Court File and Parties

Ontario Court of Justice

Date: 2020-11-23

Court File No.: BRAMPTON 3111 998 19 1246 BRAMPTON 3111 998 19 2455

Between:

Her Majesty the Queen

— and —

Robert Stack

Before: Justice A. R. Mackay

Heard on: October 26, 2020

Reasons for Judgment released on: November 23, 2020

Counsel:

• Maria Stevens, for the Crown
• Robert Stack, on his own behalf
• Jennifer Myers, Amicus Curiae

Ruling on Section 11(b) Charter Application

MACKAY J.:

Overview

[1] Mr. Stack was arrested on February 5, 2019 and charged with communicating with a person under the age of sixteen for the purpose of facilitating sexual assault and sexual interference, failure to comply with recognizance, and failure to comply with undertaking. He is in custody on these charges but is also finishing a lengthy sentence.

[2] Mr. Stack alleges that his right to a trial within a reasonable time was breached contrary to s. 11(b) of the Charter. The court and Mr. Stack were assisted by Ms. Myers in her capacity as amicus. Mr. Stack's matter is one of the scores of cases that were adjourned as a result of the court's decision to suspend normal operations to combat the spread of COVID-19. His matter has since been rescheduled. It will take place approximately 22 months from the date of his arrest. This time period falls outside of the ceiling dictated by the Supreme Court of Canada in R. v. Jordan.

[3] On March 11, 2020, The World Health Organization declared a global pandemic. This declaration remains in force. On March 15, 2020, the Ontario Court of Justice suspended normal operations, it remained open only for "in-custody or urgent" matters. All other criminal matters were adjourned for 10 weeks by order of the court. This order continued to be amended to suspend trial dates until July 6, 2020.

[4] In a notice dated May 11, 2020 the Ontario Court of Justice outlined the processes that would be followed during the ongoing state of emergency. The notice directed that trials scheduled following July 6, 2020 should be expected to proceed, however, rescheduling of the cancelled matters would be done according to priority set out by the court following that date.

[5] On June 17, 2020, the Ontario Court of Justice issued a notice of a phased reopening of the courts with a target date of November 2020 for full resumption of trials and preliminary hearings.

[6] On August 6, 2020, a Zoom meeting was held with the Trial Coordinator in which Mr. Stack's trial was rescheduled to commence on December 7th for two weeks.

[7] The parties agree that the COVID-19 global pandemic is an exceptional circumstance which resulted in Mr. Stack's trial being cancelled by order of the Chief Justice of the Ontario Court of Justice. However, the parties disagree on how much delay can be attributed to this exceptional circumstance.

[8] The main issues to be determined in this case is how much of the delay can be attributed to the exceptional circumstance and whether the case took markedly longer.

[9] Jordan set the presumptive ceiling for delay at 18 months for trials in the Ontario Court of Justice. Trials that take place outside of 18 months are presumptively unreasonable and a stay will follow unless the Crown establishes exceptional circumstances. If the delay falls below those presumptive ceilings the onus is on the defence to establish the delay is unreasonable.

Procedural History

[10] I will begin my analysis by reviewing the procedural history in this matter. The following is a summary of the transcripts from Mr. Stack's court dates.

[11] February 6, 2019 was Mr. Stack's first court appearance after his arrest. The Crown indicated it may be seeking to revoke another bail that Mr. Stack was currently on in Guelph. The matter was adjourned so that Mr. Stack could apply for legal aid.

[12] On February 11th, 2019, issues about bail and obtaining legal representation are discussed.

[13] On February 12th, 2019, Mr. Stack requested Duty Counsel to try to contact his brother.

[14] On February 13th, 2019, he appeared again in bail court and was still attempting to contact his brother.

[15] On February 15th, 2019, sureties were present but not in a position to conduct a bail hearing.

[16] On February 20th, 2019, Duty Counsel advised that Mr. Stack did not have a release plan and that he wanted to know the resolution position.

[17] On February 28th, 2019, Mr. Stack advised he wished to represent himself and indicated that he wanted to know what the Crown's position was on a plea.

[18] On March 4th, 2019, Mr. Stack advised that he wanted to set a self-represented pre-trial but would wait until he received disclosure.

[19] On March 18th, 2019, some disclosure was available. Mr. Stack returned in-person on March 19th to receive that disclosure. Issues with reviewing the disclosure at Maplehurst Detention Centre and lost disclosure continued throughout the proceedings.

[20] On April 2nd, 2019 Mr. Stack made it clear to the court that he wanted to represent himself. Although the matter was set for a judicial pre-trial, the institution had not made his disclosure available to him.

[21] On April 23rd, 2019, a further judicial pre-trial was conducted, trial dates were set to begin on April 26, 2020, more than a year later, and 14 months and 22 days after Mr. Stack's arrest.

[22] On June 4th, 2019, Mr. Stack elected to have a trial in the Ontario Court of Justice.

[23] On June 27, 2019, Ms. Myers was appointed as amicus and earlier trial dates were offered for February 10, 2020. Those dates were not available to the assigned Crown, Mr. Henderson. On some subsequent appearances Mr. Stack refused to leave his cell to attend a video appearance.

[24] On August 9, 2019, Mr. Stack explained to the court that he did not appear for his video remand as the purpose for the court date was simply to ensure he was not transferred from Maplehurst to avoid further issues with him accessing his disclosure. Following this date there were several short appearances to ensure that Mr. Stack was having access to his disclosure.

[25] On December 6, 2019, Mr. Stack was brought to court to review his disclosure, and a discussion was had about Mr. Stack being moved to another jail as a result of an appearance for another charge in Barrie. The move from one institution to another meant, again, that he did not have access to his disclosure. Ms. Stevens reached out to the jail to ensure that Mr. Stack would be able to have access to his disclosure.

[26] On March 23, 2020, it was confirmed that the April trial dates would not go ahead because of the COVID-19 pandemic. The case was adjourned periodically to set new dates.

[27] On April 20, 2020, a judicial pre-trial was held to confirm the trial time estimate. Additional time was required to argue an 11(b) Charter application. No dates were secured as in-person trials were not yet being set.

[28] On June 29, 2020, there were no trial dates being set for those whose trials were adjourned, even for persons in custody.

[29] On July 2, 2020, the Ontario Court of Justice released a practice direction for the re-scheduling of trials and preliminary hearings. In-person trials and preliminary hearings were to begin again on July 6, 2020. Mr. Stack's case fell into the second level of priority.

[30] On August 6, 2020, Mr. Stack's trial was rescheduled to commence on December 7th, 2020 for two weeks.

[31] The time between the laying of the charges and trial will be a total of 671 days or 22 months and 3 days which is approximately 4 months over the presumptive ceiling.

Calculating Delay

[32] Net delay is calculated by taking the amount of total delay and subtracting defence delay. If the net delay exceeds the presumptive ceiling, the Crown has the onus of establishing the presence of exceptional circumstances to justify the delay. If the total delay falls below the presumptive ceiling upon deduction of exceptional circumstances, the delay is no longer presumptively unreasonable. It then is incumbent on the defence to establish that the delay is unreasonable by showing: (1) that it took meaningful and sustained efforts to expedite the proceeding; and (2) that the case took markedly longer than it reasonably should. Stays beneath the ceiling should be rare and only in the clearest of cases.

Defence Delay

[33] The first step in the calculation of the period of delay for the Jordan analysis is to identify and subtract any "defence delay" from the total to arrive at the net delay. The meaning of defence delay was set out in Jordan.

[34] There was no defence delay in this case. Mr. Stack was self-represented and did what he could to move the case forward. The net delay exceeds the presumptive ceiling.

Exceptional Circumstances

[35] The period of delay caused by any discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted.

[36] The Crown is required to show it was reasonably diligent in taking steps to address the problem, where possible; however, the steps may simply prove to be unsuccessful. It is not incumbent on the Crown to "exhaust every conceivable option" for attempting to remedy the event.

[37] Ms. Stevens relies on the exceptional circumstance of the pandemic to justify the reasonableness of the delay in this case. COVID-19 and the steps the Chief Justice took to keep people safe was not within the Crown's control. There was little Ms. Stevens could do to remedy the delays when the court shut down normal operations.

How Much of the Delay Can Be Attributed to the Pandemic or Exceptional Circumstance?

[38] Ms. Myers concedes that COVID-19 and the Chief Justice's decision to suspend trials is an exceptional circumstance that resulted in Mr. Stack's trial being adjourned. However, she argues that the period commencing from July 6, 2020 up until the new trial date, should not be categorized as an exceptional circumstance.

[39] Counsel submitted that more priority should have been given to Mr. Stack's case. She was of the view that the Trial Coordinator could have postponed trials that were scheduled to proceed from July 7, 2020 and on; trials that were cancelled because of the pandemic ought to have proceeded first. In addition, greater priority should have been given to accused person in custody whose trials exceeded 18 months.

[40] Ms. Stevens argued that given the enormous amount of cases that had to be rescheduled, to add this layer to the reorganization of the court cases as suggested by Ms. Myers would have been extremely difficult. The Chief's Office, after a great deal of consultation, decided to proceed on this basis. Steps to address the backlog included holding second judicial pre-trials and triaging cases a week in advance of the trial dates to see if resolutions could be had or to confirm that both parties were ready to proceed to trial.

[41] There was great uncertainty as to how the court would begin to hold trials during the pandemic. The courtrooms had to be equipped with plexiglass and procedures were put in place to keep people safe. The court instituted technology to reduce in-person hearings. There was much discussion about whether trials would be in-person or by video communications.

[42] When it was confirmed that the court would reopen on July 6, 2020 to conduct trials, there were also several administrative tasks that had to be undertaken which included subpoenaing witnesses and ensuring pre-trial applications were in place. The date of July 6 was not a date where it was contemplated that trial dates would be set for the multitude of cases that were adjourned during the pandemic crisis. Rather, decisions were being made as to how to best manage and prioritize the backlog. The Crown argued that the decision as to how best to proceed was a reasoned one which also considered people in custody.

[43] I agree with the Crown on this issue, the court and the Crown did everything they could in the circumstances to manage and prioritize the backlog of cases resulting from the pandemic.

[44] I am of the view that the entire time from when from when trials were suspended as a result of the pandemic, through to the rescheduled date for continuation of the matter, should be deducted from the total delay as an exceptional circumstance. A number of courts from different Provinces have come to the same conclusion. But for the pandemic, the court would not be looking for additional dates. It is entirely out of the control of the Crown to dictate how trials would be rescheduled in these unprecedented times.

[45] I have concluded that 7 months and 10 days are attributable to the pandemic and can properly be deducted as an exceptional circumstance. The net delay would then be 14 months and 20 days. The delay falls below the presumptive ceiling set out in R. v. Jordan. Given the delay is under the 18-month presumptive ceiling, the defence must show that it took meaningful and sustained efforts to expedite the proceedings, and that the case took markedly longer than it reasonable should.

Defence Initiative

[46] In considering the 'action or non-action' taken by the accused, the Supreme Court instructs trial judges to consider "what the defence could have done, and what it actually did, to get the case heard as quickly as possible". What is important is substance and not form.

[47] Mr. Stack was self-represented initially but later had the benefit of the assistance of Ms. Myers who was appointed by the case management judge as amicus. Both Mr. Stack and Ms. Myers, for the most part, took all appropriate steps to move the matter forward. However, once the first trial date was confirmed nothing was put on the record at any time about an 11(b) Charter concern. Ms. Myers began assisting Mr. Stack from June 27, 2019. In addition, there was no correspondence with the Crown's Office regarding delay concerns. The Supreme Court in Jordan has made it clear that all participants in the criminal justice system are expected to cooperate and take active steps towards the goal of achieving reasonably prompt justice.

Markedly Longer

[48] Ms. Myers argues that even deducting the period of time the courts were responding to COVID-19, that the trial took markedly longer than it should have, and the delay is substantial enough to warrant a stay.

[49] Ms. Myers submitted that the Crown did not do enough to try to take advantage of the February dates offered at one of the continuing judicial pre-trials. A call was made to the Trial Coordinator who advised that the assigned Crown was not available for the date offered. The court then confirmed the trial date. Ms. Stevens explained that the case required a number of pre-trial applications and a dedicated Crown to try the case for several consecutive days.

[50] Counsel also points to the fact that despite the trial being originally set for over a year from the set date there were no meaningful steps taken to move the case to an earlier date. Ms. Myers, however, acknowledged that she did not take any steps herself and Mr. Stack did not request that she do so. Mr. Stack advised the court that he believed he had no choice but to accept the dates and remain silent.

[51] This was not an ideal period of time for a matter to come to trial and it came close to a determination that it took markedly longer.

Conclusion

[52] The case was set for 10 days. It involves, I am told, applications for discreditable conduct, voluntariness of Mr. Stack's statement and the calling of expert evidence. It takes, of course, much longer to find 10 consecutive days of trial in this jurisdiction. While Mr. Stack is in custody on these charges, he is also serving a sentence on another matter.

[53] Given that the court was not scheduled to fully resume in-person hearings until November 2020, the December dates offered were, in the circumstances, early dates. The Trial Coordinator was dealing with a tremendous backlog, the trial was rescheduled just one month after the court commenced the task of rescheduling that backlog. But for the measure taken by our Chief Justice, this matter would have been heard 14 months and 20 days from the date of charge.

[54] While this is an extremely unfortunate time which has resulted in great delays for many accused persons awaiting trial, I am not satisfied that the defence has met their onus and I am, therefore, dismissing the application.

Released: November 23, 2020

Signed: Justice A. R. Mackay