WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
( b ) on application made by the complainant, 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.
Ontario Court of Justice
DATE: 2023 09 08 COURT FILE No.: Toronto 21-Y5024
BETWEEN:
HIS MAJESTY THE KING
— AND —
C.L. (A Young Person)
Before: Justice Peter N. Fraser
Heard on: June 19, 2023 Reasons for Judgment released on: September 8, 2023
Counsel: E. Brosh................................................................................................ counsel for the Crown C. Goldsmith.......................................................................... counsel for the accused C.L.
1On February 29, 2021, C.L., a young person under the Youth Criminal Justice Act was charged with sexual assault against another young person named I.P. Under the Act , their identities cannot be published. On March 23, 2023, C.L. appeared at the courthouse at 10 Armoury Street in Toronto to stand trial. His trial was delayed, however, as four of the twelve courtrooms scheduled to hear criminal matters that day had to be closed on account of staff shortages. Unfortunately, this scenario is not uncommon in the Toronto Region. The Ontario Court of Justice has been plagued by a shortage of courtroom staff for many months and court closures have become an almost daily occurrence in Toronto.
2The trial was adjourned, with an expected completion date of July 6, 2023. C.L. brought an application to stay the proceedings on account of a breach of his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. The determination of that claim turns on the single question of whether delay caused by staff shortages in the courthouse is attributable to the Crown or constitutes an “exceptional circumstance” that is exempt from the calculation of overall delay.
3On June 28, 2023, I ruled that C.L.’s 11(b) rights were violated and entered a stay of proceedings, with reasons to follow. These are the reasons.
Legal Framework
4According to s. 11(b) of the Charter , any person charged with an offence has the right to be tried within a reasonable time. The Supreme Court of Canada has long emphasized the importance of this right, stating in R. v. Jordan, 2016 SCC 27, at para. 19:
[T]he right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim: ‘Justice delayed is justice denied.’ An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
5The Supreme Court has directed that trials in the provincial courts should be held within 18 months: R. v. Jordan, 2016 SCC 27, supra , at para. 46. This ceiling applies equally to young persons tried under the Youth Criminal Justice Act: R. v. K.J.M., 2019 SCC 55 at para. 4. In R. v. Jordan, 2016 SCC 27, supra , at paras. 46-48, the framework for assessing a claim under s.11(b) of the Charter was summarized in the following terms:
46 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).
47 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.
48 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.
6In R. v. Coulter, 2016 ONCA 704 at paras 34-41, the Court of Appeal for Ontario endorsed a methodology whereby defence delay and waivers are first deducted from the total delay. If the net delay exceeds the presumptive ceiling, the burden shifts to the Crown to demonstrate exceptional circumstances. In the present case, the net delay (after deducting defence delay and waivers) is just over two years. This is well above the presumptive ceiling. As a result, the analysis turns exclusively on whether the Crown can establish exceptional circumstances which explain the delay.
7To qualify as an exceptional circumstance, the Crown must show the delay was “reasonably unforeseen or reasonably unavoidable” and Crown counsel could not reasonably remedy the delays emanating from the circumstances: R. v. Jordan, 2016 SCC 27, supra , at para. 69; R. v. Perreault, 2020 ONCA 580 at para. 4. It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable, available steps to avoid and address the problem before the delay exceeded the ceiling . The Supreme Court has explained that “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases”: R. v. Jordan, 2016 SCC 27, supra , para. 71. In this case, the Crown acknowledges this is not a complex case, but argues the staff shortages are a discrete event that constitutes an exceptional circumstance justifying the delay.
Application to the Present Case
8C.L. was charged on February 9, 2021. The trial was expected to conclude on July 6, 2023. The total period of time taken to bring this matter to trial was 874 days, or about 29 months. There were no waivers. I would characterize 125 days as defence delay, leaving 749 days of net delay, which is 24 months and 19 days. That is well above the 18-month presumptive ceiling for constitutionally tolerable delay. As a result, the burden shifts to the Crown to demonstrate exceptional circumstances.
9The Crown argues that 92 days should be deducted on account of the complainant’s illness, which delayed the matter from December 5, 2022 to March 7, 2023. The defence concedes this point and I agree. Illness on the part of a witness or other justice participant is a classic example of an exceptional circumstance that is not attributable to the Crown: R. v. Jordan, 2016 SCC 27, supra , at para. 81.
10The Crown submits that a further 104 days should be deducted on account of staff shortages, which delayed this matter from March 24, 2023 to July 6, 2023. It is this question which determines the application.
11This trial was scheduled for March 23 & 24, 2023 in courtroom 602 at the newly constructed courthouse at 10 Armoury Street in Toronto.
12On March 23, 2023, 4 of the 12 courtrooms scheduled to hear criminal matters were closed on account of staff shortages. While my courtroom remained open (602), a large number of matters from the closed courts were placed before me, in addition to C.L.’s trial. Most of the morning was spent dealing with those other cases, such that only 15 minutes of court time remained for this trial before the lunch break. After the lunch break, an in-custody youth matter had to be addressed, leaving about 1 ½ hours of court time for the trial in the afternoon.
13On March 24, 2023, staff shortages caused the closure of 5 of 12 courtrooms in the building. This did not impact the proceedings before me; however, about 1 hour of court time was spent completing the in-custody youth matter which had begun the day before. This trial could not be completed in the allotted time and the matter was adjourned to the earliest available dates of July 5 & 6, 2023.
14What happened on the trial dates in March cannot be divorced from the broader context in which court closures have been occurring with discouraging regularity. It is well-established that judges may draw on their knowledge of local conditions in evaluating a section 11(b) Charter claim: R. v. Jordan, 2016 SCC 27, supra , at para. 89. This principle has been applied recently in connection with delays occasioned by the COVID-19 pandemic: R. v. L.L., 2023 ONCA 52 at para. 21; R. v. Jaques-Taylor, 2023 ONCJ 243 at paras. 37-48; R. v. Desjardin, 2023 ONCJ 244 at para. 233.
15Accordingly, I am prepared to take judicial notice of the state of affairs in my jurisdiction. For more than six months leading up to the hearing of this application, staff shortages have wreaked havoc on the orderly conduct of business in the Ontario Court of Justice in Toronto. Hundreds of courtrooms have been closed and countless trials affected. This problem has been going on for so long that a procedure has developed around it. The Crown Attorneys rank their trials by order of priority and submit the list to the trial co-ordinators. The trial co-ordinators confer with the local administrative judges each morning and a decision is made as to how many courts can be staffed with the available workforce and how many need to close. This information is communicated to the judges scheduled to preside each morning by way of an email.
16Judges are often forced to share the available courtrooms in order to address urgent matters we are seized of. Crown Attorneys, defence counsel, complainants, witnesses, police officers and accused persons wait to find out if their matters can proceed. The litigants who are denied a court are traversed to one of the functioning courtrooms for their matters to be addressed. This is necessary to preserve jurisdiction over the accused and the charge. Sometimes, courts that are otherwise operational are overrun by the influx of additional dockets, which in turn causes delay for the matters set to proceed there. This is what happened on the first day of C.L.’s trial. Throughout this upheaval, trials are adjourned and serious criminal matters which should be decided on their merits are delayed.
17While there have been days when no courtrooms close, the kind of disruption described above has occurred on a large majority of the court days within the relevant timeframe. The Crown filed an affidavit detailing the number of courts closed between December 16, 2022 and March 30, 2023. The affidavit reveals that 125 courtrooms were closed on account of staff shortages during that time period. [1] I am satisfied with the accuracy of this document, as it accords with the emails I have received each morning advising of courtroom closures. However, this number fails to reflect the true scope of the problem. Those 125 closed courtrooms only reflect cases originating out of the Toronto West Courthouse at 2201 Finch Avenue West – one of six courthouses hearing criminal cases in the Toronto Region at that time. And they only account for a period of 3 ½ months.
18I have reviewed the emails sent out each morning advising of courtroom closures from March 31, 2023 to July 6, 2023, the date this trial was scheduled to conclude. A total of 343 courtrooms were closed due to staff shortages at the new courthouse at 10 Armoury Street during this time period. [2] This material was not filed by either of the parties; however, both counsel have agreed that I may properly draw upon my knowledge of local conditions concerning delay. I raised this point with Crown counsel during submissions and noted the content of several of the emails on the record. There was no dispute about my reliance on this information. I would observe that the Court of Appeal has seen fit to take judicial notice of public announcements by the Court regarding closures associated with the Covid-19 pandemic: R. v. Agpoon, 2023 ONCA 449 at paras. 26-27. I do the same here with respect to the notifications about daily court closures.
19While these additional court closures occurred after C.L.’s trial was adjourned, in my view they reveal the issue of staff shortages to be an entrenched and region-wide problem. In total, I am aware of 468 courtrooms that were closed in the Toronto Region on account of staff shortages between December 16, 2022 and July 6, 2023. The actual number is likely much higher. These figures only account for court closures at the Toronto West Courthouse and the newly built Ontario Court of Justice – Toronto at 10 Armoury Street, into which criminal court operations from six locations across the city were transferred, one after the other in stages, throughout the spring of 2023.
20On March 6, 2023, operations at the Toronto West Courthouse at 2201 Finch Avenue West (Etobicoke) moved to 10 Armoury Street (bail matters remained behind). On March 13, 2023, youth matters from the 311 Jarvis Street Courthouse were transferred to 10 Armoury. On March 27, 2023, the College Park Courthouse at 444 Yonge Street moved its operations to the new courthouse. On April 14, 2023, the Toronto North Courthouse at 1000 Finch Avenue West (North York), moved its operations to the new courthouse. On May 5, 2023, the Toronto East Courthouse at 1911 Eglinton Avenue East (Scarborough) moved its operations to the new courthouse. And on May 26, 2023, the Old City Hall Courthouse at 60 Queen Street West moved to the new building. Bail matters from all of these locations were moved to 2201 Finch Avenue West, which was re-named the Toronto Regional Bail Centre.
21The parties filed no evidence of court closures at the other Toronto Region courthouses prior to amalgamation. As I did not sit in those locations, I have no specific knowledge of their staffing levels. But as matters from the other courthouses were transferred to 10 Armoury, they became part of my jurisdiction and the daily emails I received concerning staff shortages reflected conditions in those courtrooms too. The number of closures increased in lock step with the additional operations from the other locations. The figures reveal the problem of staff shortages extended far beyond matters originating at the Toronto West Courthouse.
22I am unable to calculate the number of courtroom closures as a proportion of the total. The number of courts scheduled to operate each day is not readily available to me. And that number increased in stages as operations were transferred into 10 Armoury Street from the other courthouses. That being said, the number of court closures is clearly staggering and has caused significant disruption to criminal matters in the Ontario Court of Justice. On several days, the number of closures were well into the double-digits. As an example, on June 12, 2023, no fewer than 18 courtrooms had to close. On July 5 & 6, 2023, the dates this trial was scheduled to conclude, 12 and 13 courtrooms were closed respectively.
23The cause of all this has not been explained. The Crown bears the burden of demonstrating that a delay was reasonably unforeseen or unavoidable such that it can be treated as an “exceptional circumstance.” I gave the Crown ample opportunity to provide evidence explaining why the state had failed to staff the courts to the extent seen here. The Crown declined. As a result, no justification has been provided for the disruptions of the past several months.
24The affidavit filed by the Crown is supported by email messages from Supervisors of Court Operations within the Court Services Division of the Ministry of the Attorney General. Court Services Division (CSD) is the part of the provincial government responsible for staffing the courts. In the emails, the stated reason for courtroom closures in each case is “sick calls.” The bare assertions contained in these emails are not capable of discharging the Crown’s evidentiary burden of establishing an exceptional circumstance.
25From an evidentiary perspective, the emails contain double hearsay. They are the out-of-court statements of the CSD Supervisors, reporting the out-of-court statements of the employees in question, none of which is under oath. This material is entitled to little weight. I am not prepared to accept that “sick calls” among court staff explain the closure of almost 500 courtrooms over a six month period, without some explanation or showing of proof. While COVID-19 lingers in our society, and other sicknesses naturally occur, there has been nothing close to that level of absenteeism among any other group of justice participants during the same time period. And in any case, that kind of non-attendance, however caused, requires an urgent solution. There is nothing in the evidence before me to suggest that meaningful action has been taken by the state to rectify this problem.
26Given how long this has been going on, I cannot see how the issue of staff shortages can be characterized as “reasonably unforeseen or reasonably unavoidable” as directed by the Supreme Court. At a certain point, court closures became the expectation for all concerned; so much so that a procedure developed around it. By the time this trial had to be adjourned, we were long past the point when a shortage of court staff could possibly have taken anyone by surprise.
27As the Supreme Court held in Jordan, at para. 112: “Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control.” Courtrooms require, and have always required, court clerks and reporters. This is fully within the control of the Crown. I wish to stress that I do not speak of the Crown Attorneys who prosecute cases, but of the state which is responsible for the provision of adequate facilities and staff: R. v. Askov, [1990] 2 S.C.R. 1199 at para. 57.
28No justification has been provided for the state of affairs in this jurisdiction. On its face, this record represents a startling failure by the state to fulfill its basic responsibility to staff the courts. I am not satisfied the Crown has established an exceptional circumstance capable of justifying the delay in this case.
29The Crown argues that a period of time should be deducted on account of the lingering implications of the COVID-19 pandemic. The Crown sought a credit of 8 days. In the event I found that staff shortages were an exceptional circumstance, the case would have been 8 days above the presumptive 18-month ceiling. While the Crown submitted that more time could potentially be attributed to the pandemic, it acknowledged that this consideration could not bring the remaining delay under the ceiling if I found the staff shortages were not an exceptional circumstance. As a result, I need not consider this point.
30In Jordan, the Supreme Court identified a culture of complacency within the justice system towards delay and encouraged all justice participants to work cooperatively to achieve just outcomes within a reasonable time. No amount of effort by all concerned, however, can achieve this goal in the absence of properly provisioned and functioning courtrooms.
31For the foregoing reasons, I find C.L.’s right to a trial within a reasonable time under s. 11(b) of the Charter has been breached. The proceedings against him are stayed.
Released: September 8, 2023 Signed: Justice Peter N. Fraser
Appendix A – Courtroom Closures: December 16, 2022 to March 30, 2023
December 16, 2022 – 2 courtrooms December 20, 2022 – 1 courtroom January 4, 2023 – 2 courtrooms January 5, 2023 – 2 courtrooms January 9, 2023 – 1 courtroom January 10, 2023 – 1 courtroom January 11, 2023 – 1 courtroom January 13, 2023 – 1 courtroom January 17, 2023 – 2 courtrooms January 19, 2023 – 2 courtrooms January 20, 2023 – 3 courtrooms January 23, 2023 – 4 courtrooms January 25, 2023 – 3 courtrooms January 26, 2023 – 3 courtrooms January 27, 2023 – 3 courtrooms January 30, 2023 – 1 courtroom January 31, 2023 – 1 courtroom February 1, 2023 – 1 courtroom February 3, 2023 – 3 courtrooms February 6, 2023 – 3 courtrooms February 7, 2023 – 2 courtrooms February 8, 2023 – 1 courtroom February 9, 2023 – 3 courtrooms February 10, 2023 – 2 courtrooms February 13, 2023 – 4 courtrooms February 14, 2023 – 3 courtrooms February 15, 2023 – 2 courtrooms February 16, 2023 – 3 courtrooms February 17, 2023 – 1 courtroom February 21, 2023 – 4 courtrooms February 22, 2023 – 3 courtrooms February 23, 2023 – 6 courtrooms February 24, 2023 – 3 courtrooms February 27, 2023 – 3 courtrooms February 28, 2023 – 2 courtrooms March 1, 2023 – 3 courtrooms March 2, 2023 – 2 courtrooms March 7, 2023 – 2 courtrooms March 8, 2023 – 4 courtrooms March 9, 2023 – 2 courtrooms March 13, 2023 – 1 courtroom March 14, 2023 – 2 courtrooms March 17, 2023 – 2 courtrooms March 20, 2023 – 4 courtrooms March 22, 2023 – 1 courtroom March 23, 2023 – 4 courtrooms March 24, 2023 – 5 courtrooms March 28, 2023 – 3 courtrooms March 29, 2023 – 3 courtrooms March 30, 2023 – 7 courtrooms
Appendix B – Courtroom Closures: March 31, 2023 to July 6, 2023
March 31, 2023 – 3 courtrooms April 3, 2023 – 6 courtrooms April 4, 2023 – 6 courtrooms April 5, 2023 – 6 courtrooms April 6, 2023 – 5 courtrooms April 11, 2023 – 4 courtrooms April 12, 2023 – 5 courtrooms April 13, 2023 – 3 courtrooms April 18, 2023 – 3 courtrooms April 19, 2023 – 5 courtrooms April 20, 2023 – 7 courtrooms April 21, 2023 – 8 courtrooms April 24, 2023 – 2 courtrooms April 25, 2023 – 3 courtrooms April 26, 2023 – 6 courtrooms April 27, 2023 – 6 courtrooms April 28, 2023 – 7 courtrooms May 2, 2023 – 2 courtrooms May 3, 2023 – 6 courtrooms May 4, 2023 – 4 courtrooms May 5, 2023 – 4 courtrooms May 8, 2023 – 5 courtrooms May 10, 2023 – 8 courtrooms May 15, 2023 – 1 courtroom May 16, 2023 – 1 courtroom May 17, 2023 – 6 courtrooms May 18, 2023 – 6 courtrooms May 19, 2023 – 5 courtrooms May 30, 2023 – 11 courtrooms May 31, 2023 – 6 courtrooms June 5, 2023 – 5 courtrooms June 6, 2023 – 6 courtrooms June 7, 2023 – 8 courtrooms July 10, 2023 – 4 courtrooms June 12, 2023 – 18 courtrooms June 13, 2023 – 13 courtrooms June 14, 2023 – 13 courtrooms June 15, 2023 – 12 courtrooms June 16, 2023 – 9 courtrooms June 19, 2023 – 14 courtrooms June 20, 2023 – 5 courtrooms June 22, 2023 – 8 courtrooms June 23, 2023 – 14 courtrooms June 26, 2023 – 14 courtrooms June 27, 2023 – 10 courtrooms June 29, 2023 – 8 courtrooms June 30, 2023 – 4 courtrooms July 4, 2023 – 3 courtrooms July 5, 2023 – 12 courtrooms July 6, 2023 – 13 courtrooms
1Drawing from the affidavit filed, I have set out of the number of courtroom closures by date in Appendix A to these reasons.
2I have set out the number of courtroom closures by date for this period of time based on the daily emails circulated in Appendix B to these reasons.