COURT OF APPEAL FOR ONTARIO
DATE: 20240719 DOCKET: C70707
Zarnett, Coroza and Monahan JJ.A.
BETWEEN
His Majesty the King Appellant
and
Yared Mengistu Respondent
Counsel: Dana Achtemichuk, for the appellant Angela Ruffo, for the respondent
Heard: May 9, 2024
On appeal from the stay entered by Justice William S. Chalmers of the Superior Court of Justice on April 22, 2022.
Monahan J.A.:
OVERVIEW
[1] The Crown appeals the stay of proceedings granted by the application judge for delay in bringing the charges against the respondent to trial, in violation of s. 11(b) of the Charter. The application judge found that, after deducting the delay attributable to the defence and to exceptional events, the remaining delay was 984 days, exceeding the presumptive ceiling of 30 months established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, by 71 days.
[2] The Crown argues that the application judge erred in three respects:
a. by failing to characterize the delay in completing the preliminary inquiry as a discrete exceptional circumstance, which would have reduced the remaining delay by a further 71 days.
b. by failing to account for judicial deliberation time required to release the reasons for committal following the completion of the preliminary inquiry, which would have reduced the remaining delay by a further 56 days; and
c. by failing to include the fact that the defence failed to raise s. 11(b) concerns in a timely manner in the assessment of defence delay, which would have reduced the remaining delay by a further 218.5 days.
[3] For the reasons explained below, I find that the application judge did not make the first error. The other two alleged errors are in fact new matters that were not raised before the application judge. Although I would allow the Crown to raise the issue of the proper accounting for judicial deliberation time in an interlocutory matter, I disagree with the Crown position as to how it is treated. I would not permit the Crown to raise the third issue which is a fact dependant submission on which we lack a sufficient record.
[4] Accordingly, I would dismiss the appeal.
THE PROCEEDINGS
[5] The respondent, Mr. Mengistu, was charged with a number of serious offences arising out of an incident in which he is alleged to have rammed his motor vehicle into his former sister-in-law’s vehicle on August 19th, 2018.
[6] The preliminary inquiry commenced on August 29th, 2019, and was scheduled to be completed in five days. However, at the end of the fourth day, the final Crown witness had not completed her evidence and it was not convenient for her to return the next day because of school and work commitments. It was agreed that the hearing would be adjourned to November 15, 2019. The evidentiary portion of the hearing was completed on that day and the judge took the committal decision under reserve.
[7] On January 10, 2020, Mr. Mengistu was committed for trial on 13 charges, including one charge of attempted murder and multiple charges for dangerous operation of a motor vehicle causing bodily harm.
[8] On March 10, 2020, a 10-day jury trial was scheduled to commence on May 10, 2021. However, on March 17, 2021, that trial was postponed due to a pandemic-related suspension of court operations.
[9] In early April 2021, a new trial date of September 19, 2022, was selected. Around that time, counsel for Mr. Mengistu advised of his intention to bring a s. 11(b) application for delay.
[10] In July 2021, the court advised the parties that trial dates had become available in August 2021. Although the Crown was prepared to proceed on one of the dates offered, Mr. Mengistu indicated that his s. 11(b) delay application was being prepared and that he was not in a position to accept the August 2021 trial dates.
[11] Mr. Mengistu’s s. 11(b) application was heard in early 2022. In his April 22, 2022 decision, the application judge calculated the total delay from the date the charges were laid on August 19, 2018, to the anticipated end of trial on September 30, 2022, as 1503 days. After deducting 21 days of defence delay and 498 days due to exceptional circumstances associated with the COVID-19 pandemic (i.e., from the originally scheduled trial date of May 10, 2021, to September 30, 2022), the application judge calculated the remaining delay as 984 days. Because that delay exceeded the presumptive Jordan ceiling by 71 days and the case was not particularly complex, the application judge stayed the proceedings.
[12] In its submissions on the s. 11(b) application, the Crown had argued that an additional 71 days—the length of the postponement of the evidentiary phase of the preliminary inquiry to accommodate the final Crown witness— should be deducted. In particular, the Crown argued that the inability to complete the evidence of the final Crown witness was unexpected or unanticipated and should therefore have been characterized as a discrete exceptional circumstance. The application judge was not satisfied that the completion of this witness’ evidence was unexpected or unanticipated and that it could not have been reasonably mitigated by the Crown, and accordingly declined to deduct any period associated with the delay in completing the preliminary inquiry.
[13] I note that the Crown did not expressly argue that there should be any further deduction on account of the time taken by the preliminary inquiry judge to render the committal decision, nor did the Crown object to the alleged failure by defence counsel to raise the s. 11(b) issue in a more timely manner. Thus, neither of these issues was directly considered by the application judge.
STANDARD OF REVIEW
[14] While the ultimate decision as to whether there has been unreasonable delay and the characterization of periods of delay are subject to a standard of correctness on review, the application judge’s findings of fact that underpin that analysis are reviewable on a standard of palpable and overriding error: R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 14; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, leave to appeal refused, [2019] S.C.C.A. No. 423, at para. 73. In particular, the assessment of whether a period of delay flows from a discrete event, and whether the Crown took reasonable steps to mitigate that delay, are fact-driven and therefore owed a high degree of deference: R. v. Safdar, 2021 ONCA 207, 403 C.C.C. (3d) 91, aff’d 2022 SCC 21, 414 C.C.C. (3d) 147, at paras. 46-51; Jordan, at para. 71.
ANALYSIS
(1) The application judge did not err in finding that the additional time needed to complete the preliminary inquiry was not a discrete exceptional circumstance
[15] The Crown argues that the application judge erred in failing to find that the 71-day delay arising from the need to complete the evidence of the final Crown witness at the preliminary inquiry was an unexpected or unanticipated event. In particular, the Crown argues that the application judge incorrectly focused his analysis of this issue on whether the witness was hostile or adverse, rather than considering a series of complications associated with the delay in completing her evidence.
[16] I do not agree. The application judge rejected the Crown’s argument on this issue primarily on the basis that the witness’ availability ought to have been canvassed by the Crown well in advance and, in any event, no later than when the Crown and police met with the witness the week before the preliminary inquiry. In short, he was not satisfied that the witness’ unavailability to complete her evidence was a reasonably unforeseen event, nor that the Crown could not have taken steps to mitigate the difficulty.
[17] These were factual findings that were open to the application judge on the record and were reasonable in the circumstances. Accordingly, I see no basis to intervene and would dismiss this ground of appeal.
(2) Judicial deliberation time required to prepare reasons for committal following the preliminary inquiry is included in the Jordan ceiling and therefore not deducted when calculating the actual delay
[18] The Crown argues that judicial deliberation time taken to prepare interlocutory rulings, including reasons for committal following a preliminary inquiry, should not be considered as within the presumptive Jordan ceilings. On this basis, the Crown submits that the 56 days from November 15, 2019, until January 10, 2020, during which time the preliminary inquiry judge was preparing reasons for committal, ought to be deducted from the period of actual delay before comparing that period to the presumptive Jordan ceiling. In the alternative, the Crown argues that the judicial deliberation time on the committal decision ought to be deducted as a discrete exceptional event, as there were several contested complicated issues on committal.
[19] Although the issue of judicial deliberation time following the preliminary inquiry was referred to in passing in submissions before the application judge, the Crown did not argue that any deduction should be made on account of judicial deliberation time and the application judge did not comment on it. Mr. Mengistu argues that the Crown should not be permitted to raise what is in substance a new issue on appeal.
[20] Accordingly, prior to considering the merits, it is necessary to determine whether it is appropriate to permit the Crown to raise this ground of appeal.
(a) The Crown should be permitted to raise this new issue on appeal
[21] Generally speaking, if a new issue on appeal would expand the scope of litigation, the court should not permit the issue to be argued: R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, leave to appeal refused, [2015] S.C.C.A. No. 299, at para. 49. A party seeking to bring a new issue within the exception to this general prohibition must meet or satisfy three preconditions: (i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal; (ii) the failure to raise the issue at trial must not be due to tactical reasons; and (iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, at para. 43.
[22] In my view, the Crown has satisfied these preconditions and should be permitted to raise this argument on appeal. I reach this conclusion even though success by the Crown on this issue would not, on its own, lead to a different result on the appeal (a 56-day reduction still leaves a delay that exceeds the 30 month presumptive limit). The issue raised by the Crown is largely one of general application, the determination of which does not turn on the particular factual circumstances of this case. Moreover, we have a sufficient record to evaluate the Crown’s case-specific alternative argument. There is thus no difficulty with addressing the issue fully and fairly based on the record before us. Nor is there any evidence that the failure to raise this issue before the application judge was due to tactical reasons.
[23] Moreover, there are conflicting decisions from lower courts in Ontario on whether judicial deliberation time should be counted within the Jordan framework. [^1] While this court is yet to pronounce on the issue, [^2] appellate courts in other Canadian jurisdictions have taken divergent approaches on the matter of judicial deliberation time for interlocutory applications. [^3] Meanwhile, in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, the Supreme Court of Canada determined that deliberation time for a final verdict following the completion of a trial should not be included in the Jordan ceiling, but did not address the issue of whether judicial deliberation time for interlocutory rulings should similarly be excluded. Since the matter has arisen in a number of different contexts and has potentially broad application, it is desirable and in the interests of justice that this court provide guidance and clarity for Ontario courts on the matter.
(b) As a general rule, judicial deliberation time for an interlocutory matter is included within the Jordan presumptive ceilings and is not deducted when calculating the period of actual delay
[24] As noted above, in KGK, the Supreme Court held that the time taken by a trial judge to render a decision after the evidence and closing arguments in a trial have been completed is not included in the presumptive ceilings established in Jordan. Moldaver J. noted that the Jordan ceilings were a specific solution designed to address the culture of complacency in bringing accused persons to trial. There was no suggestion in Jordan that verdict deliberation time formed part of the culture of complacency or that it contributed to the delays in bringing accused persons to trial. Further, including this time in the presumptive Jordan ceilings would make the adjudication of s. 11(b) motions speculative, since there would be no way of knowing how much time would be needed to render a verdict and thus no way to determine in advance the expiry of the Jordan presumptive ceilings.
[25] The Crown urges us to apply the same rule to judicial deliberation time required to render interlocutory decisions. The Crown argues that the judicial deliberation process should not be rushed, truncated, or eliminated because a judge is concerned about the Jordan ceiling. Moreover, the Crown has no ability to control the amount of time taken by a judge to render an interlocutory decision. Thus, to respect judicial independence and promote trial fairness, such deliberation time should not be considered as time included in the Jordan presumptive ceilings.
[26] In contrast, Mr. Mengistu argues that regular or normal interlocutory steps, like a ruling on committal after a preliminary hearing, are already accounted for in the Jordan ceilings. The Crown is, in effect, seeking to expand the presumptive Jordan ceilings above the existing 18- and 30-month limits. Moreover, temporarily pausing the Jordan clock for interlocutory decisions would run counter to the Supreme Court’s emphasis in both Jordan and KGK on promoting certainty and predictability in assessing delay for purposes of s. 11(b).
[27] I agree with Mr. Mengistu that judicial deliberation time for interlocutory decisions should generally be considered as already included within the existing Jordan ceilings. I do so for three reasons.
[28] First, the time needed for judges to render interlocutory decisions, although not expressly addressed in Jordan, is, in my view, implicitly accounted for in the presumptive ceilings established by the court. As noted in Jordan, there is little reason to be satisfied with presumptive ceilings on trial delay set at 18 or 30 months since, “[t]his is a long time to wait for justice”. Nevertheless, these relatively generous time limits reflect “the realities we currently face” (at para. 57). These “realities” include the “inherent time requirements of the case and the increased complexity of criminal cases” as well as “the significant role that process now plays in our criminal justice system” (at para. 53).
[29] Jordan further states, at para. 65, that, in setting the presumptive ceilings, the court had already taken into account procedural requirements such as interlocutory defence applications.
[30] Such interlocutory proceedings necessarily involve, not simply the time needed for counsel to prepare and make submissions, but for the judge to rule on them. So, too, with respect to the time needed to complete a preliminary inquiry, which involves not simply the evidence and arguments of counsel but also the committal decision by the judge. In my view, there is no principled basis upon which to bifurcate the evidence and argument phase from the judicial deliberation phase of such interlocutory proceedings for purposes of the Jordan analysis.
[31] Second, excluding judicial deliberation time from the presumptive Jordan ceilings would run counter to Jordan’s emphasis on certainty and predictability as a means to counter the culture of complacency towards delay in the criminal justice system. The Jordan framework provides clear presumptive time limits that can be calculated from the outset of a criminal proceeding. It significantly reduces the need to engage in complicated micro-counting. This clarity focuses all those involved in the criminal justice system on proactive, preventative, delay-reducing problem-solving, and promotes accountability.
[32] A new rule creating “time outs” during which the Jordan clock would cease to run would reintroduce the very uncertainty that Jordan sought to reduce. Because it would be impossible to know in advance how often or how long these time outs would occur, the predictability and accountability that Jordan sought to promote would be undermined.
[33] Third, I see no reason why including judicial deliberation time for interlocutory matters in the Jordan ceilings would undermine judicial independence. As Jordan emphasized, the presumptive time limits are intended to promote accountability on the part of all participants in the criminal justice system, including the courts themselves. Judges are well aware that they are required to deal with interlocutory proceedings in a fair, but also a timely and efficient manner, and have done so without any apparent difficulty in the eight years since Jordan’s presumptive ceilings have been in place. I see no reason to doubt that this will continue in the future.
[34] Nor is this inconsistent with KGK, which merely affirmed that the presumptive Jordan limits apply only up until the actual or anticipated end of the evidence and argument at trial, and do not include time needed for the judge to render a verdict following trial. As pointed out in KGK, the Jordan framework was designed so that it could be applied in a straightforward manner, thereby promoting predictability and accountability. These goals would be undermined if judicial deliberation time after evidence and argument at trial were included within the framework, since it would be impossible to know in advance the end date of the presumptive Jordan ceilings. Conversely, as explained above, excluding judicial deliberation time required to render interlocutory rulings from the Jordan framework would produce the same uncertainty that KGK indicated ought to be avoided. Thus, in my view, KGK supports, rather than contradicts, the inclusion of judicial deliberation time associated with interlocutory rulings within the Jordan presumptive ceilings.
[35] I therefore conclude that judicial deliberation time required to deal with interlocutory matters is generally included within the presumptive Jordan ceilings. The Crown argues, in the alternative, that the judicial deliberation time taken by the preliminary inquiry judge in this case should be deducted as an exceptional circumstance, since the decision on committal raised a number of complicated issues.
[36] I would not accede to this argument. Defence counsel conceded committal on several of the charges and the preliminary inquiry judge was prepared to deliver his decision on committal on December 19, 2019, but defence counsel was not available on that day. Thus, the matter was put over to January 10, 2020 because of counsel unavailability, rather than case complexity. Moreover, in his reasons on the s. 11 (b) motion, the application judge indicated that the case was not particularly complex. I see no basis upon which this court could come to a different view about the committal decision, particularly when the Crown did not raise this concern before the application judge.
[37] I therefore conclude that the deliberation time taken by the preliminary inquiry judge was included within the Jordan ceiling, and no deduction for it from the actual period of delay was warranted. I would dismiss this ground of appeal.
(3) There is an insufficient factual record upon which to determine if defence counsel’s alleged failure to raise s. 11(b) concerns in a timely manner contributed to the unreasonable delay in this case
[38] The Crown argues that defence counsel failed to raise s. 11(b) concerns in a timely way and the resulting delay ought to be deducted as defence-caused delay. The Crown points out that defence counsel knew as of March 10, 2020, that Mr. Mengistu’s trial was scheduled outside the presumptive Jordan ceiling and yet did not raise s. 11(b) concerns until April 13, 2021, 27 days before the trial was initially scheduled to start. Relying upon the Supreme Court’s decision in R. v. J. F., 2022 SCC 17, 413 C.C.C. (3d) 293, as well as a series of cases flowing from J.F., [^4] the Crown argues that the defence cannot wait to complain about the delay until it is locked in, and the Crown can do nothing to mitigate it. The Crown further argues that “it is a reasonable inference” that it would have found an earlier trial date had defence counsel raised concerns over delay in a more timely way.
[39] As noted above, this argument was not directly raised before the application judge and thus he did not consider it. Mr. Mengistu therefore argues that the Crown ought not to be able to raise this new argument on appeal. In the alternative, Mr. Mengistu argues that his counsel did in fact raise s. 11(b) concerns in a timely way and, in any event, there is no evidence that the timing of the defence raising this concern contributed to the delay in this case.
[40] In order for the Crown to succeed on this ground of appeal, it must establish the following: (i) defence failed to raise s. 11(b) concerns in a timely way; and (ii) that failure contributed to the delay in bringing the matter to trial within the presumptive Jordan ceilings.
[41] In my view, there is an insufficient factual record upon which to determine the second of these issues and would therefore not permit the Crown to raise it for the first time on appeal.
[42] This absence of a sufficient factual record is underscored by the application judge’s consideration of whether the period from April 20, 2020 to the initial trial date of May 10, 2021 should be deducted on account of the exceptional circumstance of the COVID-19 pandemic. The application judge rejected the Crown’s argument on the basis that there was no evidence as to what steps the Crown would have taken, “but for” the pandemic, to secure an earlier date. The Crown does not appeal this aspect of the application judge’s ruling.
[43] It necessarily follows that, even assuming without deciding that defence counsel failed to raise s. 11(b) concerns in a timely way, we lack sufficient evidence as to what steps the Crown might have taken to reschedule the trial had it been made aware of the delay concerns at an earlier time.
[44] Given the fact that we lack the evidence that would be required to properly address this issue, the Crown ought not to be permitted to raise it for the first time on appeal. Accordingly, I decline to consider it.
DISPOSITION
[45] For the above reasons, the appeal is dismissed.
Released: July 19, 2024 “B.Z.” “P.J. Monahan J.A.” “I agree. B. Zarnett J.A.” “I agree. S. Coroza J.A.”
[^1]: Compare R. v. Mitrovic, 2018 ONSC 6710, at paras. 23-25 (excluding judicial deliberation time from the Jordan ceilings) with R. v. Dhindsa, 2022 ONSC 6782, at paras. 36-38 and R. v. Brar, 2020 ONSC 4740, at paras. 123-32 (including judicial deliberation time in the Jordan ceilings). [^2]: The issue was raised in R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at paras. 69-71, but the court did not find it necessary to consider the issue in order to resolve the appeal. [^3]: Compare, for example, R. v. Chang, 2019 ABCA 315, 378 C.C.C. (3d) 1, at paras. 62-76 (excluding judicial deliberation time from the Jordan ceilings on the basis that “quality justice [should not be subordinated] to speed, and judicial independence”) with R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1, at paras. 132-42 (holding that judicial deliberation time is part of the inherent time requirements included within the Jordan framework and can only be deducted where the time taken is unreasonable). [^4]: The Crown relies in particular upon R. v. Kullab, 2023 ONCJ 458, at paras. 8 (i) and 21-32.
