access courthouse services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings. The Court is also working with justice partners to plan for the eventual resumption of in-person attendances in a way that protects the health and safety of all participants.
Under section 4.1.2 regarding Remote Hearings by Video Conference it stated that Provincial Offences Act proceedings were to begin by video-conferencing. This included trial and non-trial proceedings by video. However, these proceedings were to be scheduled by video-conferencing as soon as the court location had the technology available and this also included the readiness of the Ontario Court of Justice to support video proceedings.
[15] It is important to point out that remote court hearings involve taking a paper-driven environment and converting it into an electronic format to be presented through a sustained and secure video proceeding. This task is enormous when you calculate the resources needed to adequately train personnel, including prosecutors and judiciary to navigate through a technical forum. The challenge is further intensified where members of the public, who are our prime responsibility to serve, are exceedingly disadvantaged within this forum. All this was done within a pandemic. I share the sentiments Justice C. Faria said in R v Gharibi, 2021 ONCJ 63, about court operations exceptionally mitigating the impact of COVID-19 [5].
[16] Delays due to the COVID-19 Pandemic have been categorized by the courts to be a discrete event because it is reasonably unforeseeable and beyond the Crown’s control. R v Simmons, 2020 ONSC 7209, at para. 60; R v Loblaws, 2020 ABPC 250, at para. 66; R v Drummond, 2020 ONSC 5495, at paras. 76-80; R v Ali Ismail, 2020 BCPC 144, at paras. 135-142; R v Stack, 2020 ONCJ 544, at para. 7; R v Folster, [2020] M.J. No. 187, at para. 28; R v G.R., 2020 ONCJ 578, at para. 3; R v Harker, 2020 ABQB 603, at para. 20; R v KGY, 2020 ABPC 171, at para. 40; R v Cathcart, 2020 SKQB 18, at para. 18. In R v Simmons, Justice Nakatsuru provides the following with regards to COVID-19 as a discrete exceptional event:
First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended.
Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases. COVID-19 has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. R v Simmons 2020 ONSC 7209, cont’d
Third, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.
Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now the pandemic is getting worse. We are in the second wave. This discrete event continues.
Finally, in order to qualify as a discrete event, the Crown must show it could not have reasonably mitigated the delay. In this case, the Crown was proactive and so was the court.
[17] The central issue is how much time should be attributed to the COVID-19 discrete event. Turning to the matters before this court, they were originally scheduled for trial on March 30, 2020, five months after Mr. Soudine received the offence notices. As noted in paragraph 11, the COVID-19 Chronology for Ontario, the trial was scheduled to take place during the pandemic. However, fourteen days prior under the first lockdown, the matters were administratively adjourned, and proper notice was given to the defendant. On August 4, 2021 a Revised Notice of Trial was sent to the defendant for a trial date of September 13, 2021. This trial date is the first appearance for Mr. Soudine.
[18] The prosecutor in her submissions advised that staff were directed to start scheduling matters in October 2020 and it is clear in the notices that were posted publicly that these were matters involving pretrials and early resolution through audio-conferencing. The information was not provided and it is unclear at this point when the notice was given from the local courthouse to the Ontario Courts that they were ready to proceed with scheduling trials by way of video-conferencing that was compatible with the Ontario Courts. Further to consider is the unsurmountable amount of cases that needed to be scheduled commencing late September and October 2020, where scheduling staff were sending out notices to defendants for non-trial matters by way of audio-conferencing. All this occurred during a pandemic. I am of the view that the Crown did everything possible in the circumstance to manage and prioritize the backlog of cases resulting from the pandemic, see R v Stack (November 23), 2020 ONCJ 544, A.R. Mackay J.
[19] The latest notice to counsel/paralegals on the Ontario Court of Justice website posted on September 7, 2021 indicates that court continue to hear matters remotely as the Ontario Court of Justice continues to work with stakeholders to ensure all courts, including Provincial Offences courts, can return to operations in a safe manner. Justice North in R v Truong, 2020 ONCJ 613 said the following on this point:
A number of factors had to be taken into account when decisions were made regarding court operations, including access to justice, public health and court resources. These decisions were informed by the input of stakeholders in the criminal justice system.
[20] I am of the view that as COVID-19 is still on-going, as we are currently facing our fourth wave in the pandemic, particular notice and proper analysis should be given to each individual court, highlighting their capabilities to function within the pandemic, aligned with the technical and staffing resources needed to conduct hearings within a remote forum. Once the official public notice [6] was given to counsel and paralegals that Provincial Offence trials would commence by way of video-conferencing, the clear and most effective date to consider is when the local courthouse and Ontario Courts aligned to secure a reasonable date for trial. The analysis in this particular case follows that the date when Mr. Soudine’s matters were scheduled, August 4, 2021, the local courthouse and the Ontario Courts were functionally prepared to hear the trial by way of video-conferencing. It is important to note here that the trial was scheduled within 1 month and 4 days, giving strength to the Crown’s submission that it did everything possible in the circumstance to manage and prioritize the backlog of cases resulting from the on-going pandemic.
[21] Therefore, given the nature of the current impact of the COVID-19 pandemic on the courts, and the efforts made to mitigate that impact, I find that the entire period between March 30, 2020 (the first trial date) and August 4, 2021(the date when the trial was scheduled), which is a delay of 16 months and 5 days is to be an exceptional discrete event to be deducted from the Net Delay. Although the cases exceeded the 18-month presumptive ceiling, due to exceptional circumstances that took place during the COVID-19 Pandemic the delay in this matter going to trial is reasonable under all the circumstances.
[22] The last point to address is the Constitutional Issue that the applicant raised with regards to the accused being prejudiced because of the delay. Although this was raised, I am not to consider this within the Jordan framework. The absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. It is not open to the Crown nor the defence to make an argument of prejudice resulting from delay [7].
Complexity resulting in any Delay:
[23] Neither the Crown nor defence made any submissions that complexity is to be considered as an exceptional circumstance and therefore I do not have to consider the issue of complexity that results in any delay.
Calculating the Remaining Delay:
[24] When the 16 months and 5 days are deducted as COVID-19 Delay from 22 months and 26 days Net Delay the remaining delay is 7 months and 8 days. The remaining delay is well under the 18-month Jordan ceiling.
| Appearance in Court Date | Event Details | Time from issuing of Offence Notices |
|---|---|---|
| 18 October 2019 | Offence Notices Issued | |
| 30 March 2020 | Notice of Trial | 5 m, 12 d |
| 4 August 2021 | Revised Notice of Trial – Scheduled for Trial | - 16m, 5 d |
| 13 September 2021 | Revised Notice of Trial | 1 m, 9 d |
| Total Remaining | 7 m, 8 d |
Analysis of Delay Below the Presumptive Ceiling:
[25] An 18-month ceiling is not an aspirational target and delay that falls under the presumptive ceiling may be unreasonable if the defence can demonstrate that it took meaningful steps in sustaining an effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Such stays will be rare and limited to clear cases [8].
[26] In this matter the applicant had not raised any concern regarding delay, either at the setting of the first trial, 5 months and 12 days from the time Mr. Soudine was issued his notices (charge date) of October 18, 2019, or at the setting of the second trial date on August 4, 2021. There is no issue with regards to the applicant demonstrating that it took meaningful steps in sustaining an effort to expedite the proceedings. Further, I do not find that the case took markedly longer than it reasonably should have.
Order:
[27] After reviewing the material filed in the application, considering the law, the submissions of both Parties and the circumstances of this case, I find that Mr. Soudine’s s.11(b) right has not been breached.
[28] Accordingly, the Application is dismissed.
Issued at Toronto, this 28th day of September 2021.
Justice of the Peace M. Fernandez
Footnotes
[1] See R v Gharibi, 2021 ONCJ 63 at par 48
[2] COVID-19: Notice to Counsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice (Revised September 1, 2021) https://www.ontariocourts.ca/ocj/covid-19/notice-to-public-regarding-provincial-offences-act-matters.
[3] Section 49(5) of the Act provides that the clerk of the court may, on behalf of the court, adjourn any proceeding under this Act or any step in a proceeding under this Act, where no justice is able to attend in person, to a date chosen in accordance with the instructions of a justice.
[4] 85 (1) Subject to this section, the court may extend any time fixed by this Act, by the regulations made under this Act or the rules of court for doing any thing other than commencing or recommencing a proceeding, whether or not the time has expired. 2009, c. 33, Sched. 4, s. 1 (50).
[5] R v Gharibi, 2021 ONCJ 63 par. 55
[7] R v Jordan, at para. 81
[8] R v Jordan, at para. 56, 82 -83, 48