ONTARIO COURT OF JUSTICE DATE: 2023 02 15 COURT FILE No.: Windsor 20-1816
BETWEEN:
HIS MAJESTY THE KING Respondent
— AND —
SALYA JAVED, TIGRAN KADEVCHYAN, UZAIR SHARIF, and WASEEM ZAIBAK Applicants
Before: Justice C. Uwagboe
Heard on: January 16 and 17, 2023 Reasons for Judgment released on: February 15, 2023
Counsel: Zuzana (Sue) Szasz.............................................. Counsel for the Federal Crown, PPSC Robert M. DiPietro................................ Counsel for the Defendant Tigran Kadevchyan Daniel W. Scott.................................................. Counsel for the Defendant Uzeair Sharif Robert F. DiPietro........................................ Counsel for the Defendant Waseem Zaibek Shane W. Miles.................................................... Counsel for the Defendant Salya Javed
RULING ON APPLICATION PURSUANT TO S. 11(b) and 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS
1The Applicants apply for stay of proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms, [1] asserting that their right to be tried within a reasonable time, as enshrined in s. 11(b) of the Charter, has been infringed.
Background
2This case commenced with five (5) co-accused all charged in relation to warrants executed on June 30th 2020. All applicants were released and provided with a return date of November 2, 2020, just over four (4) months following their arrest.
3The co-accused on this application were charged in relation to 17 counts under the Controlled Drugs and Substances Act [2] and the Cannabis Act. [3]
(1) Uzair Sharif and Manwinder Singh jointly charged with Count 1: possession of a schedule I substance, namely cocaine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(2) Uzair Sharif and Manwinder Singh jointly charged with Count 2: possession of a schedule I substance, namely Isotonitazene, for the purpose of trafficking contrary to s. 5(2) of the CDSA (this count amended from oxycodone on July 5, 2021 );
(3) Uzair Sharif and Manwinder Singh jointly charged with Count 3: possession of a schedule I substance, namely Isotonitazene, for the purpose of trafficking contrary to s. 5(2) of the CDSA (this count amended from oxycodone on July 5, 2021 );
(4) Uzair Sharif and Manwinder Singh jointly charged with Count 4: possession of a schedule I substance, namely codeine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(5) Uzair Sharif and Manwinder Singh jointly charged with Count 5: possession of a schedule I substance, namely MDMA, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(6) Uzair Sharif and Manwinder Singh jointly charged with Count 6: possession of a schedule I substance, namely Lisdexamfetamine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(7) Uzair Sharif and Manwinder Singh jointly charged with Count 7: possession of cannabis for the purpose of distribution, contrary to s. 9(2) of the CA;
(8) Uzair Sharif and Manwinder Singh jointly charged with Count 8: possession of cannabis for the purpose of selling it contrary to s. 10(2) of the CA;
(9) Uzair Sharif and Salya Javed jointly charged with Count 9: possession of a schedule III substance, namely psilocybin, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(10) Uzair Sharif and Manwinder Singh jointly charged with Count 10: possession of a schedule I substance, namely MDMA (purple), for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(11) Uzair Sharif and Salya Javed jointly charged with Count 11: possession of a schedule I substance, namely MDMA (brown), for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(12) Uzair Sharif and Salya Javed jointly charged with Count 12: possession of a schedule I substance, namely methamphetamine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(13) Uzair Sharif charged with Count 13: possession of a schedule I substance, namely cocaine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(14) Uzair Sharif jointly charged with Count 14: possession of a schedule I substance, namely codeine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(15) Waseem Zaibak, Tigran Kadevchyan, and Uzair Sharif jointly charged with Count 15: possession of a schedule I substance, namely cocaine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;
(16) Waseem Zaibak, Tigran Kadevchyan, and Uzair Sharif jointly charged with Count 16: possession of cannabis for the purpose of distribution, contrary to s. 9(2) of the CA; and
(17) Waseem Zaibak, Tigran Kadevchyan, and Uzair Sharif jointly charged with Count 17: possession of cannabis for the purpose of selling it, contrary to s. 10(2) of the CA.
4Similar to the circumstances in R. v. Aoun, 2023 ONCJ 36, the delay caused by one of the co‑accused, Mr. Singh, is central to the dispute on this application.
5The parties generally agree that the time from arrest of the Applicants on June 30, 2020, to the conclusion of the trial on April 21, 2023 is the time period for this Court to assess. This time period equates to 33 months 2 days.
6The parties disagree on the date the Jordan [5] clock begins in relation to this matter, the application of defence delay, and whether COVID-19 is an exceptional circumstance warranting a reduction in time. Some of the dates that are relevant to this analysis are as follows;
(1) June 30, 2020 – Arrest of the Applicants
(2) September 22, 2020 – Information is sworn
(3) November 2, 2020 – First appearance
(4) January 18, 2022 – Respondent permits date setting without Mr. Singh
(5) January 27, 2022 – Dates were set for Charter argument and trial (a) February 23 and 24, 2023 – Charter argument (b) April 17 – 21, 2023 – Trial
(6) Feb 8, 2022 – Dates for Charter and trial confirmed on the record
(7) October 5, 2022 – Respondent review of the file in relation to delay seeking earlier dates. Trial Co-Ordination responds that there are no earlier dates available in 2022.
Position of the Parties
7The Applicants claim that the Respondent has failed to bring the Applicants to trial within a reasonable time. The Applicants point to significant disclosure delays, a failure on the part of the Respondent to narrow the focus of the prosecution at an earlier point in time, a failure on the part of the Respondent to manage this co-accused matter through the court process, and that the Respondent was generally complacent with respect to the individual 11(b) rights of each co-accused. The Applicants suggest that this matter is not complex, there were no waivers by the Applicants, and that there were no exceptional circumstances that impacted the delay in this case.
8The Respondent submits that this matter is not complex although multiple co‑accused is a factor. The Respondent claims that the Applicants proceeded as a “ collective ” and that the delay should be analyzed communally. The Respondent points to a failure on the part of the Applicants to take meaningful steps to set earlier dates and defence unavailability at date setting. The Respondent acknowledges that following an analysis of the delay in this matter there is net delay above the presumptive ceiling. The Respondent points to COVID-19 as a discrete event having had a tremendous impact on this matter proceeding expeditiously, warranting reduction below the presumptive ceiling.
9For the reasons that follow, I cannot agree with the Crown submission that exceptional circumstances justify a reduction of delay below the constitutionally acceptable threshold. On the evidentiary record before me, it is clear that the Respondent failed to provide disclosure in a timely fashion and was remiss in its responsibility to marshal this matter through the court in a timely fashion. The Respondent cannot shield its lack of diligence with the advent of the pandemic. Delayed disclosure and a failure to manage the Crown case led to the delay in this matter, not complexity, nor the impact of the pandemic on the court. As a result, I find that the Applicants right to be tried within a reasonable time has been breached.
Summary of the Litigation History
10Salya Javed, Tigran Kadevchyan, Uzair Sharif, and Waseem Zaibak remain charged on multiple CDSA and CA charges set out above. Manwinder Singh’s charges were ultimately stayed on June 21, 2022. The path to the resolution of Mr. Singh’s charges is material to the analysis of this application. It is noteworthy that a designation of counsel for Mr. Singh was not filed with the court for essentially the entirety of the life of his matters.
11Warrants were executed on June 30, 2020, and the Applicants were released following arrest the next day, July 1, 2020, by way of undertaking.
12Disclosure requests were made by the Applicants as well as Mr. Singh in July of 2020. Police were contacted by the Respondent’s office on or about July 29, 2020, regarding disclosure. For an unknown reason, only Mr. Esco received the charge summary in relation to this case as well as the management order for Mr. Singh’s vehicle on July 30, 2020. The Respondent submits that it may be the case that the office was unaware of the existence or representation of the Applicants, notwithstanding receiving their initial disclosure request on July 2, 2020.
13A follow up request for disclosure is made by Mr. Singh’s counsel, Mr. Esco, on July 31, 2020. It is not until August 24th, 2020, that the Respondent follows up with the police regarding the follow up request for disclosure. Presumably there is no response to this request.
14On September 22, 2020, the information was sworn.
15On September 23, 2020, the first wave of disclosure is published but not yet disclosed.
16On October 1, 2020, an inter-office email was sent in the Respondent’s office inquiring as to the status of disclosure, as the Respondent had still not received disclosure from the police. On October 5, 2020, the Respondent received a disclosure request from the Applicant, Salya Javed. The exhibit copy filed with the court of the disclosure request indicates “ don’t have it ” in red ink on the request.
17On October 20, 2020, Mr. Esco reaches out again for disclosure and is advised by the Respondent that disclosure has not been received from the police. On October 23, 2020, the Respondent corresponds with Mr. Esco that Ms. Szasz is the assigned Crown to the matter and that the initial 700 page disclosure is ready for pick up. None of the Applicants received notice of this development with disclosure at that time.
18On October 27, 2020, the Respondent screened the file and disclosure. On October 30, 2020, the disclosure is provided to Mr. Esco. The Applicants were not notified that the initial disclosure was ready for pick up. At this point, a Crown was assigned to the file. The submissions to this Court did not assist with how it came to pass that the Applicants would not be notified that the disclosure they requested was ready for pick up.
19On November 2, 2020, the matter was in court for the first appearance. Designations were filed for all of the co-accused except for Manwinder Singh. The matter was adjourned for disclosure to return on December 14, 2020. Apparently, nobody alerted the Court as to the status of disclosure. Mr. Esco did not appear and the Crown in court made no comment with respect to disclosure. A warrant to hold was issued for Mr. Singh to the next appearance.
20On December 14, 2020, the matter was back before the Court. The Court pointed out that there was no designation for Mr. Singh and confirmed designations for the Applicants. The Crown of the day, Mr. Herberholtz, advised the Court that Mr. Esco was acting for Mr. Singh as Mr. Esco was not present. The matter was adjourned to January 25, 2021. The Court stood down for Mr. Esco.
21On December 22, 2020, the Applicants received initial disclosure on this case, just within six (6) months of the date of the warrant execution and three (3) months from the swearing of the information.
22On January 15, 2021, additional material disclosure was disclosed to all parties including the certificates of analysis. Amendments were sought on the information by the Respondent.
23On January 25, 2021, the matter was before the Court. Ms. Szasz appeared for the Respondent and indicated that Mr. Esco represented Mr. Singh. Mr. DiPietro Sr. appeared for the Applicants. It was noted for the Court that the Applicants had just received additional disclosure and there was more disclosure to come. The matter was adjourned to March 8th to review that disclosure. Mr. Esco did not appear and Mr. Singh’s matter was stood down.
24On February 17, 2021, the Respondent sent correspondence to the co-accused parties that the Crown would like to set a date for a Judicial Pre-Trial. On the same date the Respondent released additional material disclosure including the ITO’s for 2 vehicles and 3 addresses.
25On March 8, 2021, the matter was back in court. It was confirmed on the record that the matter was proceeding by indictment. Mr. DiPietro advised the Court that a JPT was set for March 19, 2021 and requested that the matter return April 19, 2021 for instructions following the JPT. Mr. DiPietro attempted to have all parties return on that date as there were designations for all of the Applicants but the Court noted that there was still no designation for Mr. Singh and again Mr. Esco was not present for the appearance. The Court determined that the bench warrant for Mr. Singh would hold until the next date.
26On March 11, 2021, (8 days before the JPT), additional material disclosure was provided to all parties. This disclosure release included cell phone analysis on multiple cell phones connected to the Applicants as well as supplementary police reports.
27The JPT was held on March 19, 2021, before Justice Campbell. The Applicants submit that Mr. Esco was late and unsure of his representation of Mr. Singh. The Applicants submit that all parties agreed to a five (5) day trial with two (2) days set aside for Charter arguments. The Applicants further submit that election was made to the Ontario Court of Justice at the judicial pre-trial and it was suggested that a further JPT could be scheduled if necessary in relation to any further disclosure. The Respondent was not assisted by their notes of this attendance in their submissions to this Court.
28I accept the submission of the Applicants regarding the events of the JPT on March 19, 2021. The developments in the case that follow are consistent with the representations made about the questionable retention of Mr. Singh’s counsel and the Applicants’ intent to have a five (5) day trial with two (2) days set aside for Charter arguments in the Ontario Court of Justice.
29On March 19, 2021, (the same day as the JPT), the Respondent reached out to Trial Co-Ordination by email to secure a “two (2) day charter argument followed by a five (5) day trial. ” [6] Trial Co-Ordination responded to that email correspondence on the same date indicating that “ for 7 days total, I am into 2022 .” [7]
30I find as a fact that as of March 19, 2021, the Respondent was aware that the Applicants wished to pursue a trial in the Ontario Court of Justice for five (5) days with two (2) days of Charter arguments.
31On April 14, 2021, the Respondent sent correspondence to all parties advising of further material disclosure including warrants related to a tracking warrant for a phone and a warrant to search a phone.
32On April 19, 2021, Mr. DiPietro Sr. indicated to the Court that Mr. Esco was unsure at the JPT whether he was acting for Mr. Singh anymore. He also referenced additional disclosure as part of the reason the JPT was incomplete and that he would be setting a JPT continuation. The Applicants were all adjourned to June 7, 2021. Again, nobody appeared for Mr. Singh and the Crown stood the matter down for Mr. Esco. It is noteworthy that at this time, the Respondent was alerted to the issue regarding counsel for Mr. Singh on the record. Mr. Singh had never appeared to date, and there still was no designation of counsel for Mr. Singh.
33There was no record before the Court of Mr. Esco’s attendance following Mr. Singh’s matter being stood down on April 19, 2021. The endorsement on the information suggests Mr. Singh’s matter was also adjourned to June 7, 2021, to confirm counsel as Mr. Esco was removed as counsel. An agent appeared for Ayesha Abasi as counsel. A designation was not filed.
34On June 7, 2021, Ms. Gandy appeared as agent for Ayesha Abasi as counsel for Mr. Singh. Ms. Gandy advised the Court that Mr. Singh had not fully retained them. Mr. DiPietro Sr. confirmed on the record that the election for the Applicants was the Ontario Court of Justice, indicating to the Court that “we’re ready to set a trial date . ” [8] The Applicants’ efforts to proceed to setting a trial in the OCJ is again frustrated by Mr. Singh when Ms. Gandy states the following;
“We are not yet in a position to – to set trial dates. We’re still at the preliminary stages, although I appreciate that that’s where co-counsel is . ” [9]
Ms. Gandy goes on to advise the Court that they are not yet in receipt of disclosure. Ms. Gandy requests that the matter return on July 5th for an update.
35What follows from this point is a complete failure, on the Respondents part, to manage the process with a view to preserving the 11(b) rights of the Applicants before the Court.
36On July 5, 2021, Mr. DiPietro Sr. appears on behalf of the Applicants. The Applicants again confirm election to the OCJ. No election is made on the part of Mr. Singh. An adjournment is requested to August 9, 2021, in case management. Mr. Herberholtz, for the Respondent, requested an amendment to counts two (2) and three (3) on the information to reflect different drugs. This is the amendment to Isonitazene from oxycodone as originally charged. This change is the result of the disclosure of the certificates of analysis disclosed on January 14, 2021. This disclosure was followed up by correspondence from Ms. Szasz, on the part of the Respondent, to the parties, on the same date, indicating the following:
“Please be advised that the Crown on January 25, 2021, the next court appearance, will seek to amend count 2 and 3 on information 20-1816 as against Mr. Sharif and Mr. Singh. The substance analyzed as Isoitazene, a substance which is in a class of opioids with a potency higher than fentanyl.” [10]
This Court was not assisted by submissions as to why this change took almost six (6) months to make when this information was available two (2) months before the judicial pre-trial. The amendment was made unopposed on July 5, 2021. No agent appeared for Mr. Singh and his matters were stood down. His appearances were still governed by a bench warrant hold.
37On August 9, 2021, Mr. DiPietro Jr. appeared for the Applicants. Mr. DiPietro Jr. requested that the matter return September 13, 2021, to schedule dates as the Applicants were still waiting on an election from Mr. Singh. Ms. Grbevski appeared as agent for Mr. Esco and confirmed, on the record, before the Applicants, for the first time, that Mr. Esco was no longer counsel and that Mr. Singh retained other counsel. Ms. Grbevski states that Mr. Esco may have been removed a couple months ago, confirming that at the time of the removal, other counsel had spoken to it. The exchange between Ms. Grbevski and the Crown in court, Ms. Posliff, bears repeating as it sheds light on the management of this matter as it relates to Mr. Singh:
Ms. Grbevski: “It may have been a couple of months ago, actually. Mr. Esco [w]as removed from the record and other counsel had spoken to it. I don’t know who it is or – I can’t provide that information. I don’t recall. It may have been an out of town counsel.” [11]
Ms. Posliff: “I have an Abbas [sic] written here. I’m not sure if that – sounds like out of town counsel to me. I’m not familiar with that person.” [12]
The Applicants were adjourned as requested to September 13, 2021, as requested and the matters for Mr. Singh were stood down for counsel Abas to appear. There is no record before the Court as to what happened with Mr. Singh from there. I am not assisted by submissions on this point either. What is apparent is that the retention of counsel issue for Mr. Singh was still not resolved at this appearance, Mr. Singh was not present, and no designation of counsel had been filed. He was still appearing by way of 511 warrant and no actions by the Respondent compelled his appearance in court.
38On September 13, 2021, Mr. DiPietro Sr. appeared on the part of the Applicants. No counsel was present for Mr. Singh and his matter was stood down. The Applicants confirmed election to the OCJ and requested that the matter be adjourned to October 18, 2021, to set a trial date. The Applicants request was granted and Mr. Singh’s matter was again stood down.
39On September 15, 2021, the Applicants submit preliminary hearing setting forms to Trial Co-Ordination and copied Mr. Esco in an effort to move the matter forward. The Applicants received no response to this action as Mr. Singh did not submit a form.
40I accept the submission of counsel for the Applicants that preliminary hearing forms were submitted only because there was no election by Mr. Singh. It was, and always had been, the Applicants’ intention to proceed to trial in the Ontario Court of Justice. I also accept the submission of the Applicants that the local protocol requires forms from all co‑accused parties for Trial Co-Ordination to set dates. I accept these efforts, by the Applicants, as actions consistent with moving the case forward albeit not entirely within the control of the Applicants. I will discuss this further below.
41On October 18, 2021, Mr. DiPietro Sr. appeared for the Applicants and Ms. Szasz appeared for the Respondent. The Court indicated that the matter was there to set a trial date, that all parties elected to be tried in the OCJ and that it was there to confirm instructions from Mr. Singh. Mr. DiPietro again indicated that the Applicants are prepared to set trial dates. The Court inquired who acted for Mr. Singh. Ms. Szasz on the part of the Respondent indicated that “ he has Mr. Esco .” [13] The Court confirms that Mr. Singh is still appearing by way of a bench warrant. Ms. Szasz then says: “ I don’t know if Ms. – if counsel – I want to say counsel is Mr. Abasi [sic] .” [14] The Court confirms that nobody is present for Mr. Singh. The Applicants are adjourned to December 6, 2021, and Mr. Singh is again stood down. It is clear from this appearance that the Respondent had limited interaction with counsel for Mr. Singh. It is apparent, from the record, that the assigned Crown was unclear as to who was representing Mr. Singh. No action was taken to compel the attendance of Mr. Singh, who at this point, has never appeared by designation or personally and has had a bench warrant hold since his first appearance on November 2, 2020. This was the 10th appearance for this matter.
42On October 19, 2021, the Respondent prepared disclosure for Abasi Law on behalf of Mr. Singh. It is noteworthy that this disclosure is sent over four (4) months after the Abasi Law agent, Ms. Gandy, appeared on the record (June 7, 2021), indicating that they were counsel for Mr. Singh. Some communication occurred with Abasi Law and a Crown pretrial was scheduled for November 4, 2021, for Mr. Singh.
43The Respondent submits that there was a separate appearance for Mr. Singh on November 1, 2021. There is no record before this Court as to what transpired there. The Respondent submits the matter was adjourned to November 15, 2021 to meet with the Crown.
44On November 7, 2021, the Applicants again submit preliminary hearing setting forms to Trial Co-Ordination and received no response from Trial Co-Ordination, presumably because there still is no forms submitted by Mr. Singh. There still was no election by Mr. Singh. Again, I accept this effort, by the Applicants, as an action consistent with moving the case forward albeit not entirely within the control of the Applicants.
45The Respondent submits that there was an appearance for Manwinder Singh alone on November 15, 2021. The Respondent submits that again Mr. Singh appeared by way of 511 warrant and again the matter was adjourned to “ meet with the Crown .” There was no record of this appearance before this Court.
46The Respondent again submits that there was another appearance for Mr. Singh on November 29, 2021. Again the 511 warrant continued and again the matter was adjourned to confirm election for Mr. Singh. There was no record of this appearance before this Court.
47On December 6, 2021, Mr. Singh’s matter appeared with the Applicants for the 11th appearance on the Applicants’ matter. Mr. Scott appeared for the Applicants and Ms. Adeshea, a law student, appeared as agent for Abasi Law. The Court indicated that the matter was here to confirm trial dates but there was no Trial Co-Ordination certificate. The Court inquired of Ms. Adeshea whether there was a designation yet and Ms. Adeshea replied “ unfortunately, Your Worship, I don’t have anything noted on my note regarding that .” [15] The Court confirmed that there were designations on file for all of the Applicants and Mr. Scott requested that the matter return January 17, 2022, to confirm trial dates. The Court confirmed again that the Applicants have elected the Ontario Court of Justice. The Court made inquiry about what would be happening with Mr. Singh’s matter. The response from Ms. Adeshea is relevant and informative in respect of this analysis;
Ms. Adeshea: “..Your Worship, I can advise we have a CPT booked for December the 7th. We’re just requesting a remand for that to occur, but counsel has advised me that post – CPT we are – they have to set a JPT, and our election will be Superior Court of Justice, judge and jury, and we are looking in terms of having a preliminary hearing on the matter . ” [16]
The Crown, Ms. Rooke, pointed out at that appearance that the Applicants intended to have an OCJ trial and that this change by Mr. Singh would impact date setting, to which Mr. Scott agreed. The Court encouraged Ms. Adeshea to file a designation and she advised that one would be filed for the next appearance. The adjournment to December 13, 2021, was made with a warrant to hold until that date for the Crown pre‑trial to take place with Mr. Singh.
48It is clear from this appearance that essentially nothing had been done with Mr. Singh’s matter to move it forward. It appears from the record that there was not a Crown pre-trial of any utility prior to this appearance. There was still no designation, but now there was an election for the first time on the record from Mr. Singh for the Superior Court. Further, since June 7, 2021, when Abasi Law first appeared for Mr. Singh, there was no Judicial pre-trial to encourage movement on the part of Mr. Singh.
49The Respondent submitted that there was another appearance for Mr. Singh alone on December 13, 2021. The matter was adjourned again to meet with the Crown, this time adjourned to January 17, 2022. The 511 warrant was extended and the matter was marked for disposition or set date. There is no record of this appearance before the Court. It appears that the Crown pre-trial that was planned for December 7, 2021, either did not happen or was not useful to move the matter forward. In addition, the designation, that was to be filed by this appearance, was not filed. There is no evidence before this Court that anything was done by the Respondent about any of this.
50On December 15, 2021, the Applicants sent an email to Trial Co-Ordination following up on the forms that were submitted on November 7, 2021, and advising Trial Co-Ordination that Mr. Esco is not acting for Mr. Singh. Trial Co-Ordination replied that there was no update for the Applicants. At this point in time, there was no form submitted by Mr. Singh.
51On January 17, 2022, Mr DiPietro Sr. appeared for the Applicants and Ms. Szasz appeared for the Respondent. Nobody was present for Mr. Singh. The following exchange from that appearance is relevant to the analysis of time on this application:
Ms. Szasz: “This is my assigned file. Mr. DiPietro’s correct. It’s five days for trial and two days for Charter , and I know this matter has been going over, I mean, for a very – oh, my goodness. I’m just going back. It looks like since July to set that date.” [17]
Mr. DiPietro: “Yeah. I’ve been trying to set the date. It’s not our issue. The co‑accused, who’s not represented by us, hasn’t been participating so…” [18]
Ms. Szasz: “Sorry, Your Worship. But for the record, Mr. DiPietro’s correct. Mr. Manwinder Singh, who’s not represented by Mr. DiPietro’s office, had Mr. Esco originally for counsel and then dismissed Mr. Esco and has a new counsel, and that – I – I agree with Mr. DiPietro’s submissions that delay is essentially on Mr. Singh.” [19]
The Court: “Yeah but it – it affects the co-accused.” [20]
Ms. Szasz: “I appreciate that . ” [21]
Ms. Szasz goes on to inform the Court that discussions have been held with Mr. Singh’s counsel and suggests to the Court that Mr. Singh’s matter may be heading toward resolution. Ms. Szasz specifically notes the difficulty the Applicants are in, due to the election of Mr. Singh, the progression of his matter (both past and future) and their co‑accused status. What was offered to the Court, at that time, was that the matter return to Intensive Case Management Court (ICMC) on the 8th day of February, 2022.
52It is clear from the above appearance that Ms. Szasz was not updated as to the developments in court in relation to this matter for some time. Her shock as to the tremendous amount of time that had passed to set a date was appropriate as was her commentary on the cause of the delay to date. It is unfortunate that this revelation comes to the attention of the Respondent ten (10) months after the Judicial pre-trial where things started going sideways with the representation of Mr. Singh.
53On January 18, 2022, the Respondent’s office reaches out to Trial Co-Ordination regarding the setting of dates for trial. On the same date Trial Co-Ordination replies confirming receipt of the Applicant’s forms but no forms for Mr. Singh. Trial Co-Ordination further states “ once we have the other scheduling form it can go into date setting .” [22] Ms. Szasz then replies from her phone to the email and states: “ We are not including them. Can proceed without .” [23] Trial Co-Ordination replied: “ Thank you for clarifying Ms. Szasz ” [24] and they go on to request that the matter be scheduled for date setting.
54On the record before this Court, it is clear that it was the permission provided by the Respondent, to Trial Co-Ordination, to set dates without the co-accused that released the handcuffs from the Applicants and allowed them to set their dates for trial as they intended for some time.
55On January 27, 2022, the Applicants appeared at the scheduled date setting appearance and the dates for Charter arguments and trial were set with little difficulty. The first available dates for this matter commenced in January of 2023.
56On February 8, 2022, the trial dates were confirmed on the record for the Applicants in the Ontario Court of Justice. Ms. Abasi appeared on this occasion and advised the Court that there had been discussions with the Respondent and that the matters for Mr. Singh would resolve contingent on him providing an affidavit to the Respondent.
57The Respondent adds by submission to this Court that it took Mr. Singh nine (9) court appearances from January 31, 2022 – June 21, 2022, to provide the affidavit required for the resolution of his charges. On June 14, 2022, his counsel was ordered by Justice Bondy to attend in person or to send an informed and instructed agent to deal with Mr. Singh on June 21, 2022. Not surprisingly, after that intervention the matters were able to conclude for Mr. Singh on June 21, 2022 and his charges were stayed.
58Beginning on October 5, 2022 to November 24, 2022, the Respondent undertook efforts to bring the trial date forward due to delay concerns. No earlier dates were available. It is noteworthy that at the time of the commencement of those efforts, these matters were before the Court for just over twenty-four (24) months.
Legal Framework and Analysis
59The Applicant’s right to a trial within a reasonable time is guaranteed by s. 11(b) of the Charter . The Supreme Court modernized the framework for dealing with unreasonable delay in its seminal decision, R. v. Jordan, 2016 SCC 27 [25]. There, the Court established ceilings for delay – namely 18 months for provincial court matters, 30 months for federal court matters. Ultimately, if the total delay from the date the Information was sworn to the actual or anticipated end of the trial, minus any defence delay, exceeds the ceiling, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish that exceptional circumstances exist barring which the delay is unreasonable and the matter is stayed. Conversely, if the total delay, minus the defence delay or any period attributable to exceptional circumstances falls below the presumptive ceiling, the onus falls to the Applicant to establish that the delay is nevertheless unreasonable. Such cases, however, will rarely result in a stay of proceedings.
60The following analytical steps, summarized by our Court of Appeal in R. v. Coulter, 2016 ONCA 704 [26], are to be taken in applying the Jordan framework:
(1) calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument;
(2) subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
(3) compare the Net Delay to the presumptive ceiling;
(4) if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(5) subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
(6) if the Remaining Delay exceeds the presumptive ceiling, the Court must consider whether the case was particularly complex, such that the time the case has taken is justified and the delay is reasonable; and
(7) if the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show that the delay is unreasonable. [27]
61Delay that may be subtracted at the outset from the total delay consists of two components:
(1) Periods of clear and unequivocal waiver (implicit or explicit);
(2) Periods of defence caused delay – where the actions of the accused directly caused the delay or where the actions of the accused are shown to be deliberate and calculated tactics to used to delay the trial. [28]
The Commencement of Time
62The parties do not agree on the framework as it relates to the commencement of time for the Jordan Analysis. This disagreement impacts the date of the presumptive ceiling for analysis in this matter as well and, therefore, requires analysis by this Court.
63The Applicants submit that the Jordan clock should run from the date of “ the laying of the charge ,” which they equate to arrest, until the anticipated end of trial. The Applicants commend the Court of Appeal decision in R. v. Milani, 2014 ONCA 536 [29] to the Court in support for their assertion. The Applicants point to the potential for mischief in delay on the part of police in delaying the swearing of the information in significant or complicated cases. The Applicants face the stigma and stresses related to being charged from the time of their arrest throughout the proceeding. The Applicants also point to the wording in Jordan that the framework “ begins with calculating the total delay from the charge to the actual or anticipated end of trial. ” [30] The Applicants submit that the total delay in this case is thirty-three (33) months, twenty-one (21) days from the date of arrest June 30, 2020 to the anticipated end of trial on April 21, 2023. The Applicants point out that the information swearing was delayed until September 22, 2020 in this case.
64The Respondent submits that the preponderance of case law supports a finding that the Jordan clock commences with “ the laying of the charge ,” which they equate to the formal laying of a sworn information, not the date of arrest. The Respondent submits that the total delay in this case is thirty (30) months, twenty-nine (29) days . The Respondent points to the Supreme Court ruling in R. v. Kalanj, [1989] 1 S.C.R. 1594 [31] and others in support of their submission.
65I agree with the submission of the Respondent. The binding authority on this issue is the Supreme Court decision in R. v. Kalanj. McIntyre J. in writing for the majority stated:
“ With all deference to contrary opinions, I am of the view that it cannot be said that this Court in Carter adopted the minority view in Mills, on the question of the extension of the meaning of the word "charged" developed by Lamer J. In Carter, Lamer J., with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s. 11(b). To this extent, then, I am in agreement with the above quoted comments of Macfarlane J.A. in Mackintosh but, with respect, I do not agree with the majority in that case that "charged" has a flexible meaning varying with the circumstances of the case. I would therefore hold that a person is "charged with an offence" within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial…” [32]
66More recent binding authority from the Court of Appeal has supported this position on the commencement of time for 11(b) analysis. In R. v. Allison, 2022 ONCA 329, it was argued that the calculation of delay should be from the date of arrest rather than the date the Information was sworn; Favreau J.A. found otherwise at paras. 35-43:
35The appellant argues that the application judge should have used the date of his arrest rather than the date the information was sworn as the start date for calculating the total delay. This was a seven-week period.
36In making this argument, the appellant relies on a number of lower court decisions where courts have used this approach when there has been a significant delay between the date of the arrest and the date the information was sworn: R. v. Gleiser, 2017 ONSC 2858, at para. 18; R. v. Albadry, 2018 ONCJ 114, at para. 9; R. v. Bolé, 2019 ONCJ 141, at paras. 22-24; R. v. Gill, 2020 ONCJ 124, at paras. 24-30; R. v. Elakrat, 2020 ONCJ 343, at para. 14; and R. v. Creglia, 2018 ONCJ 262, at fn. 2.
37The appellant argues that this approach is consistent with s. 505 of the Criminal Code, R.S.C., 1985 c. C-46, which requires that “an information relating to the offence alleged to have been committed by the accused … shall be laid before a justice of the peace as soon as practicable” [emphasis added] after a notice of appearance has been issued to an accused or an accused has been released from custody.
38He also argues that this proposed approach is more consistent with the principles set out in Jordan . He proposes that the date of the arrest should not be the start date in all cases but that, if an accused raises concerns about a delay between the date of arrest and the date the information is sworn, the Crown should have to demonstrate that the delay was reasonable in the circumstances of the case. He argues that, in this case, there does not appear to be a reasonable explanation for the delay.
39I reject this argument for four reasons.
40First, this argument was not made in the court below: Kaiman v. Graham, 2009 ONCA 77 at para. 18.
41Second, despite the lower court decisions cited by the appellant, there is binding authority from the Supreme Court of Canada that addresses this point directly. In R. v. Kalanj, [1989] 1 S.C.R. 1594, the majority of the Supreme Court relied on the text of s. 11(b) of the Charter, which states that “any person charged with an offence … has the right to be tried within a reasonable time” [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of the arrest.
42Third, in Jordan, the Supreme Court could have revisited this issue in setting the framework for calculating delay but did not do so. Instead, the Court affirmed, at paras. 47-49, that the time for calculating delay runs from “the charge to the actual or anticipated end of trial” [emphasis added]. As noted by Code J. in R. v. Gandhi, 2016 ONSC 5612, at para. 4, “[a]lthough the majority [ in Jordan ] changed fundamental aspects of the prior s. 11(b) framework, there was no indication that the Court wished to alter the longstanding principle that s. 11(b) delay begins to run from the swearing of the Information”.
43Fourth, since Jordan, this Court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b) Charter application, time starts to run from the date of the charge and not the date of the arrest. Most recently, in R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 55, Trotter J.A. cited R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 22, which was decided before Jordan, to emphasize that “for s. 11(b) purposes, ‘[t]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, ‘charge’ means the date on which an information is sworn or an indictment is preferred’ ” . [33]
67For the forgoing reasons I am of the view that the period of delay in this case must commence on the date of the charge which I find to mean the swearing of the information on September 22, 2020. As a result, I find that the Jordan ceiling in this case is March 22, 2022 . The total Jordan delay in this case is nine hundred forty-one (941) days or thirty (30) months thirty (30) days .
Disclosure
68The initial material disclosure in this case was not disclosed to the Applicants until December 22, 2020, three (3) months after the swearing of the information. The final package of material disclosure was not released to the Applicants until April 14, 2021, almost seven (7) months after the swearing of the information and after the judicial pretrial which took place on March 19, 2021.
69The Respondent, in their materials, submit that they were ready to proceed to trial six (6) months after the swearing of the information (March 22, 2021).
70I disagree with this assessment in relation to the Respondent’s preparedness to proceed as of March 22, 2021. This assessment fails to take into account the material disclosure that was made to the Applicants in April of 2021, and certainly does not account for any reasonable period of time for the Applicants to review that disclosure in relation to their respective defences. This submission is consistent with the hands off approach to this prosecution that led to the protracted delay caused by the co-accused in this case.
71On April 19, 2021, Mr. Singh removed Mr. Esco as counsel. New counsel appeared by agent on June 7, 2021, with the Respondent, stating: “ We haven’t even received disclosure yet, Your Worship .” [34] Mr. Singh’s new counsel was not provided disclosure until October 19, 2021, almost four (4) months after this appearance .
72On January 14, 2021, the Respondent sent correspondence to the co-accused indicating an amendment will be made to two of the counts. The Respondent further advised, in that correspondence, that the amendments were to take place on the January 25, 2021 appearance. This amendment was material as the Respondent indicated that the change in substance was more serious than initially charged. The amendment was related to disclosure, in relation to the certificates of analysis, released on January 15, 2021. These amendments were not made until July 5, 2021, almost six (6) months after the release of this correspondence and disclosure .
73This Court is not assisted by the submissions of the Respondent as to why this amendment took so long to be made. It was amended unopposed on July 5, 2021. On the record before this Court it is apparent that the Respondent was not prepared to proceed to trial at any point in time prior to July 5, 2021 over nine (9) months after the swearing of the information .
Waiver
74The parties agree that there was no waiver on the part of the Applicants and I agree with their assessment.
Defence Delay – Appearances
75The Applicants submit that there is no delay on the part of the Applicants. That the Applicants were prepared to proceed to trial at all material times following the Judicial pretrial held on March 19, 2021. The Applicants submit that they were held hostage by the conduct of the co-accused, Mr. Sigh, and plagued by delayed disclosure from the Respondent. The Applicants further submit that the Respondent failed to properly manage this case and took no action to mitigate the delay caused by the co-accused’s actions.
76The Respondent submits that the Applicants are also responsible for the delay occasioned from the conduct of the co-accused, Mr. Singh, as they all proceeded collectively. The Respondent submits that the Applicants took no meaningful steps to set a trial date in the Ontario Court of Justice. That counsel for Mr. Singh was more pro‑active in communications with the Respondent. The Respondent further submits that the Applicants were not diligent in advancing their 11(b) rights as the issue of delay was raised by the Respondent.
77I cannot agree with the submissions advanced by the Respondent. It fails to take into account the obligation that the Respondent had to advance the prosecution of this case with a view to preserving the 11(b) rights of the Applicants prior to breaching the Jordan ceiling. [35] Further, it fails to take into account significant events in these proceedings that ought to have reminded the Respondents of this obligation. The record of these proceedings reads like a plea for help from these Applicants to get on with their matters, only to be held hostage by a co-accused’s conduct, which was ultimately rewarded by a stay of proceedings. The Respondent was either unaware or unwilling to respond to the Applicants’ grievance until it was too late.
78As stated in R. v. Florence, 2014 ONCA 443 [36], “it must be remembered that the onus rests on the Crown to ensure that a matter proceed expeditiously to trial . ” [37] Crown counsel should be “ motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling . ” [37] Efforts should be undertaken by all parties to remedy delay prior to the ceiling being breached.
79It is incumbent on the Crown to continually assess its case at each stage to determine whether “the decision to proceed jointly remains in the best interests of justice.” [38] In making this assessment “there may come a time where the interests of justice are no longer served by proceeding jointly, including where s.11(b) rights are in jeopardy . ” [39]
80The assessment of s. 11(b) applications where there are multiple co-accused is not about scrutinizing prosecutorial decision-making. The Court of Appeal in R. v. Nguyen, 2013 ONCA 169 [40] stated the following:
“ … decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or withdraw charges, are contingent upon independent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown’s decisions absent clear reason to do so…” [40]
81When dealing with co-accused parties, severance is not necessarily the solution in each case to avoid 11(b) concerns. The Court in R. v. Singh, 2016 BCCA 427 [41] relied on the proposition that “to suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions . ” [41]
82The Court of Appeal in R. v. Manasseri, 2016 ONCA 703 [42] contemplated delay as it relates to co‑accused and set out the importance of being mindful of the individual rights of the co‑accused parties citing R. v. Vassell:
“Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to tried within a reasonable time has been breached: [ Vassell , at para. 4]. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: [ Vassell , at para. 5]. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: [ Vassell , at para. 7] . Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: [ Vassell , at para. 10] .” [42]
83Based on the record before me, I find that the Applicants were prepared to proceed to trial following the judicial pre-trial on March 19, 2021.
84Following Mr. Singh’s release of Mr. Esco as his counsel on April 19, 2021, this matter languished in the courts for a considerable amount of time. The Applicants made their intentions clear to set a date for trial in the Ontario Court of Justice and their efforts were not responded to by the Respondent in any way until the appearance on January 17, 2022. At that appearance, the assigned Crown, Ms. Szasz, appeared on the record and was surprised to see how long these matters were before the courts to set a date for trial, attributing the blame to the co-accused, Mr. Singh, a period of eight (8) months four (4) weeks one (1) day.
85What follows from the January 17, 2022, appearance is quite telling in respect of the analysis to be made by this Court.
86The Applicants had made repeated attempts to file forms to set a date to proceed. The Applicants at all times wanted a trial in the Ontario Court of Justice but filed forms to proceed to a preliminary hearing due to the lack of election and general inaction by the co-accused. Their efforts were in vain as the local protocol precluded them from moving the matter forward to trial in the Ontario Court of Justice or preliminary hearing absent a form submitted by all of the accused parties. Mr. Singh did not submit a form.
87Mr. Singh appeared by way of 511 warrant for the entirety of the proceedings before this Court. An election was made to the Ontario Court of Justice following the Judicial pretrial on March 19, 2021, but Mr. Singh released his counsel by the next appearance. An election was not made again by Mr. Singh until December 6, 2021, where he elected to proceed to the Superior Court of Justice with a preliminary hearing, a period of eight (8) months, two (2) weeks, three (3) days from the judicial pretrial . The Respondent was clearly aware of the impact this change would have on the Applicants at that point in time, the Respondent stated as much on the record, but no action was taken by the Respondent to address this issue when it developed.
88Following the appearance on January 17, 2022, Ms. Szasz reached out to Trial Co-Ordination about dates for trial. Ms. Szasz was reminded of the protocol due to the co-accused’s status of the Applicants and was advised that Mr. Singh still had no form submitted. It was Ms. Szasz that essentially provided permission to Trial Co-Ordination to set the trial dates for the Applicants, without the co-accused, Mr. Singh, when she told Trial Co-Ordination by email: “ We are not including them. Can proceed without .” [43] It is noteworthy that this unilateral decision by Ms. Szasz on behalf of the Respondent was done without application for severance or consultation with counsel.
89The trial dates were set on January 27, 2022, one (1) year, four (4) months, five (5) days from the swearing of the information . The dates were confirmed on the record on February 8, 2022.
90It is the Crown’s prerogative as to how to proceed. That does not preclude this Court from assessing how those determinations impacted the individual 11(b) rights of the Applicants in this case.
91It was clearly the Respondent that was in control of how this matter could proceed in relation to the co-accused. The Respondent’s failure to exercise that control led to the delay in this case.
92The Respondent submits that it was the Applicants that failed to act proactively with a view to preserving their 11(b) rights. They submit that it was the Respondent that took action to preserve the 11(b) rights in this case and that the period from March 19, 2021 (judicial pre-trial) – November 7, 2021 (the second submission of trial setting forms by the Applicants), be foist upon the Applicants as defence caused delay.
93I disagree with this submission. The delay caused by Mr. Singh cannot be attributed to the remaining parties, particularly when it was the Respondent that was in ultimate control of these circumstances and had the power to control the delay caused by Mr. Singh before it became as protracted as it did. The Respondent did not permit the Applicants to set a date for trial until January 18, 2022. The charges against Mr. Singh were not stayed until June 21, 2022. The Court of Appeal in R. v. Gopie, 2017 ONCA 728 [44] addressed this issue facing a similar argument:
“I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence‑caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence . ” [44]
94Justice Munroe, of the Superior Court of Justice, in R. v. Hanan, 2019 ONSC 40 [45], a similar circumstance of Crown discretion, put it quite succinctly in stating that “ the delay beyond the ceiling did not need to happen. It was not unavoidable. It was not beyond the control of the Crown. ” [45]
95The matters before this Court are similar to the circumstances before the Court in R. v. Gyamfy, 2022 ONCJ 500 [46], where Justice Pollock wrote:
“ Ultimately, the co-accused’s matter went to warrant in December of 2021. Those months were wasted. The Applicant was simply waiting for the co-accused to move things forward and indicated their preparedness to proceed. The Crown could have made a decision to sever the accused. There was also the option of moving the matter along for the Applicant and engaging in pre-trial and date setting discussions. This is not a case where delay is justified due to complexity of the case in co-accused proceedings. The delay could have been remedied by the Crown. The Crown was obliged to assess whether the decision to proceed jointly remained in the best interests of justice. The Crown was clearly alive to the jeopardy of the Applicant’s section 11(b) rights. That should have been a reason for a determination that the interests of justice were no longer met by proceeding jointly against these two (2) accused persons . ” [47]
96The Respondent’s efforts to secure earlier trial dates did not commence until October 5, 2022, two (2) years, one (1) week, six (6) days or seven hundred forty three (743) days after the swearing of the information .
97I cannot agree with the Respondent’s submission that it was the Respondent that took action to preserve the 11(b) rights of the Applicants. I do not find that these efforts were made meaningfully to reduce the delay occasioned in this case. These efforts were made far too late to reasonably effect any change in the scheduled dates for trial. Particularly when they were advised by Trial Co-Ordination that there were no available dates in 2022 (for the time required for this trial) on March 19, 2021 following the JPT and on January 27, 2022, at date setting.
Defence Delay – Date Setting
98The first available dates for trial were in the first week of January 2023. The Applicants requested that the Charter motions be argued at the end of February 2023. The Applicants submit that it was their belief that the delay in setting was related only to the Charter arguments and not the trial proper. The Applicants submit that no delay should be deducted for delay in setting the Charter arguments as it did not impact the timing for trial.
99The Respondent submits that the Applicants were not available at the earliest dates offered at the time of date setting and that deduction should be made as the first available date for trial was during the first week of January 2023. The parties agreed to trial dates being set 60 days after the Charter arguments. The Respondent submits that had the Applicants selected the first week of January for trial commencing January 3, 2023, the trial date would have been sooner.
100I agree with the Respondents. The parties agreed that the Court could review the audio from the date setting appearance. Mr. DiPietro Jr. appeared on behalf of the Applicants and requested that the Charter be scheduled first and that they not proceed until February 23 and 24, 2023, due to the availability of counsel. The Respondent was available for the first week of January 2023. The delay of the setting of the Charter arguments delayed the setting of the trial date.
101I find that a period of fifty-two (52) days or one (1) month, three (3) weeks, one (1) day , will be deducted as defence delay against the Applicants.
Net Delay
102The total Jordan delay in this case is thirty (30) months, thirty (30) days or 941 days . The defence delay is one (1) month, three (3) weeks, one (1) day or 52 days . The defence delay is deducted from the total delay to arrive at the net delay. The net delay in this case is twenty-nine (29) months, ten (10) days .
103Given that the net delay still exceeds the presumptive ceiling of 18 months, the Crown now bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances. [48]
Exceptional Circumstances
104Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. [49]
105Exceptional circumstances are matters that lie outside the Crown’s control. They are circumstances that are not reasonably foreseeable or reasonably avoidable, and the Crown cannot reasonably remedy the delays resulting from the circumstances once they arise. [50]
106Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases . [51]
107The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. The Crown and justice system must always be prepared to mitigate the delay resulting from discrete exceptional circumstances. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion that the Crown and the justice system could reasonably have mitigated may not be subtracted. [52]
Complexity as an Exceptional Circumstance
108Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirement for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. [53]
109Complexity cannot be used to deduct specific period of delay. Instead, once any applicable quantitative deductions are made, and whether the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. [54]
110The parties before the Court agree, in large part, that this case was not particularly complex. The Respondents point to multiple co-accused parties as a “ factor ”.
111I agree with the parties that this is not a complex case. The delay occasioned in this matter had little to do with the subject matter of the case itself. The delay occasioned here had everything to do with the actions of the co-accused, Mr. Singh, and the lack of control exercised by the Respondent in managing this matter through the court.
112Even if the Crown did satisfy me that this was a complex case, they have failed to establish that they developed and executed a plan to minimize the delay. The net delay is not reasonable in view of this case’s overall complexity.
COVID-19 as an Exceptional Circumstance
113The Respondent submit that the COVID-19 pandemic is a discrete event exceptional circumstance applicable to this case. They point to the backlog resulting from the pandemic as a contributing factor to the delay in this matter.
114The Applicants submit that there is no evidence before this Court to find that the pandemic had any direct impact in the delay caused in this case. The Applicants point to the Respondent’s failure to have a plan to manage this prosecution and mitigate the delay as cause for delay in this case.
115The Ontario Superior Court of Justice noted in R v Schardt, 2021 ONSC 3143 [55], “[i]t is undisputed that the COVID-19 public health crisis amounts to a discrete event” . The question in this case is whether any time should be attributed to delay on account of this event. [55]
116The Ontario Superior Court in R v Schardt [56], further stated as follows:
“It is also undisputed that COVID-19 has caused a disruption to court services that was, and to a certain extent still is, beyond everyone’s control. This disruption has included, but not been limited to the temporary suspension of operations of the courts except for urgent matters, an inability to hear certain in-person matters, and an inability of judges to circuit to regional courts to hear in-person matters. Even once the operation of the courts expanded in 2020, certain matters such as jury trials were still not proceeding. All those who regularly work in the justice system have had to change how they conduct business and adapt to a rapidly changing environment with often little to no notice.” [56]
117The Respondent has provided evidence that satisfies this Court that the pandemic has impacted a specific period of delay in respect of this case.
118The Respondent filed an affidavit from Sergeant David Connor of the Windsor Police Service. His affidavit was in response to an inquiry from the Respondent as to the reason why it took from June 30, 2020 to November 2, 2020, for the co-accused parties to have their first appearance in court. Sergeant Connor referenced the shut down on March 17, 2020, due to the pandemic as the catalyst for the direction from the Windsor Police Service Inspector to issue court dates 12-16 weeks from the date of arrest for the first appearance. This was twice the standard practice of 6 – 8 weeks prior to the pandemic. [57]
119The affidavit sets out that the direction was designed to assist with backlog in the courts caused by the pandemic and to limit contact between officers and the public. These measures were terminated on July 8, 2020, when the protocol for issuing first appearances returned to the pre-pandemic standard of 6 – 8 weeks from the date of arrest. [58]
120The period from June 30, 2020 to November 2, 2020 is four (4) months, three (3) days or 125 days . This period of time does run from the date of arrest to the first appearance. As a result, only a portion of this time is applicable to the Jordan analysis since the information was not sworn until September 22, 2020. Therefore, the applicable period from September 22, 2020 to November 2, 2020 is one (1) month, one (1) week, four (4) days or forty-one (41) days .
121The Respondent submits that there should be a further general deduction for delay resulting from “ the ongoing fight against the global COVID-19 pandemic (and new evolving variants), ” to bring the remaining delay below the presumptive 18-month ceiling.
122I reject this submission for the reasons that follow.
123As stated in R. v. Greenidge, 2021 ONCJ 57 [59], it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry, as required by Jordan, is whether the discrete event caused the delay. “The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay).” [59]
124A finding that the pandemic and consequent impact on the Court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period. [60]
125It 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. [61]
126The delay resulting from the Crown’s tactical decisions does not constitute a reasonably unforeseeable or unavoidable circumstance. [62]
127The Respondents have failed to articulate for this Court how the pandemic impacted the delay that was caused in this case. There was no evidence filed in support of the delay caused by the pandemic that impacted the timing of bringing this case to trial after the first appearance in court.
128I find that there were other causes contributing to the delay that was caused in this case during the time period this matter was before the Court. Specifically, the actions of the co-accused, Mr. Singh, and the corresponding inaction by the Respondent. For the reasons I have set out above I do not find that the pandemic impacted the delay occasioned in this case. The cause of the delay in this case is identifiable and is directly related to the Respondent’s management of this co-accused prosecution.
Total Remaining Delay
129Taking into account the net delay of twenty-nine (29) months, ten (10) days and deducting forty-one (41) days for pandemic delay as an exceptional circumstance, related to the police protocol for first appearances, the remaining delay is twenty-seven (27) months, nineteen (19) days .
130The total remaining delay is above the presumptive ceiling, of 18 months, by nine (9) months, nineteen (19) days . Therefore, based on the Jordan framework, the remaining delay is presumptively unreasonable and the Applicants’ s. 11(b) rights have been breached.
Remedy
131The remedy for a breach of s. 11(b) rights is a stay.
Conclusion
132As a result, all of the Applicant’s charges before the Court will be stayed pursuant to s. 24(1) of the Charter .
133I would like to thank counsel for their helpful materials and thorough submissions.
Released: February 15, 2023 (Original Signed by Justice C. Uwagboe)
Justice C. Uwagboe