COURT OF APPEAL FOR ONTARIO DATE: 20231227 DOCKET: COA-23-CR-0372
Huscroft, Paciocco and Coroza JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Bryce Coates
Respondent
Counsel: Philippe G. Cowle, for the appellant Ricardo G. Federico and Saul Moshé-Steinberg for the respondent
Heard: July 14, 2023
On appeal from the stay entered by Justice Laura A. Bird of the Superior Court of Justice on August 9, 2022, allowing an appeal from the conviction entered on May 17, 2021, by Justice Peter Tetley of the Ontario Court of Justice.
Coroza J.A.:
I. OVERVIEW
[1] The respondent was convicted of “over 80,” contrary to s. 320.14(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. At trial, he brought an application for a stay of proceedings alleging a violation of his s. 11(b) right to be tried within a reasonable time. The trial judge dismissed the application. The respondent appealed to the summary conviction appeal court. That court allowed his appeal and entered a stay of proceedings. The Crown appeals, with leave, from the decision of the summary conviction appeal judge (“SCAJ”). [1]
[2] The respondent’s original trial was scheduled to commence within the Jordan presumptive ceiling. However, the global COVID-19 pandemic caused the trial to be adjourned when the courts in Ontario shut down in March of 2020. When the respondent’s trial was rescheduled, the parties accepted the first available dates offered by the trial coordinator for a two day trial. Notwithstanding his acceptance of these dates, the respondent argued before the trial judge that the Crown was obligated to explore whether the trial could be scheduled on non-consecutive dates in order to satisfy its obligation to respond to the discrete exceptional circumstance with reasonable diligence. He submitted that the failure of the Crown to do so contravened s. 11(b), in the circumstances. The trial judge held that the Crown had acted reasonably and concluded that a period of about 10 months of delay should be deducted from the total delay as an exceptional circumstance, resulting in a net delay that did not exceed the 18-month ceiling articulated by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[3] The SCAJ disagreed with the conclusion of the trial judge and found that the Crown had not taken reasonable steps in order to discharge its onus to mitigate the delay in rescheduling the respondent’s trial. In her view, approximately half of the time deducted by the trial judge ought not to have been deducted. Adding that time period back to the calculation of delay resulted in net delay that exceeded the Jordan ceiling; consequently, the SCAJ entered a stay of proceedings.
[4] The question on this appeal is whether, in this case, the SCAJ erred in not deferring to the trial judge’s conclusion that the trial coordinator’s decision to offer two consecutive days (and the Crown’s acceptance of the trial coordinator’s decision to do so) was reasonable in all the circumstances of this case.
[5] The trial judge was the local administrative judge for the Newmarket courthouse, and during the hearing demonstrated awareness of the relevant factors to consider in assessing whether the Crown acted reasonably. He concluded that it was reasonable for the Crown to prefer the earliest available consecutive dates for a two-day trial, even though earlier non-consecutive dates might have been available. The trial judge’s concerns about fair trial rights, the orderly conduct of proceedings, and the risk of losing the thread of proceedings over non-consecutive days amply justified his finding. Jordan only requires the Crown to take reasonable steps to ameliorate delay from an exceptional circumstance, not all possible steps. In this case, against the backdrop of the exceptional backlog caused by pandemic court closures, the trial judge was entitled to find that the Crown met the reasonableness standard.
[6] This court’s recent jurisprudence on trial delays arising from COVID-19 amply demonstrates the importance of deferring to trial judges’ expertise on local circumstances and practices: R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, at paras. 20-23; R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal to S.C.C. requested, 41002 and 41003. The SCAJ did not have the benefit of these cases, which counsel the opposite outcome to what she ordered in this case. The SCAJ should not have interfered with the trial judge’s conclusion in the absence of any palpable and overriding error.
[7] Accordingly, and for the reasons that follow, I would allow the Crown’s appeal, set aside the stay of proceedings entered by the SCAJ, and restore the respondent’s conviction.
II. BACKGROUND
A. The Chronology
[8] On January 14, 2019 the respondent was charged with “over 80.” The information was sworn against the appellant in Newmarket on January 24, 2019.
[9] Throughout pretrial proceedings, the defence maintained that the trial could be scheduled for one day, and the Crown maintained that it would take two days.
[10] On September 6, 2019 the Crown and defence attended the trial coordinator’s office to select trial dates. The trial coordinator offered the first available dates for a two-day trial, being May 4 and 5, 2020. The parties accepted these dates.
[11] On March 11, 2020 the World Health Organization declared that the COVID-19 outbreak had become a global pandemic. On March 17, 2020 the Premier of Ontario declared a state of emergency, which resulted in the shutdown of the Ontario Court of Justice. The Ontario Court of Justice only reopened to hold previously scheduled trials on July 6, 2020.
[12] The COVID-19 shutdown led to the cancellation of the appellant’s trial dates, and the accumulation of a significant backlog of cases in the busy Ontario Court of Justice in Newmarket.
[13] On July 17, 2020 the parties conducted a judicial pretrial. The pretrial judge affirmed the Crown’s position that two days would be needed for trial.
[14] On August 10, 2020 the trial coordinator’s office submitted four available dates for a two-consecutive-day trial. That same day, the defence accepted the first available dates. The defence also inquired of the trial coordinator, copying the Crown, what the earliest available date would be for a one-day trial.
[15] On August 26, 2020 the Crown informed the trial coordinator that it would accept any dates. A continuing judicial pretrial took place that afternoon. The Crown reiterated its belief that two days were needed for trial. The pretrial judge reaffirmed the Crown’s estimate. The trial coordinator offered revised dates, and the parties accepted March 4 and 5, 2021 as the earliest consecutive pairing.
[16] On September 1, 2020 the trial coordinator responded to the defence’s query, and stated that for a one-day trial, the earliest available date was October 1, 2020.
[17] On November 18, 2020 the defence flagged its intention to file a s. 11(b) application. In a letter to the trial coordinator, copying the Crown, the defence asked what continuation date would have been available had the trial started on October 1, 2020. The trial coordinator responded that it could not provide this hypothetical information, but explained their rationale for generally scheduling consecutive trial dates.
[18] On December 4, 2020 the defence issued its notice of motion seeking a stay of proceedings for unreasonable delay in violation of s. 11(b) of the Charter. On February 26, 2021 the trial judge dismissed the respondent’s s. 11(b) application.
[19] The trial commenced on May 4, 2021. Evidence was complete within a day, and submissions continued into May 5, 2021. On May 17, 2021 the trial judge rejected the respondent’s applications to exclude evidence under ss. 8, 9, and 10(b) of the Charter and found him guilty.
B. The Trial Judge’s Reasons Denying a Stay
[20] The trial judge began by calculating the period of total delay from the date the information was sworn to the trial date as 25 months and 10 days. He then subtracted the period between August 2, 2019 and September 6, 2019 as defence delay, since the Crown was prepared to set trial dates throughout this period and the defence was not. This left a net delay of 24 months and 5 days.
[21] Since the net delay exceeded the 18-month presumptive ceiling for delay laid out in Jordan, the trial judge turned to an exceptional circumstances analysis.
[22] The Crown argued that the entire period after the declaration of a state of emergency in Ontario on March 17, 2020 should be subtracted as an exceptional circumstance.
[23] For its part, the defence submitted that only a four-month period ought to be deducted. The defence argued that the Crown and the trial coordinator failed to take reasonable, available steps to mitigate the delay.
[24] The heart of the defence position was a claim that the trial coordinator’s preference for scheduling consecutive trial dates led to delay. The defence argued that had the Crown proactively sought the earliest non-consecutive trial dates, then the appellant’s trial could have begun on October 1, 2020 instead of March 4, 2021.
[25] The trial judge rejected the defence submission.
[26] The trial judge found that the phased plan to reopen courtrooms across Ontario, and in Newmarket in particular, was reasonably effective in mitigating the delay in this case. Further, he found that the Crown took reasonable and available steps to mitigate the delay.
[27] The trial judge expressly held that the trial coordinator’s practice of scheduling two-day matters on consecutive days was not unreasonable, and that there was no evidence that a non-consecutive second day for trial could have been found before March 5, 2021 had the trial commenced on October 1, 2020.
[28] Accordingly, the trial judge subtracted 305 days from net delay, which placed the delay under the 18-month ceiling. The trial judge held that the defence had not taken meaningful steps to demonstrate a sustained effort to expedite the proceedings, given its delay in setting the original trial dates and late issuance of a s. 11(b) motion. The trial judge therefore declined to enter an under-the-ceiling stay of proceedings.
C. The SCAJ’s Reasons Allowing the Appeal and Entering a Stay
[29] On appeal to the summary conviction appeal court, the respondent repeated his argument that since the trial could have commenced on October 1, 2020, all delay after that date should count towards the Jordan ceiling. [2]
[30] The SCAJ held that the defence did everything in its power to indicate that it wanted the earliest trial dates possible and had indicated that it would bring a s. 11(b) application if the delay exceeded the Jordan ceiling. However, the defence’s concerns “were, largely, ignored” in preference of the trial coordinator’s determination that only consecutive trial dates would be offered.
[31] The SCAJ accepted that the COVID-19 pandemic was unforeseen and unavoidable, and so constituted an exceptional circumstance. However, she rejected the Crown’s submission that it had acted reasonably in the circumstances by accepting the first available, consecutive trial dates.
[32] The SCAJ held that the Crown’s reliance on a lack of evidence about an earlier second, non-consecutive date after October 1, 2020 impermissibly reversed the burden of proof. She interpreted Jordan to mean that since the delay had already exceeded the ceiling, the Crown bore the onus to establish that, even if it took all reasonable steps to reschedule the appellant’s trial as quickly as possible, the exceptional circumstances were such that the earliest the trial could have finished was March 5, 2021. However, the evidence failed to meet this burden.
[33] While agreeing that it generally makes sense to schedule multi-day matters on consecutive days, the SCAJ held that this may not be true in cases over the Jordan ceiling. She analogized to R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, where this court held that for retrials, the Crown’s duty to re-try an accused as soon as possible means that it should utilize non-consecutive trial dates if available.
[34] In conclusion, the SCAJ stated that the Crown “is not entitled to throw up its hands and accept whatever date is offered by the trial coordinator once the Jordan ceiling is exceeded.” Accordingly, she held that all the delay after October 1, 2020 could not be deducted, meaning that the net delay exceeded the ceiling, in violation of s. 11(b).
III. ISSUES ON APPEAL
[35] The Crown raises the following grounds of appeal:
The SCAJ erred in law by extending the scope of this court’s reasoning in MacIsaac, equating rescheduled trials to retrials in the context of s. 11(b) Charter applications;
The SCAJ erred in law by holding that the Crown’s response to unexpected delay could not be reasonable unless the Crown could show that the steps it took were ultimately successful in reducing delay; and
The SCAJ erred in law by substituting her own assessment of the reasonableness of the Crown’s response for that of the application judge in the absence of any error.
[36] During oral submissions, the Crown focused its submissions on the third ground of appeal. However, in these reasons I will also address the Crown’s first ground of appeal, on the applicability of MacIsaac. The second ground of appeal largely overlaps with the third, and I propose to address them together.
IV. ANALYSIS
A. The Need to Defer to Trial Judges’ Local Expertise
[37] To begin, it will be useful to consider this court’s most recent guidance on the interaction between s. 11(b) and the COVID-19 pandemic exceptional circumstance.
[38] In the past year, this court has issued multiple judgments that are relevant to this appeal. Both the trial judge and the SCAJ issued their decisions below without the benefit of these judgments.
[39] First, in L.L., the Crown appealed from a stay of proceedings for excessive delay. The charges in this case were for sexual assaults, allegedly occurring within an intimate relationship. The Crown submitted that the application judge erred in finding that the pandemic played no role in the delay in securing trial dates. This court rejected the appeal, preferring to defer to the application judge’s “knowledge of the culture at the court location where she sits:” at paras. 21-23.
[40] The prosecution in L.L., from the laying of charges to the final disposition, took place entirely during the pandemic. Nevertheless, this court was willing to defer to the application judge’s assessment that no delay was attributable to pandemic given their localized knowledge of trial administration.
[41] Agpoon was a Crown appeal against a stay of proceedings entered for three persons charged with serious human trafficking and firearms charges. The trial judge found that each of the accuseds’ s. 11(b) rights had been violated. This court stood back and took a bird’s-eye view to assessing the pandemic as an exceptional circumstance. The panel outlined a framework for assessing the reasonableness of delay emanating from the pandemic, which was designed to be simple to apply and respectful of local knowledge.
[42] Agpoon confirmed that the pandemic falls within a category of “discrete exceptional circumstances” as defined in Jordan. However, the Crown is still obligated to make reasonable efforts to mitigate the delay resulting from COVID-19.
[43] Agpoon made clear that trial courts have substantial leeway in determining how to respond to the COVID-19 pandemic and that “it is not open to the defence to second-guess the policy decisions made that limited access to courts:” at para. 34. This court further recognized that the Crown and justice system are entitled to prioritize cases when clearing the backlog caused by the pandemic.
[44] Cumulatively, this court’s recent jurisprudence supports the Crown’s position on this appeal that trial judges – equipped with on-the-ground local expertise on the needs, practices, and culture of their own courts – have significant discretion on how best to respond to an exceptional circumstance. [3]
[45] Furthermore, in responding to the exceptional circumstance of a backlog of cases that have resulted because of the pandemic, trial judges must remain cognizant of this court and the Supreme Court’s guidance that reasonableness under s. 11(b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources:” R. v. Allen (1996), 92 O.A.C. 345 (C.A.), at para. 27, aff’d , [1997] 3 S.C.R. 700; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 61. An analysis of the reasonableness of the Crown’s actions in any one case inherently requires a consideration of the broader context of the functioning of the court system, especially in an exceptional circumstance.
[46] To that end, the Crown need not tender evidence to prove that it took all available steps to expedite any given trial delayed by the pandemic – it must simply show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. The Crown does not have to show that the steps it took were successful, only that it reasonably attempted to avoid the delay. Jordan also makes clear that a trial judge’s sense of local conditions, based on the judge’s good sense and experience, can suffice to ground a finding of reasonableness: at paras. 70-74.
[47] I now turn to the Crown’s appeal.
B. MacIsaac Does Not Apply to the COVID-19 Exceptional Circumstance
[48] The Crown argues that the SCAJ erred by holding it to the hightened level of urgency that this court prescribed for scheduling retrials in MacIsaac.
[49] MacIsaac was an appeal arising out of a retrial. Retrials raise unique considerations in the s. 11(b) context. In a retrial, the Crown bears a special burden, over and above its duty from Jordan, to re-try the accused “as soon as possible:” MacIsaac, at para 23; see also R. v. Satkunananthan (2001), 143 O.A.C. 1, at para. 55. It is within this context that this court in MacIsaac faulted the Crown for insisting on scheduling a ten-day retrial over consecutive days: at paras 61-65.
[50] An accused subject to a retrial following a successful appeal will generally spend more time overall within the criminal justice system than an accused facing their first trial, even delayed by the pandemic. Appellate delay, which for pragmatic reasons is not dealt with as rigidly as trial delay, increases the total time the case stays “in the system.” When the case is remitted back to the trial court, local needs and administrative convenience are compromised to ensure the case is given priority.
[51] However, the same special circumstances do not apply to trials, where more deference can be afforded to local conditions. And it does not apply in this case. While retrials constitute a small percentage of ongoing criminal matters, the trial judge, who was a local administrative judge, noted that COVID-19 had put on hold “hundreds and probably more realistically thousands of cases” in his jurisdiction alone.
[52] Since this court decided MacIsaac, the Supreme Court has addressed the interaction between s. 11(b) and retrials in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216. J.F. expressly accepted MacIsaac’s holding that retrials should be prioritized when scheduling hearings, and should generally take less time than a first trial: at paras 70-71. However, the Supreme Court also emphasized that the analysis remains contextual to the circumstances of the particular case: at para. 73. This call to consider case-specific context echoes the Supreme Court’s general resistance to add additional bright-line rules to the s. 11(b) analysis post-Jordan: see R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 65; J.F., at para. 66.
[53] Accordingly, MacIsaac should not be understood as imposing a bright-line rule on scheduling non-consecutive over consecutive trial dates in the COVID-19 exceptional circumstance context. The SCAJ's reliance on MacIsaac in this case was not apt. The same considerations that must be taken into account in rescheduling a retrial do not necessarily apply to a case (such as this one) that had to be adjourned due to the closure of the courts following COVID-19.
C. The SCAJ Erred in Law by Substituting Her Own Assessment of the Reasonableness of the Crown’s Response
[54] The trial judge was in the best position to evaluate the reasonableness of the steps that the Crown took to ameliorate delay in this case. He was in the best position to consider whether the trial coordinator’s decision to schedule the respondent’s trial on two consecutive days in the face of a mass rescheduling of matters impacted by COVID-19 was appropriate and that the Crown’s decision to accept consecutive dates without exploring the possibility of non-consecutive dates was reasonable. His conclusion was heavily driven by an assessment of the facts. And those facts are reviewed on a standard of palpable and overriding error: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, 453 D.L.R. (4th) 189.
[55] I see no palpable and overriding error in the trial judge’s assessment. He concluded that the Crown took reasonable and available steps to mitigate the delay in view of the assorted public health notices and directives issued by the Chief Justice of his court, all of which complicated the scheduling process. He considered and rejected the defence argument that the trial coordinator’s practice of scheduling two-day matters on consecutive dates if at all possible (a practice the trial judge suggested is applied routinely throughout the province) was unreasonable and created untoward delay in rescheduling the respondent’s trial.
[56] The SCAJ picked up on this point but failed to defer to the trial judge’s factual findings by concluding:
In any event, the Crown is not entitled to throw up its hands and accept whatever date is offered by the trial coordinator once the Jordan ceiling is exceeded. The [Crown] did not provide an evidentiary basis upon which it could be concluded that it took reasonable steps to mitigate the delay in re-scheduling [the respondent’s] trial from October 1, 2020 onwards.
[57] With respect, the SCAJ erred in this passage by disturbing the trial judge’s conclusions, which were not tainted by legal errors. The SCAJ should have deferred to the trial judge’s expertise in assessing whether the court and the Crown had acted reasonably. Contrary to the SCAJ’s observations, the record does not support that the trial crown simply “threw up its hands” and accepted whatever dates were offered. Jordan does not require the Crown to take any and all steps proposed by the defence to expedite matters. So long as the Crown acts reasonably and consistently with its duties, it can establish exceptional circumstances that would justify the delay as reasonable: see R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, at para. 47, leave to appeal to SCC refused, [2017] S.C.C.A. No. 284.
[58] I start with the following factual findings of the trial judge that find support in the record in this case:
- Due to COVID-19, a significant backlog of cases had accumulated in busy jurisdictions such as the Ontario Court of Justice in Newmarket;
- A two-day trial had been affirmed as a reasonable trial estimate at two separate judicial pre-trials;
- A two-day trial estimate was in any event objectively reasonable given the forecast of three Crown witnesses and an anticipated multi-pronged Charter motion from the defence;
- The Crown in this case reached out to the defence as soon as the prospect of setting a new trial date arose in July 2020 with trial dates being scheduled thereafter in fairly short order;
- There was a phased plan to reopen courtrooms, and the implementation of that plan at the local level was reasonable in mitigating the delay at issue in this case; and
- The task of rescheduling all trials that could not proceed because of the pandemic, including defining priorities while the court and trial coordinators through the province continued to respond to changing public health recommendations that impacted the operation of the criminal justice system, has been “overwhelming, to say the least:” R. v. Gutierrez, 2020 ONSC 6810, at para. 16.
[59] Generally, as this court stressed in Agpoon, where access to the courts has been limited as a result of priorities set in addressing the pandemic backlog, the attributable delays are to be treated as discrete exceptional circumstances: at paras. 32-33.
[60] Here, the Crown’s choice to defer to the trial coordinator’s policy that all efforts should be made to schedule multi-day matters on consecutive days, where appropriate, was a reasonable response to the pandemic delay. The trial judge in submissions appreciated that consecutive dates were reasonable given the need to balance competing policy objectives, including the risk to the respondent’s fair trial rights:
Now, one of the things we didn’t talk about was the consequences of that if that consideration were to prevail, and I understand from an 11(b) perspective it might, but in a busy jurisdiction like this, the second busiest court in the province next to Brampton, and the volume of work we do, there are other competing Charter interests and I’ll just reference this more for Mr. Coates’ benefit because I know it’s not lost on Mr. Federico, including preservation of fair trial interests and orderly conduct of a trial in circumstances where if we separate trial dates, something may be lost in the exchange.
So it’s not just a simple matter of considering the earliest possible time available when there are other Charter considerations and all as meaningful as the other that have to be factored into the mix and I am not suggesting that the judges are incapable of keeping track of matters, we do so as a matter of course, many, many matters all at the same time, but I am sure one of the preferences referred in the Chief’s memo, not the current chief, but the Chief Justices from 1999 reflects those considerations that there are other Charter protected interests that have to be weighed into the mix. [Emphasis added.]
[61] These observations were consistent with the evidence of the trial coordinator about the risks of further adjournments when non-consecutive dates are scheduled. According to the trial coordinator, one of the reasons for scheduling consecutive days is to avoid scheduling trial continuations, thereby creating a further layer of scheduling issues (e.g. the trial judge’s schedule may become encumbered by a multi-day matter, or they may be seized by other matters such as sentencings or pretrial motions. They may attend a conference, or a vacation). Non-consecutive dates also create the need to order transcripts of the original proceedings, and depend on the availability of a courtroom for a continuation.
[62] Other variables that are engaged each time the trial coordinator is called upon to schedule a further date include: the Crown’s schedule; Crown witness’ schedules; defence counsel’s schedule; defence witness’ schedule; and the schedule of the accused. The trial coordinator concluded by explaining that:
Matters in the Ontario Court of Justice are scheduled months in advance.… It is extremely rare that the same Justice would be available on the first day and would have another one day availability soon thereafter. Scheduling matters piecemeal is not very practical or efficient. [Emphasis in original.]
[63] Although the way the Ontario Court of Justice schedules trials varies by jurisdiction, it is the exception rather than the rule to schedule the evidentiary portion of a trial on a series of non-consecutive days. [4] This is to ensure that trials finish within the allotted time and do not require continuation dates.
[64] The trial judge was rightly concerned about a practice of scheduling non-consecutive trial dates as an impractical solution to dealing with the backlog of cases. As his comments show, he feared that the proposed solution would come at the costs of fair trial interests, which are also protected by the Charter. His conclusion that the Crown and the court acted reasonably in scheduling this “over 80” trial over consecutive dates was the product of local expertise and the reasonable balancing of competing interests in addressing the pandemic backlog. The trial judge went on to say:
[y]ou know, you can’t, and I think the cases reflect this, view each case as if it were an island unto itself because we have a delay in this jurisdiction, and I can speak with some degree of authority in this because I’m as I’ve referenced the administrative judge here. I am not suggesting it’s a perfect system, it’s not, it’s far from it, but we have hundreds and probably more realistically thousands of cases that were put on hold as a consequence of the intervention of the most unexpected of events … and we have not recovered yet from all of that, although I think we’re certainly open to fair critique here, and I appreciate that there’s the overarching obligation to be respectful of individual Charter rights and freedoms, but this court quite frankly has I think done its best and its best may be found wanting, I am not suggesting that it’s been perfect, it hasn’t, to try and carry on in these difficult circumstances. [Emphasis added.]
[65] I see no palpable and overriding error in this assessment of the delay and the court and the Crown’s response to it.
[66] The SCAJ held that the Crown’s reliance on the lack of evidence that the trial could have finished any earlier than March 5, 2021 had it started on October 1, 2020 had the effect of reversing the burden of proof. The respondent on this appeal repeats this critique. I do not accept that the trial judge reversed the burden of proof for two reasons.
[67] First, I see nothing in the trial judge’s reasons that would suggest he reversed the burden. At the outset of his exceptional circumstances analysis, he noted that the Crown may rebut the presumption of unreasonableness for cases over the presumptive ceiling. Citing to R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 138, he observed that the Crown must demonstrate that it took reasonable and available steps to avoid and address the delay arising from an otherwise exceptional circumstance, before the delay exceeded the presumptive ceiling. The trial judge therefore explicitly identified the correct burden.
[68] In a passage the respondent impugns as reversing the onus of proof, the trial judge rejected defence counsel’s submissions on non-consecutive trial dates. However, I am not persuaded that he did so because of a lack of evidence from the respondent. The basis for the trial judge’s decision emerges in the following passage, where he concluded that the phased plan for reopening Ontario Court of Justice courtrooms was reasonable in mitigating the delay at issue in this case. This is an affirmative finding that can only be understood as a correct application by the trial judge of the burden of proof, as articulated in Faulkner.
[69] The respondent also impugns a passage where the trial judge noted that there was no evidence about when a second non-consecutive trial date would have been available. However, by this point in his reasons, the trial judge had already concluded that the Crown and the court system acted reasonably in response to an unprecedented intervening event impacting all outstanding prosecutions. I do not read this passage as reversing the burden of proof, but rather as responding to an outstanding argument raised by the defence.
[70] Second, I find no support in the record for the claim that the trial judge may have been fixated on the absence of evidence called by the defence to show that the trial would have finished earlier had the trial coordinator offered a second non-consecutive date. The practical reality is that by the time the respondent had filed his s. 11(b) application (about three months after the trial dates had been rescheduled), that information was likely impossible to obtain. The trial coordinator would have had to determine which judge would have been assigned the trial on October 1, and what their availability for a hypothetical second non-consecutive date was at the time of scheduling. This would be a fruitless inquiry, dependant on hypothetical and hindsight reasoning. In any event, this issue was irrelevant because the focus of the trial judge during exchanges with counsel was not on whether there was evidence of an earlier second date had the trial commenced on October 1, 2020. Instead, early in the proceedings, the trial judge remained singularly focused on the real issue in this case: whether the Crown and the court responded reasonably to the COVID-19 pandemic. This focus is demonstrated in the following remarks made by the trial judge during the scheduling of the s. 11(b) argument:
I have read the 11(b) application. I think it may turn on issues of other than the availability of non-sequential dates quite frankly. I think it turns on consideration [sic] of whatever treatment is deemed to be appropriate with respect to the intervention of the COVID pandemic. [Emphasis added.]
[71] This focus continued during the application itself.
So I am mindful, though, Mr. Federico, that if this matter had been divided up in terms of days, at least theoretically, the matter could have been concluded at an earlier point in time. That much I think has been established. Where I think the contest lies here is apart from some days where [the trial Crown] is about to tell me the Crown was in a position to set the date or urged that a date be set, there was reluctance on the part of the defence until they knew whether with certainty whether it was a one or two-day matter, you referenced why the request for the witness list, but I think it’s the COVID period that really is the prevailing consideration here. [Emphasis added.]
[72] In sum, the SCAJ should have deferred to the trial judge’s factual findings. As this court has said, the reasonableness of the length of time to prosecute a case during an exceptional circumstance takes its colour from the surrounding circumstances. The trial judge correctly stepped back and took a bird’s-eye view of the surrounding circumstances of this case. He properly employed his expertise and local knowledge of his jurisdiction and found that the offer of two consecutive dates from the trial coordinator and the Crown’s acceptance of these first available dates was reasonable and mitigated the delay. The SCAJ impermissibly interfered with that conclusion in the absence of palpable and overriding error.
V. DISPOSITION
[73] I would allow the appeal, set aside the respondent’s stay of proceedings, and restore his conviction entered at trial for “over 80.”
Released: December 27, 2023 “G.H.” “S. Coroza J.A.” “I agree. Grant Huscroft J.A.” “I agree. David M. Paciocco J.A.”
[1] A panel of this court granted leave to appeal on April 11, 2023.
[2] The respondent also appealed the trial judge’s finding that the police did not breach his s. 10(b) informational rights. The SCAJ rejected this ground of appeal, and it is not before this court.
[3] After the hearing in this matter, this court released its judgement in R. v. Long, 2023 ONCA 679. Long held that COVID-19, with its uniquely insidious impacts on all aspects of society, arguably went beyond the characterization from Jordan as a mere “exceptional circumstance.” Therefore, local prioritization of cases is permissible, and “any strictures embedded in Jordan must yield to that reality:” at para. 75. This is another recent example of this court deferring to the trial judge’s assessment of what was a reasonable response to pandemic delay.
[4] See the comments of Rahman J. in R. v. Jafour, 2019 ONCJ 175, at para. 24.
