R. v. Cook, 2022 ONCJ 218

ONTARIO COURT OF JUSTICE DATE: 2022 05 09 COURT FILE No.: Toronto Region 19-45000332

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MATHEW COOK

Before: Justice Carol A. Brewer Heard on: April 26, 2022 Reasons for Judgment released on: May 9, 2022

Counsel: Aaron Harnett........................................................................................... counsel for the Crown Rohit Chhibber ........................................................... counsel for the defendant, Mathew Cook

C.A. Brewer J.:

Introduction

1An information charging Mathew Cook with impaired driving, driving with an illegal blood alcohol concentration and public mischief was sworn on January 25, 2019.

2On April 26, 2022, Mr. Cook applied for a stay of proceedings under section 24(1) of the Charter on the basis that his right to be tried within a reasonable time, as guaranteed by section 11(b), has been violated.

3In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice beyond which delay will be presumptively unreasonable. The period of delay from the time the charges were laid until the anticipated date for the completion of the trial on June 9, 2022, is 1231 days.

The Chronology of Events

4The following table sets out a chronology of the events in this case:

Period	Length	Summary of Events
January 25/19 – March 7/19	41 days	The information is sworn. March 1/19: Initial disclosure is provided to the defence.
March 7/19 – March 14/19	7 days	An agent advises the court that Calvin Barry’s firm is retained. The case is adjourned at the request of the defence to file a designation.
March 14/19 – April 11/19	28 days	No designation is filed. At the suggestion of Crown counsel and the court, a Crown pre-trial (CPT) is set for April 10/19. April 10/19: The CPT is conducted.
April 11/19 – May 2/19	21 days	Duty counsel appears for the defence and seeks a 3-week adjournment. A judicial pretrial (JPT) is to be set during that period.
May 2/19 – May 23/19	21 days	The JPT is set for May 21/19. May 21/19: The JPT proceeds before Justice Bacchus and provisional trial dates of April 1, 2 and 3/20 are selected.
May 23/19 – June 6/19	14 days	The defence seeks an adjournment for 2 weeks. Section 11(b) is waived.
June 6/19 – June 13/19	7 days	No one appears for the defence and duty counsel was not given any instructions. At the request of Crown counsel, the case is adjourned for 1 week.
June 13/19 – January 9/20	180 days	Trial dates are set for April 1, 2 and 3/20, with a confirmation date of January 9/20.
January 9/20 – March 9/20	60 days	The trial dates are confirmed. March 5/20: The defence files an application for severance.
March 9/20 – March 18/20	9 days	An articling student for defence advises the court that an erroneous severance application was filed by his firm and that a revised application will be filed later in the day. The case is adjourned to March 18/20 for the motion to be heard. March 16/20: The Ontario Court of Justice closes courts in response to the pandemic. All non-urgent cases involving out-of-custody defendants are presumptively adjourned for 10 weeks.
March 18/20 – October 15/20	211 days	The trial is adjourned because of the COVID-19 virus. May 27/20: The case is adjourned to August 5/20. July 27/20: A Backlog Recovery Initiative (BRI) JPT is held with Justice Bacchus. August 5/20: The case is adjourned to October 15/20. September 10/20: A trial scheduling conference is held. The severance application is set for January 21/21 and the trial is provisionally scheduled for February 24, 25 and 26/21.
October 15/20 – January 11/21	88 days	The dates for the severance motion and the trial are put on the record.
January 11/21 – January 21/21	10 days	During an appearance in triage court, the date for the severance motion is confirmed.
January 21/21 – January 29/21	8 days	No transcript was filed.
January 29/21 – February 10/21	12 days	No transcript was filed. The appearance is before me. The digital audio recording of the proceedings confirms that Mr. Cook did not appear. Defence counsel, Jeremy Naresh, asks for an adjournment.
February 10/21 – February 19/21	9 days	No transcript was filed. The appearance is before me. The digital audio recording of the proceedings confirms that Mr. Naresh seeks an adjournment of the motion to conduct a bail hearing in another case.
February 19/21 – March 11/21	20 days	Mr. Naresh requests an adjournment of the trial dates as a student in their firm’s office tested positive for COVID-19. Crown counsel does not oppose the adjournment of the trial, noting that the defence is waiving section 11(b). [1] Although the Crown and the court are ready to proceed with the severance application, Mr. Naresh also asks that it be adjourned. Crown counsel opposes adjourning the application, saying: “ In my submission, it would be in Mr. Cook’s best interest to get the soonest trial dates, given that this matter’s 25 months old. And I think that the fastest way to do that is if you heard the severance motion today. ” [2] Mr. Naresh expresses the belief that, by adjourning the case in its entirety, he could secure earlier trial dates as there would be more flexibility in scheduling with “a bigger pool of jurists”. [3] I grant the adjournment of the severance application, stating: “ Well I would have thought if I was seized, further evidence dates are given priority. But if you would prefer to adjourn both the motion and the trial, I am not going to stand in your way .” [4] March 9/21: Counsel meet with Trial Coordinator. New dates are set: May 5/21 for the motion and February 24, 25 and 28/22 for the trial. Section 11(b) is waived.
March 11/21 – May 5/21	55 days	A defence agent confirms the new motion and trial dates. April 22/21: In response to a further wave of the pandemic, the Ontario Court of Justice directs that all out-of-custody trials and preliminary inquiries scheduled between April 26 and May 7/21 (whether to proceed in person or virtually) be adjourned.
May 5/21 – May 21/21	16 days	The severance motion is adjourned.
May 21/21 – February 24/22	279 days	The severance application is heard and dismissed. In the reasons for this decision, I observe: “ Given the duplication of evidence that would arise if severance is granted, the efficient use of judicial resources weighs against granting severance. Severance would increase the time to try these matters and would negatively impact on having a trial within a reasonable time. In that regard, I note that both the defendant and society have an interest in having a trial within a reasonable time. And even if Mr. Cook is not inclined to proceed swiftly, certainly given the delays arising out of the pandemic, there is a societal interest in proceeding. ” [5] The case is adjourned to the first trial date.
February 24/22 – February 25/22	1 day	The trial begins.
February 25/22 – February 28/22	3 days	Another case, which had been scheduled to begin at 9:00 a.m., unexpectedly takes the bulk of the day. [6] This trial resumes at 3:23 p.m. Crown and defence counsel meet with the Trial Coordinator to discuss continuation dates. April 21 and 22/22 are offered. The Crown and court are available, but Mr. Naresh is committed to a Superior Court trial. Continuation dates of May 24 and June 9/22 are confirmed. Mr. Naresh says that he will bring a section 11(b) application, which is set for April 6/22. [7]
February 28/22 – April 6/22	37 days	The court opens at 9:30 a.m. and two brief matters are spoken to before the trial resumes at 10:21 a.m. [8] March 28/22: The defence files its section 11(b) application. April 5/22: The defence seeks an adjournment of the motion due to an on-going jury trial.
April 6/22 – April 26/22	20 days	The section 11(b) motion is adjourned at the defence’s request and rescheduled for April 26/22.
April 26/22 – June 9/22	44 days	The unreasonable delay application is argued, and judgment is set for May 9/22. The case is currently scheduled to be completed on June 9/22.

The Analytical Framework

5The primary purpose of section 11(b) is to protect the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges; (2) the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh. R. v. Morin, [1992] 1 S.C.R. 771 at ¶¶ 21-23; R. v. Jordan, supra at ¶ 20

6The secondary purpose of section 11(b) is to protect the interests of society. This includes seeing that citizens who are accused of crime are treated fairly. In addition, there is a public interest in having those who break the law dealt with quickly on the merits of their cases. R v Jordan, supra at ¶¶ 22-28 As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial. R. v. Morin, supra at ¶¶ 24-25

7A decision as to whether section 11(b) has been violated “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” R. v. Morin, supra at ¶ 26 that takes a “bird’s eye view” of the proceedings. R. v. Jordan, supra at ¶ 91

8In Jordan, the Supreme Court of Canada decried the “culture of delay and complacency” in the criminal courts. Ibid at ¶29 The new framework created by the court requires all participants in the criminal justice system to work cooperatively; to employ active measures to eliminate inefficient practices and move cases forward; and take reasonable steps to prevent and avoid delay. Ibid at ¶¶ 1-5, 27-28, 40-45, 70, 84-85, 90, 112-114.

9Pursuant to Jordan, in deciding an application under section 11(b) of the Charter, the trial judge must:

(a) Calculate the total delay from when the charge is laid to the anticipated end of the trial. (b) Subtract defence delay, which results in the “net delay”. (c) If the “net delay” exceeds the 18-month ceiling, then the Crown must establish the presence of exceptional circumstances which justify the delay, or a stay will follow. (d) Subtract the delay from the exceptional circumstance from the “net delay”, resulting in the “remaining delay”. If the “remaining delay” is above the presumptive ceiling, a stay will be entered. (e) If the “remaining delay” is below the presumptive ceiling, the onus is on the defence to demonstrate 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. R. v. Coulter, 2016 ONCA 704 at ¶¶ 34-41.

The Position of the Parties

10On behalf of the defendant, Mr. Chhibber concedes that some of the delay in this case is attributable to the defence and that some deduction should be made for the impact of the pandemic on these proceedings. Yet, on his calculations, the remaining delay is above the 18-month limit and a stay should be granted.

11By contrast, Crown counsel, Mr. Harnett attributes a greater portion of the delay than Mr. Chhibber does to defence conduct and to the exceptional circumstances flowing from the pandemic. Mr. Harnett’s calculation of the remaining delay places it below the presumptive limit. It is the Crown’s position that Mr. Chhibber has not met the onus of showing that the defence took meaningful steps to move the case forward or that the case took markedly longer than it should have.

Application of the Framework

A. Defence Delay

12Delay will be attributed to the defence where there has been an informed, clear and unequivocal waiver of section 11(b) or where delay is caused solely or directly by the conduct of the defence. R. v. Jordan, supra at ¶ 61 and ¶ 63; R. v. Cody, 2017 SCC 31 at ¶¶ 26-28 and ¶30 Actions by the defence that are legitimately taken to respond to the charges, such as preparation time and case-specific defence applications that are not frivolous, fall outside of defence delay. R. v. Jordan, supra at ¶ 65; R. v. Cody, ibid at ¶ 29 However, defence action, or inaction, may be found “illegitimate” if it is designed to delay, or it exhibits marked inefficiency or marked indifference towards delay. As the Supreme Court stressed in R. v. Cody, the distinction between legitimate and illegitimate defence conduct turns on the obligation Jordan placed on all justice participants to take proactive steps to prevent unnecessary delay. Supra at ¶¶ 30-35 Illegitimate conduct need not involve professional or ethical misconduct by defence counsel.

13With respect to scheduling, the Supreme Court of Canada has held that defence delay includes periods of time when the Crown and the court are ready to proceed, but the defence is not. R. v. Jordan, supra at ¶ 64; R. v. Cody, supra at ¶ 30 However, times during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. R. v. Jordan, ibid Evaluating the period of delay following a defence rejection of a date offered by the court requires a contextual consideration of whether the defence conduct is the “sole or direct” cause of the delay. In some cases, the circumstances may justify apportioning responsibility for the delay among the defence, the court and the Crown. R. v. Boulanger, 2022 SCC 2; R. v. Hanan, 2022 ONCA 229 at ¶¶ 48-58; R. v. Ameerullah, 2019 ONSC 4537 at ¶¶ 28-29

14In this case, it is common ground that section 11(b) was explicitly waived by the defence between May 23, 2019 and June 6, 2019, and between February 19, 2021 and February 24, 2022.

15Mr. Chhibber admits that there was delay caused by the defence between January 21, 2021 and February 19, 2021. I accept that concession. The onus is on the applicant to present evidence in support of his Charter motion and no transcripts were provided for that period. More importantly, the court record shows that on January 29, 2021 and February 10, 2021, defence counsel sought an adjournment, without notice, at the time the severance motion was scheduled to be heard and when both Crown counsel and the court were ready to proceed.

16Further, I have concluded that there were additional times when delay was caused solely or directly by the conduct of the defence:

• On March 7, 2019, an agent for the defence sought a week’s adjournment to file a designation. However, the designation was not provided on the subsequent appearance. The requested delay did nothing to move the case forward.
• On June 6, 2019, no one appeared for the defence. No instructions were given to duty counsel and no message was left for the Crown. Whether caused by inadvertence or human error, this defence inaction rendered the appearance meaningless.

17On February 25, 2022, two additional dates were obtained to complete the trial. Mr. Naresh was not available on the first dates offered because of another professional commitment. Defence counsel agreed to the next dates offered that were available to the Crown and the court. Mr. Harnett submits that the time from April 22, 2022 (when the Crown and court were available to finish the trial, but the defence was not) and June 9, 2022 (when the trial is currently scheduled to end) is defence delay. After careful consideration, I am not satisfied that this 48-day period is “solely” attributable to the defence. R. v. Safdar, 2021 ONCA 207 at ¶¶ 49-51 Instead, I view this delay as a “discrete, exceptional event” for reasons that I will explain when I deal with that portion of the Jordan framework.

18By my calculation, the defence delay is 398 days, leaving a net delay of 833 days (27 months and 11 days).

B. Exceptional Circumstances

19As the net delay exceeds the 18-month ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. Exceptional circumstances generally fall into two categories: (1) discrete events and (2) particularly complex cases. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. The Crown must show that there is a causal relationship between the discrete event and the delay. In addition, the Crown must demonstrate that it could not reasonably remedy or prevent the delay arising from those exceptional circumstances. As the court noted in Jordan, the Crown and the justice system are obliged to mitigate delay resulting from discrete exceptional circumstances and “within reason … should be capable of prioritizing cases that have faltered due to unforeseen events.” R. v. Jordan, supra at ¶ 75

The Pandemic as an Exceptional Circumstance

20Both counsel recognize that the pandemic has had an enormous impact on all cases before the courts and that it constitutes an exceptional circumstance. Mr. Chhibber takes the position that the delay between March 18, 2020 and October 15, 2020 should not count against the presumptive ceiling, as it is attributable to the challenges experienced by the justice system as a result of COVID-19. However, Mr. Chhibber maintains that the period from October 15, 2020 to January 21, 2021 should not be treated as an exceptional circumstance, as the courts resumed operation in August 2020, this case was already above the presumptive limit at that time, and the defence took all reasonable steps to mitigate the delay by accepting the first available dates offered for the trial.

21Mr. Harnett submits that entire period from the March 18, 2020 appearance to the new trial date of February 24, 2021 should be attributed to exceptional circumstances presented by the pandemic. Crown counsel points to a body of case law holding that where a trial has been adjourned due to COVID-19, the entire period of delay between the adjournment and the court’s first available new trial date should be deducted. R. v. Simmons, 2020 ONSC 7209 at ¶¶ 68-69; R. v. Gutierrez, 2020 ONSC 6810 at ¶¶ 13, 16, 19-20; R. v. Stack, 2020 ONCJ 544 at ¶¶ 43-45; R. v. G.R., 2020 ONCJ 578 at ¶¶ 46-49. See also R. v. Koustov, [2021] O.J. № 191; R. v. Ruchlewicz, 2021 ONCJ 538; R. v. Cao, 2022 ONCJ 179 at ¶¶ 64-74. Contra: see R. v. Ali, 2021 ONSC 1230 at ¶ 42; R. v. Brown, 2021 ONCJ 663 at ¶34; R. v. Singh, 2022 ONCJ 199 at ¶¶ 104-110. Mr. Harnett argues that the Crown did take the reasonable steps in its power to mitigate the delay arising from the pandemic by scheduling a BRI JPT on July 27, 2020, participating in a trial scheduling conference on September 10, 2020 and by consenting to the first available trial dates offered.

22It is worth noting that the severance application in this case was scheduled to proceed only two days after the Ontario Court of Justice suspended proceedings in response to the world-wide pandemic. This trial was set to begin just 16 days after the Chief Justice directed that all out-of-custody matters should be adjourned in ten-week increments. These adjournments continued until July 6, 2020. During that time, fundamental changes had to be made to the justice system to protect the health and safety of justice participants and the public. For example, court houses needed to be equipped with proper ventilations systems; courtrooms needed to be reconfigured and outfitted with protective equipment; technological changes had to be planned and implemented, along with training and assistance to all users; new scheduling and case management protocols had to be developed; and longstanding practices and procedures needed to be completely redesigned. These changes required the participation and approval of all justice participants and necessitated corresponding changes for police forces, detention and correctional facilities, Crown’s offices and the defence bar. See, for example, R. v. Simmons, supra at ¶70 and ¶72; R. v. Gutierrez, supra at ¶ 19; R. v. Koustov, supra at ¶¶ 30-35

23While trials were suspended, new matters continued to come to court. Consequently, trials adjourned because of COVID-19, trials that were already scheduled to proceed and new in-custody cases were all competing for limited court time. R. v. G.R., supra at ¶ 51 Scheduling these various matters became more complex and difficult and a backlog of cases ensued. R. v. Simmons, supra at ¶ 70 On July 2, 2020 the Chief Justice of the Ontario Court of Justice published a “Notice to the Profession and to the Public re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates”. The Notice set out a scheduling plan that included a priority order and timeline for setting trial and preliminary inquiry dates with the initial focus on in-custody cases. www.ontariocourts.ca/ocj/covid-19 at COVID-19 Notices and Information - Archives [29] On August 12, 2020, the Notice was updated. Out-of-custody hearings adjourned due to COVID-19, such as this case, could begin to be scheduled between August 17 and September 21, 2020. To schedule a trial, counsel were required participate in a special “COVID-19” JPT, and then to complete a trial scheduling form and submit it to the trial coordinator’s office. Ibid. [30]

24Here, the BRI JPT was held three weeks before this case was eligible to have a new trial date scheduled. On September 10, 2020, new trial dates were scheduled for five and a half months in the future. In my view, the delay between March 18, 2020 and January 21, 2021, a period of 309 days, is directly attributable to the exceptional circumstances caused by the pandemic and there were no additional steps that reasonably could have been taken to mitigate the delay.

25I note that the time frame between the judicial pretrial on May 21, 2019, when provisional trial dates were set for the first trial, and the scheduled start of the original trial on April 1, 2020, is ten months and 11 days. Such a scheduling delay was commonplace in a busy Toronto courthouse, like North York, in the years prior to the pandemic. The fact that this case was rescheduled within five and a half months, during the huge backlog arising from the pandemic, illustrates the efforts made by the court and the Crown to mitigate the delay.

The Need for Additional Trial Time as a Discrete Exceptional Event

26In Jordan, the Supreme Court stated that “if the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic trial estimates – then it is likely that the delay was unavoidable and may therefore amount to an exceptional circumstance.” R. v. Jordan, supra at ¶ 73

27In this case, there was no action or inaction by either Crown or defence counsel that brought about the need for additional trial time. While there was a second case placed on the court’s docket on February 25, 2022, efforts were made to limit any potential impact on Mr. Cook’s trial by opening the court an hour early. The fact that the other matter would occupy most of the court’s time that day was entirely unforeseen. Both counsel took immediate steps to address the need for additional trial time by meeting with the trial coordinator on February 25, 2022 before Mr. Cook’s trial resumed. The first dates offered were April 21 and 22, 2022, less than two months in the future. Not surprisingly, Mr. Naresh had another professional commitment on those days. It does not appear that the court and the Crown had availability again until May 24 and June 9, 2022, the days that were accepted by the defence. I believe that this situation cannot be properly categorized as defence delay. Instead, I am satisfied that this 48-day period falls within the parameters of a discrete, exceptional event. R. v. McNeill-Crawford, 2020 ONCA 504 at ¶¶ 27-34; R. v. Botsford et al, 2022 ONSC 2177 at ¶¶ 58-60

28After subtracting the 357 days attributable to exceptional circumstances from the net delay, the remaining delay is 476 days (or 15 months and 19 days).

C. The Remaining Delay

29Since the remaining delay is below the presumptive ceiling, the onus is on the defence to establish that the delay is unreasonable by showing it took meaningful, sustained steps to expedite the proceedings and that the case took markedly longer than it should have.

30In this case, I do not see meaningful and sustained efforts on the part of the defence to move this case forward. By way of illustration:

• both the severance application and the section 11(b) application were filed on short notice and not in accordance with the Rules of the Ontario Court of Justice;
• the outcome of the severance application was significant to the scheduling of this case, as the ruling would determine whether Mr. Cook needed one trial or two trials. On January 11, 2021, in triage court, Mr. Naresh confirmed that he was ready to proceed with the severance application on January 21, 2021. However, the motion did not go ahead on that date. The court and the Crown were ready to deal with application on January 29, February 10 and February 19, 2021. On each occasion, Mr. Naresh sought an adjournment. The severance motion was finally argued and dismissed on May 21, 2021;
• in seeking the adjournment on February 19, 2021, Mr. Naresh expressed concern over the fact that Mr. Cook’s case was 25 months old. Nonetheless, on March 9, 2021, the defence consented to trial dates of February 24, 25 and 28, 2022 and explicitly waived section 11(b); and
• the defence only put the Crown on notice that delay was becoming a problem on February 25, 2022. The court and Crown were ready to deal with the section 11(b) application on April 6, 2022. When defence counsel was unexpectedly unable to proceed on that date, the court and the Crown were able to adjust their schedules to have the motion heard on April 26/22.

31In light of this conclusion, I see no need to assess whether this case took markedly longer than it should have.

32Stays below the presumptive ceiling are to be rare and limited to clear cases. In the absence of meaningful and sustained steps to expedite the proceedings, this case does not fall within that category.

Conclusion

33For these reasons, the application for a stay of proceedings for a violation of Mr. Cook’s section 11(b) rights is dismissed.