Court Information
Date: December 22, 2020
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Xanh Truong
Before: Justice John North
Reasons for Judgment, released on December 22, 2020
Counsel:
- Katherine Stewart, counsel for the Crown
- Michael Engel, counsel for Xanh Truong
INTRODUCTION
[1] The Applicant was charged with impaired driving and refusing to provide a breath sample. He brought an application for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter has been infringed.
[2] For the following reasons, the application is dismissed.
FACTUAL BACKGROUND
[3] On May 20, 2018, the Applicant was arrested and charged with impaired driving and refusing to provide a breath sample. He was taken to the Old City Hall courthouse for a bail hearing.
[4] The Applicant's first court appearance after being released on bail was on June 15, 2018. On that date, an agent for the Applicant's counsel attended and filed a designation. Crown counsel provided initial disclosure to the agent. The agent requested that the matter return in three weeks to permit counsel "to review disclosure which has just been provided and… to conduct a Crown pre-trial." The case was adjourned to July 6, 2018.
[5] On July 2, 2018, the Applicant's counsel sent a letter to the Crown requesting some outstanding disclosure, including: any videos; 911 call recordings; police radio transmissions; the typed notes of one officer; a phone number that had been redacted from an officer's notes; and one missing page of an officer's notes.
[6] On July 6, 2018, an agent for the Applicant's counsel appeared in court and received a charge screening form from Crown counsel. The agent asked that the case return in three weeks "to review disclosure, conduct a Crown pre-trial." The agent mentioned that the Applicant's counsel had sent a letter to the Crown requesting additional disclosure. The case was adjourned to July 27, 2018.
[7] On July 27, 2018, an agent for the Applicant's counsel appeared in court and received some additional disclosure. The agent stated that counsel for the Applicant was waiting for "all police video, 911, and police radio calls, the unredacted phone number the officer called to reach counsel." The case was adjourned to August 17, 2018.
[8] On August 17, 2018, an agent for the Applicant's counsel appeared in court and received some additional disclosure, which included: a booking video, a breath test video and an in-car video. The agent stated that it appeared that there was still some outstanding disclosure, including "all police video, the 911 and police radio calls, the missing and possibly edited pages of Sergeant Campbell's notes, and the legible typed notes of the breath technician Andrici." Crown counsel responded by saying that that counsel for the Applicant should put the disclosure request in writing and send it to the assigned Crown. The agent asked that the case return in three weeks. The case was adjourned to September 7, 2018.
[9] On September 7, 2018, an agent for the Applicant's counsel appeared in court. Crown counsel provided the agent with a typed copy of an officer's notes. The agent said that there was still outstanding disclosure, which appeared to include "[a] booking video and holding cell video, and 911 and some radio communications." Crown counsel asked that the Applicant's lawyer send a particularized disclosure request letter to the assigned Crown. The justice of the peace stated, "there needs to be a Crown pre-trial if there is sufficient disclosure, please. That should be done. This matter is outstanding since May. It needs to get a Crown pre-trial in motion, please." The agent replied, "I'll inform counsel." The case was adjourned to September 28, 2018.
[10] On September 28, 2018, an agent for the Applicant's counsel told the court that "we're awaiting the Crown response to Mr. Engel's request for a pre-trial." Counsel for the Applicant sent the request to the Crown's office one day earlier. This was 20 days after the justice of the peace stated that Crown pre-trial should be conducted. The agent stated that "we're also seeking a balance of police video, cell footage both at TSV and 52 Division, 911, and police radio calls." Crown counsel advised that the Crown had sent the police three disclosure requests. The agent asked that the case return in three weeks. The case was adjourned to October 19, 2018.
[11] On October 19, 2018, an agent for the Applicant's counsel told the court that a Crown pre-trial was scheduled to be conducted on October 25, 2018. According to the written submissions filed by counsel for the Applicant, the agent mentioned that "substantial disclosure" was still outstanding.
[12] A Crown pre-trial was held on October 25, 2018.
[13] On November 2, 2018, an agent for the Applicant's counsel told the court that a judicial pre-trial had been set for December 4, 2018. The case was adjourned to December 4, 2018.
[14] On December 4, 2018, after the judicial pre-trial, the parties went to the trial coordinator's office and were offered the following dates for a three-day trial: June 3-5, 2019 (both the Crown and the defence were not available); June 19-21, 2019 (the defence was available but the Crown was not available); and June 25-27, 2019 (the Crown and the defence were available). The trial was set, on a "with or without counsel" basis, for June 25-27, 2019. Counsel for the Applicant stated that they "picked the earliest available dates, although I had some dates earlier and many dates otherwise available." The Applicant's counsel also told the court "there's outstanding disclosure I'm awaiting as well that I know my friend is working on." A second-stage judicial pre-trial was set for April 11, 2019. Counsel for the Applicant requested that the case return before that date. The case was adjourned to February 7, 2019.
[15] On February 7, 2019, an agent for the Applicant's counsel advised that counsel was now "fully retained." The agent asked about the status of the following outstanding disclosure: "the 911 and police radio calls, and a non-defective copy of the holding cell video." Crown counsel said that he would send the assigned Crown counsel a note about the outstanding disclosure. The agent stated that he was content that the matter return on the date previously scheduled to confirm trial readiness. The case was adjourned to April 11, 2019.
[16] On February 11, 2019, Crown counsel contacted the Applicant's counsel to advise that a new copy of the holding cell video was available to be picked up.
[17] On March 16, 2019, Crown counsel contacted the Applicant's counsel to advise that recordings of a 911 call and police radio communications were available to be picked up.
[18] On April 11, 2019, the parties attended court for a second-stage judicial pre-trial. Crown counsel brought an application for an adjournment of the trial scheduled to commence on June 25, 2019. Shortly before this court appearance, Crown counsel became aware that a police officer who was described as an essential witness would not be available during the scheduled trial dates as she was going to be out of the country on annual leave. While counsel for the Applicant did not consent, the Court allowed the adjournment application. The parties went to the trial coordinator's office and were offered the following dates for trial: July 25-31, 2019 (the defence was unavailable but the Crown was available); August 13-15, 2019 (the defence was available but the Crown was unavailable); August 28-30, 2019 (the defence was available but the Crown was unavailable); September 3-6, 2019 (the defence was available but the Crown was unavailable); and September 24-26, 2019 (both the Crown and the defence were available). The trial was set for September 24-26, 2019.
[19] The trial commenced on September 24, 2019. It proceeded as a blended Charter application and trial. The Court heard three days of evidence and submissions.
[20] After hearing submissions on September 26, 2019, I told counsel that I would be reserving my judgment. Prior to this point in the trial, counsel for the Applicant had not expressed a concern about delay. The total delay as of September 26, 2019 was 16 months and 6 days. I told counsel that, given my other judicial commitments together with the nature and number of the issues in this case, I may not be in a position to deliver my reasons prior to November 20, 2019 (when there would be 18 months of total delay). I advised both counsel that an appeal which involved the question of whether the time taken by a judge to arrive at a verdict should be included in the delay for the purpose of the Jordan presumptive ceilings was being argued that week in the Supreme Court of Canada. I asked counsel if delay might be raised as an issue if my decision was not released by November 20, 2019. The matter was adjourned to October 3, 2020 to allow the Applicant's counsel an opportunity to familiarize himself with the case that I had mentioned and to consider his position on the issue.
[21] On October 3, 2019, the Applicant's counsel indicated that he had reviewed the reasons of the Manitoba Court of Appeal in the case that I had referred to on September 26th. (R. v. K.G.K.) and stated that he "found the dissent in that court persuasive." Counsel for the Applicant expressed the view that I had "ample time within the Jordan ceiling" to render a decision and stated that the Applicant did not waive his right to be tried within a reasonable time. I advised the parties that I would make every reasonable effort to have my judgment ready by November 21, 2019, but I may not be in a position to deliver my judgment that day. I told counsel that I would contact them prior to November 21st. if it appeared that I would not be able to deliver my judgment that day. The case was adjourned to November 21, 2019.
[22] On November 18, 2019, counsel were advised by e-mail that my judgment would not be delivered on November 21st and that a new date would be set. Counsel for the Applicant was instructed that Mr. Truong would not be required to attend court on November 21, 2019.
[23] On November 21, 2019, I advised counsel that, notwithstanding my best efforts, I was not able to deliver my judgment that day. The matter was adjourned to December 19, 2019 for judgment.
[24] On December 12, 2019, counsel for the Applicant filed a s. 11(b) Notice of Application.
[25] On December 19, 2019, I delivered my judgment. I concluded that the Applicant's rights under ss. 7, 8 and 9 of the Charter had not been infringed. I found that the Applicant's rights under s. 10(b) had been infringed. I excluded evidence that the Crown relied upon in support of the refusing to provide a breath sample charge. However, I concluded that the admission of the evidence that the Crown relied upon in support of the impaired driving charge would not bring the administration of justice into disrepute. I held that there was no basis for a stay of proceedings under s. 24(1) of the Charter. I found the Applicant guilty of impaired driving and not guilty of refusing to provide a breath sample.
[26] On December 19, 2019, the Applicant's counsel requested that the case be adjourned to allow counsel to "gather the transcripts" and to return to set a date for a s. 11(b) hearing. Counsel for the Applicant agreed that the Applicant:
"… was waiving, for the purposes of bringing this application, the delay from this point forward, and that really what we're going to be litigating is the delay up to today's date, but not delay flowing from here out." [Emphasis added.]
[27] Crown counsel was prepared to proceed with a sentencing hearing on December 19, 2019, but did not oppose the Applicant's request. The case was adjourned to January 9, 2020.
[28] On January 9, 2020, an agent for the Applicant's counsel advised the Court that the transcripts were expected to be available by the end of the week. The matter was adjourned to January 23, 2020.
[29] On January 23, 2020, the Applicant's counsel attended and advised that some transcripts were still outstanding. The matter was adjourned and counsel for the Applicant expressly waived delay.
[30] On February 25, 2020, the Applicant's counsel advised the Court that that although the transcripts had been served and filed, it was the Applicant's request that the case be adjourned to await the decision of the Supreme Court of Canada in R. v. K.G.K. The case was adjourned to March 24, 2020 to set a date for the s. 11(b) hearing.
[31] On March 11, 2020, the World Health Organization declared that COVID-19 was a global pandemic.
[32] On March 15, 2020, as a result of the COVID-19 pandemic, the Ontario Court of Justice suspended normal operations. Non-urgent criminal cases which involved out-of-custody accused were to be presumptively adjourned for 10 weeks (from the date of the next scheduled court appearance).
[33] On March 20, 2020, the Supreme Court of Canada released R. v. K.G.K., 2020 SCC 7.
[34] On March 24, 2020, in accordance with the March 15, 2020 direction of the Court, the Applicant's case was adjourned for 10 weeks, to June 2, 2020.
[35] On May 4, 2020, the Ontario Court of Justice announced that no trials or preliminary hearings would be conducted until July 6, 2020, at the earliest. The notice stated that the Ontario Court of Justice is "working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants' ability to access the Court's services using remote means, such as by the electronic filings of court material, remote scheduling processes, and remote hearings."
[36] On May 11, 2020, a notice issued by the Ontario Court of Justice stated that "the Court is not currently setting trial or preliminary inquiry dates because of continued uncertainty as to when full operations will resume and the need to prioritize within the Court's caseload."
[37] On June 2, 2020, the Applicant's matter was adjourned for another ten weeks, to August 11, 2020.
[38] On June 17, 2020, the Ontario Court of Justice announced a phased re-opening of courthouses commencing July 6, 2020. The target date for a full resumption of trials and preliminary inquiries was November, 2020. The notice stated that the Court would:
"…begin rescheduling criminal trials and preliminary inquiries that were scheduled to be heard between March 16, 2020 and July 3, 2020 but adjourned due to the COVID-19 pandemic, later this month. The Court will provide further details about the procedure for setting trial and preliminary inquiry dates shortly."
[39] On June 22, 2020, Crown counsel contacted counsel for the Applicant to determine: (i) whether the Applicant still intended to pursue a s. 11(b) application; and (ii) if the Applicant would agree to the s. 11(b) hearing being conducted remotely.
[40] On June 23, 2020, counsel for the Applicant responded, in writing, to Crown counsel's questions from the previous day. Counsel for the Applicant stated that the Applicant intended to pursue the s. 11(b) application and that he would seek instructions from the Applicant about a remote hearing.
[41] On July 2, 2020, the Ontario Court of Justice announced that, "on July 6, 2020, the Court will resume setting criminal trial and preliminary inquiry dates, including rescheduling trials and preliminary inquiries that were adjourned due to the COVID-19 pandemic." Rescheduling trials and preliminary inquiry continuations involving out-of-custody accused was set to commence on August 5, 2020. The Court explained that:
"…as a result of the large number of cases that were adjourned and needed to be rescheduled due to COVID-19, the need to prioritize within the Court's caseload, and in order to have a fair and orderly scheduling process, the Court has established a priority order and timeline for the setting of trial and preliminary inquiry dates."
[42] On July 14, 2020, a judicial pre-trial was held in this matter. It was agreed that the s. 11(b) hearing would be conducted remotely. I set a timetable for the filing of written materials.
[43] On August 5, 2020, both counsel contacted the trial coordinator's office to set a date for the s. 11(b) hearing. A two-hour s. 11(b) hearing was scheduled for September 3, 2020.
[44] On September 2, 2020, I contacted both counsel by e-mail to determine if I had received all of the materials that had been filed on the s. 11(b) application.
[45] On the morning of September 3, 2020, I received an e-mail from counsel for the Applicant. He wrote, "to assist you with my oral submissions this morning, please find attached an outline of my argument…". This outline raised issues that counsel for the Applicant had not previously mentioned (including at the judicial pre-trial that was held on July 14, 2020).
[46] When the hearing began, Crown counsel stated as follows:
"…it was entirely at the Crown's suggestion that this hearing move forward. I had not heard anything from Mr. Engel about this case since the pandemic struck. It was at the Crown's suggestion that we hold a judicial pre-trial with Your Honour to iron out the logistics of holding such a hearing, and at that judicial pre-trial we set out filing deadlines, including deadlines that apply to Mr. Engel, namely that I would file my materials two weeks in advance of the hearing and Mr. Engel would file any additional materials one week in advance of the hearing. I note that not a word was said about COVID delay in our judicial pre-trial. Mr. Engel indicated his additional materials might relate to the Supreme Court on deliberation delay."
[47] Crown counsel also noted that, prior to that morning, the Applicant's counsel had not told her that it was the Applicant's position that the s. 11(b) waiver ended in March and that the Applicant intended to raise COVID-19 delay issues. In summarizing her position, Crown counsel stated as follows:
"…as the Crown, I am incredibly frustrated at this style of ambush litigation. I have not had any opportunity to engage in any substantive research on the novel 11(b) issue that Mr. Engel intends to raise relating to COVID, and I am incredibly confused because what has unfolded leading up to this hearing appears inconsistent with counsel's stated desire to bring this matter to end [sic], because he is leaving the Crown in the position where I either have to ask for this hearing to be adjourned in order to properly respond, or I have to proceed with this hearing and indulge in this ambush litigation.
Lastly, in terms of my comments, Your Honour, I would note as well that if Mr. Engel intends to argue delay, then his materials have not been perfected. There are no transcripts of the proceedings since Your Honour's judgment, and in the absence of those transcripts, and if we are to proceed with this hearing today, my position is going to be that Your Honour can infer from the absence of those transcripts that Mr. Engel had not once voiced on the record any concern about the COVID delay over the course of the appearances since COVID."
[48] Counsel for the Applicant explained that, because of a personal situation, he had forgotten that he was required to provide the Crown with his additional written materials at least a week prior to the hearing date. No explanation was offered as to why the Applicant's counsel failed to mention at the judicial pre-trial on July 14, 2020 that he would be raising new and novel issues at the s. 11(b) hearing. Counsel for the Applicant stated that it was not his intention to ambush the Crown. He agreed to file a factum setting out his position on how the Court should characterize the delay that occurred after March 24, 2020. The s. 11(b) hearing was adjourned to November 6, 2020. Counsel for the Applicant agreed that the time between September 3, 2020 and November 6, 2020 was defence delay. I set new filing deadlines for both counsel.
[49] On November 6, 2020, the Court heard the s. 11(b) application. The matter was adjourned to December 22, 2020 for judgment.
JORDAN FRAMEWORK
[50] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada established a new framework to be applied where a breach of s. 11(b) is alleged, which included a presumptive ceiling of 18-months for cases tried in a provincial court.
[51] The Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras. 34-41, summarized the steps to be taken in applying the Jordan framework:
a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
b) Subtract defence delay from the total delay, which results in the "net delay".
c) Compare the net delay to the presumptive ceiling.
d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
e) Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached.
f) 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.
g) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[52] The presumptive ceiling is not an aspirational target: Jordan, supra, at para. 56. The "public should expect that most cases can and should be resolved before reaching the ceiling": ibid., at para. 56.
JORDAN ANALYSIS
Total Delay
[53] The delay from the date the Applicant was charged to today's date is 947 days or 31.13 months. While the 46-day period between the completion of oral submissions made at the s. 11(b) hearing and the release of this judgment was not addressed by either counsel, I have included this period in the calculation of the total delay.
[54] As I will explain later in these reasons, the verdict deliberation time from September 26, 2019 to December 19, 2019 (84 days or 2.761 months) must be deducted to determine the total delay for the purposes of the Jordan presumptive ceiling.
[55] The total delay is 863 days or 28.37 months.
Defence Delay
[56] Counsel for the Applicant conceded that the Applicant is responsible for the delay from December 19, 2019 to March 24, 2020 (96 days) and September 3, 2020 to November 6, 2020 (64 days). In other words, the Applicant takes the position that he was responsible for 160 days of the delay.
[57] I have concluded that there were three additional periods of defence delay.
[58] First, I would characterize the 20 days from September 7, 2018 to September 27, 2018 as defence delay. By August 17, 2018, the Applicant had received substantial disclosure, which included the booking video, the breath test video and the in-car camera video. The Applicant had not received recordings of a 911 call and police radio communications, a cell video and a typed version of an officer's notes. In my view, the Applicant had sufficient disclosure to set a Crown pre-trial. On September 7, 2018 a justice of the peace told the parties that a Crown pre-trial should be conducted. There was no reason for the Applicant's counsel to wait another 20 days before attempting to schedule a Crown pre-trial.
[59] The fact that the Crown has not provided full and complete disclosure, "does not justify the defence in refusing to take preliminary steps such as attending pre-trials and setting dates for trial or for a preliminary inquiry": R. v. Richards, 2010 ONSC 6202, at para. 22.
[60] In the end, the Applicant was able to conduct a Crown pre-trial, a judicial pre-trial and set a date for trial - with an accurate estimate of the time required for the Charter application and trial - without first obtaining the disclosure that was outstanding on August 17th.
[61] To be clear, it took the Crown and the police too long to provide the Applicant with the disclosure that was outstanding on August 17, 2018. However, while the outstanding disclosure was not insignificant, a meaningful Crown pre-trial could have been conducted without the outstanding disclosure: R. v. Carbone, 2020 ONCA 394, at para. 53; R. v. Hollowell, 2019 ONCJ 636, at para. 10. Disclosure issues are often the subject of discussions at Crown pre-trials. Pre-trials can be a highly effective way of resolving disclosure issues: R. v. Chowdhury, 2019 ONCJ 600, at paras. 16-17; R. v. Gandhi, 2016 ONSC 5612, at paras. 33-36.
[62] Second, I would characterize the 29 days between August 5, 2020 and September 3, 2020 as defence delay as a result of the waiver made by the Applicant's counsel on December 19, 2019. If the COVID-19 pandemic had not occurred, the Applicant's case would have returned to Court on March 24, 2020 and a date for the s. 11(b) hearing likely would have been set that day. However, the application would not have been argued on March 24th. On December 19, 2019, the Applicant's counsel waived the delay from "this point forward". In my view, that wavier applies (at the very least) to the delay between the date when the hearing was set and the first scheduled hearing date.
[63] Alternatively, this period could also be reasonably characterized as delay that occurred as a result of a discrete exceptional circumstance. I will address the impact of the COVID-19 pandemic on court operations as a discrete exceptional circumstance later in these reasons.
[64] Finally, this period could also be characterized as defence caused delay. It was as a result of requests made by the Applicant's counsel that the case was adjourned from December 19, 2019 to March 24, 2020. If the Applicant had been prepared to set a date for a s. 11(b) hearing on December 19, 2019 (or prior to that date), it is reasonable to conclude that the hearing would have been completed before March 24, 2020.
[65] Third, I would characterize the 46 days between November 6, 2020 to December 22, 2020 as delay that was waived by the defence on December 19, 2019.
[66] Alternatively, even if the waiver did not cover this period, given the nature and timing of the s. 11(b) application, it is my view that my decision on the s. 11(b) application is a final ruling, not an interlocutory ruling. Therefore, this 46-day period could be characterized as verdict deliberation time that should not be included when calculating the total delay. The Applicant's counsel did not suggest that the verdict deliberation time on the s. 11(b) application was markedly longer than it reasonably should have been. I will address the issue of verdict deliberation time in more detail later in these reasons.
Net Delay
[67] The total delay is 863 days or 28.37 months. The defence delay is 255 days or 8.38 months. Therefore, the net delay is 608 days or 19.99 months. As this exceeds the 18-month ceiling set out in Jordan, the delay is presumptively unreasonable.
Exceptional Circumstances
[68] The Crown may rebut the presumption by showing that the delay is reasonable because of the presence of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in the sense that: 1) they are reasonably unforeseen or reasonably unavoidable; and 2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, supra, at para. 69.
[69] In this case, the Crown argues that the delay between March 24, 2020 to August 5, 2020 (at the very least) should be characterized as a discrete exceptional event as a result of the impact of COVID-19 on court operations.
[70] Counsel for the Applicant acknowledges that COVID-19 is a discrete exceptional circumstance. However, counsel argued that some of the delay between March 24, 2020 and August 5, 2020 was reasonably avoidable. The Applicant's counsel asserted that "this was a lack of funding issue in terms of the far less than prompt response to the pandemic." The Applicant's counsel noted that supermarkets and banks re-opened "in short order" after installing plexiglass partitions.
[71] Courts have consistently held that the COVID-19 pandemic is a discrete exceptional circumstance: R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Loblaws, 2020 ABPC 250, at para. 66; R. v. Drummond, 2020 ONSC 5495, at paras. 76-80; R. v. Ali Ismail, 2020 BCPC 144, at paras. 135-142; R. v. Stack, 2020 ONCJ 544, at para. 7; R. v. Folster, [2020] M.J. No. 187, at para. 28; R. v. G.R., 2020 ONCJ 578, at para. 3; R. v. Harker, 2020 ABQB 603, at para. 20; R. v. KGY, 2020 ABPC 171, at para. 40; R. v. Cathcart, 2020 SKQB 18, at para. 18.
[72] In Simmons, supra, at para. 60, Nakatsuru J. concluded that no reasonable person could contend that the COVID-19 public health crisis was not discrete exceptional event. In Harker, supra, at para. 20, Kubik J. stated that, "…if a global pandemic is not a discrete and exceptional circumstance, it would be difficult to conceive of anything that would be." I agree.
[73] The real issue in this case is how much of the delay should be attributed to this discrete exceptional event. The Applicant's counsel argued that some of the delay ("three or four weeks") from March 24, 2020 to August 5, 2020 was not the result of a discrete exceptional event because "things could have and should have been done quicker." I do not accept this argument.
[74] As a result of the COVID-19 pandemic, courts across Canada were required to respond to what the Chief Judge of the Provincial Court of British Columbia described as "challenges that have no precedent in our lifetimes": Ali Ismail, supra, at para. 147.
[75] The COVID-19 pandemic has had an impact on every case that was before the Ontario Court of Justice during this period. Almost every trial and preliminary inquiry had to be rescheduled. At the same time, based on the expert advice of public health professionals, a wide range of health and safety measures were implemented at every courthouse in Ontario. This was an enormous undertaking. A number of factors had to be taken into account when decisions were made regarding court operations, including access to justice, public health and court resources. These decisions were informed by the input of stakeholders in the criminal justice system.
[76] In this case, following the judicial pre-trial on July 14, 2020, the parties were required to wait about three weeks before setting a date for the s. 11(b) hearing because trial coordinators had not yet started to reschedule matters involving out of custody accused that had been adjourned as a result of the COVID-19 pandemic. Counsel for the Applicant argued that the Applicant's case should have been prioritized over other cases and, therefore, this delay was reasonably avoidable. I do not accept this argument.
[77] As Doherty J.A. stated in R. v. Allen (1996), "no case is an island to be treated as if it were the only case with a legitimate demand on court resources." As a result of the COVID-19 pandemic, courts were faced with a backlog of cases. Decisions had to be made about which cases should be prioritized. In my view, the decision to prioritize matters involving in-custody accused was entirely reasonable.
[78] In Stack, supra, at para. 39, the defence argued that "more priority should have been given to [his] case" after the Ontario Court of Justice began to reschedule matters that had been adjourned because of the COVID-19 pandemic. The accused was in custody on the charges that were before the court. I agree with Mackay J.'s conclusion in Stack, supra, at paras. 42-43, that the decisions that were made about how to best manage and prioritize the backlog were reasonable.
[79] In Simmons, supra, at paras. 67-68, Nakatsuru J. did not accept the defence argument that the delay attributable to the COVID-19 pandemic should end when the Superior Court began to schedule jury trials. Instead, Nakatsuru J. held that the entire period from the original trial date that had to be adjourned because of the pandemic to the new trial date should be attributed to the discrete exceptional event of COVID-19 – the length of this delay in that case was 9 months and 26 days. In support of that conclusion, at paras. 68-71, Nakatsuru J. relied on a number of factors, including:
• Most trial courts have "deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended." [para. 69.]
• The impact of the pandemic on the criminal justice system "is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts on how we do things, and, on the people who do them." This has "a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensured. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime." [para. 70.]
• The public health crisis did not end the moment that courts started to conduct jury trials. Trials take place "in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and court can reasonably do in mitigating the delay." [para. 72.]
• The impact of the COVID-19 pandemic on the judicial system is not over – "when it comes to assessing COVID-19's impact on the criminal justice system, this discrete event continues." [para. 73.]
[80] In G.R., supra, Doorly J. concluded, at paras. 59-67, that the nine months between the first scheduled trial and the anticipated end of the second scheduled trial should be deducted as a discrete exceptional event caused by the COVID-19 pandemic.
[81] With respect, the suggestion by the Applicant's counsel that any of the delay in this case was reasonably avoidable if more resources had been allocated to "modernize" courts is speculative and fails to give sufficient weight to the complexity of the unprecedented challenges created by the COVID-19 pandemic. Once again, as Nakatsuru J. concluded in Simmons, supra, at para. 70, "a lack of resources was not the cause. Rather, COVID-19 was." See also G.R., supra, at paras. 64-65. I agree with Crown counsel's position, as set out in her written submissions, that "the Applicant has advanced no evidentiary basis to support its position that a different re-opening schedule could have or should have been followed."
[82] I am satisfied that Crown counsel took reasonable steps to move this case forward after normal operations of the Court had been suspended. Five days after the Ontario Court of Justice announced that there would soon be a phased re-opening of courthouses, Crown counsel contacted counsel for the Applicant to determine if the s 11(b) application would be brought and, if so, if it could be conducted remotely. It was at the suggestion of Crown counsel that a judicial pre-trial was conducted in mid-July to iron out the logistics of the s. 11(b) hearing. On August 5, 2020, which was the first day that trial coordinators began to set dates for out of custody trial matters that had been adjourned because of COVID-19, a date for the s. 11(b) hearing was set. The Court was able to schedule the first s. 11(b) hearing date less than one month later.
[83] In my view, at the very least, the 134 days or 4.41 months of delay between March 24, 2020 and August 5, 2020 should be characterized as a discrete exceptional circumstance.
Remaining Delay
[84] To summarize, the total delay is 863 days or 28.37 months.
[85] In calculating the net delay for the purpose of the Jordan ceiling, I have deducted 255 days or 8.38 months of defence delay. The net delay is 608 days or 19.99 months.
[86] I have deducted 134 days or 4.41 months for the discrete exceptional event caused by the COVID-19 pandemic on court operations.
[87] The remaining delay is 474 days or 15.58 months.
The Applicant Has Not Established that the Delay is Unreasonable
[88] As the remaining delay falls below the 18-month presumptive ceiling, the onus is on the Applicant to establish that the delay is unreasonable. To discharge that onus, the Applicant must show that: (i) he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have: Jordan, supra, at para. 82. In Jordan, supra, at para. 83, Moldaver J. stated that, "[w]e expect stays beneath the ceiling to be granted only in clear cases."
[89] In Jordan, supra, at para. 85, Moldaver J. concluded that to satisfy that the defence took meaningful and sustained efforts to expedite the proceedings, "it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier date." The defence must demonstrate that "it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem and conducted all applications (including the s. 11(b) application) reasonably and expeditiously": Jordan, supra, at para. 86.
[90] I am not satisfied that the Applicant has established that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings. In arriving at this conclusion, I have taken into account the fact that the Applicant did not consent to the Crown's adjournment application on April 11, 2019. I have also considered the following:
• The Applicant's case was before the Court on eight occasions prior to a trial date being set. There was no concern expressed by the defence on the record about delay. During this period, the Applicant's counsel sent one letter requesting disclosure.
• On September 7, 2018, the justice of the peace told an agent for the Applicant's counsel that, as the matter has been before the Court for almost four months, a Crown pre-trial should be held. After receiving that direction, Counsel for the Applicant waited 20 days before contacting the Crown to schedule a Crown pre-trial (one day before the next scheduled court appearance).
• Counsel for the Applicant did not put the Crown on notice, in a meaningful way, that delay was becoming an issue until after the end of the evidence and submissions on the Charter application and the trial proper. The Applicant filed the s. 11(b) application nine days before the Court was scheduled to deliver its judgment.
• The Applicant did not order the transcripts that were required for the s. 11(b) application until after the Applicant was found guilty.
• The Applicant's counsel did not, until the morning of the first scheduled s. 11(b) hearing, advise Crown counsel that he would be raising new and potentially important issues. These issues were not mentioned at the judicial pre-trial. Counsel for the Applicant also failed to comply with the filing deadline set by the Court for the first scheduled s. 11(b) hearing. This necessitated an adjournment of the s. 11(b) hearing.
[91] When determining whether a case took markedly longer than it reasonably should have, a trial judge must, "step back from the minutiae and adopt a bird's eye view of the case": Jordan, supra, at para. 91. This determination "is a question of fact falling well within the expertise of the trial judge": ibid.
[92] In this case, Crown counsel took reasonable steps to expedite the proceedings, including reaching out to the Applicant's counsel in June, 2020 and suggesting that a judicial pre-trial be held to "iron out the logistics" of the s. 11(b) hearing. Further, as soon as Crown counsel was made aware that an essential witness would not be available to attend the first trial date she advised the Applicant's counsel and brought an adjournment application.
[93] In assessing whether delay is markedly excessive in a case where the first trial date was adjourned, "a good yardstick of the reasonable time requirements of [the] case is the delay to the first trial date": R. v. Ameerullah, 2019 ONSC 4537, at para. 54; R. v. Belle, 2018 ONSC 7728, at para. 8. In this case, the total delay to the first trial date was 13 months. The adjournment of the first trial date added approximately three months to the delay. In my view, by this measure, this case did not take "markedly longer" than it reasonably should have.
[94] In my view, the time that this case has taken did not markedly exceed the reasonable time requirements for a three-day trial in this jurisdiction.
Verdict Deliberation Time
[95] In K.G.K., supra, the Supreme Court addressed the issue of whether verdict deliberation time is included in the Jordan presumptive ceilings.
[96] On behalf of the majority, Moldaver J. concluded that while the right to be tried within a reasonable time extends beyond the end of the evidence and arguments at trial, the Jordan ceilings do not apply to verdict deliberation time.
[97] Moldaver J. held that a different test is required to determine whether an accused person's right to a trial within a reasonable time has been infringed on account of verdict deliberation time. Where an accused asserts a violation of s. 11(b) based on a trial judge's verdict deliberation time the burden is on the accused to show that the deliberations took "markedly longer than they reasonably should have in all of the circumstances": K.G.K., supra, at para. 40. [Emphasis added.]
[98] This standard is a "high bar": ibid., at para. 65. This is "because of the 'considerable weight' that the presumption of judicial integrity carries": ibid., at para. 65. The presumption of judicial integrity "operates in this context to create a presumption that the trial judge took no longer than reasonably necessary to arrive at the verdict": ibid., at para. 56.
[99] Moldaver J. concluded, at para. 57, that, "trial judges are in the best position to assess how much time is needed in all of the circumstances of the case." Trial judges "should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations – both of which animate s. 11(b) itself – as well as the practical considerations that constrain the amount of time that they can spend on a particular case": ibid., at para. 57.
[100] In determining whether deliberations took markedly longer than they reasonably should have, a court must consider "all of the circumstances", including the following objective factors: the length of the deliberation time; how close to the relevant Jordan ceiling the case was before reserving judgment; the complexity of the case; communications from the court or judge to the parties; comparing the length of time taken with the time that a case of similar nature in similar circumstances would typically take to be decided: ibid., at paras. 67-73.
[101] Moldaver J. stated that stays for a violation of s. 11(b) based on verdict deliberation time are "likely to be 'rare' and limited to 'clear cases'": ibid., at para. 65.
[102] In this case, counsel for the Applicant argued that the judgment should have been released within two months after the end of the evidence and argument at trial. The Applicant's counsel took the position that because the decision was released 23 days after that two-month period, the Court should "add another month to the overall total of the delay." The approach advanced by the Applicant was rejected in K.G.K. and R. v. McNeill-Crawford, 2020 ONCA 504, at paras. 20-22.
[103] This case was not a "particularly complex case" as that term is used in Jordan. However, it was not at the other end of the complexity spectrum. During this three-day trial, seven witnesses were called to give evidence. The trial transcripts were over 400 pages long. There were credibility issues. The arguments on the Charter application and the closing submissions on the trial proper took close to a full day to complete. The Charter application involved, as the Applicant's counsel noted during his submissions, "a variety of constitutional questions", including alleged violations of the Applicant's rights under ss. 7, 8, 9 and 10(b). On the Charter application, counsel for the Applicant argued that:
• The Applicant's right against self-incrimination was violated as "he spoke to the investigating officers under the honest and reasonable belief that he was legally compelled to do so, and therefore, he was entitled to immunity for many incriminatory statements used against him in this prosecution." (s. 7)
• The police lacked reasonable and probable grounds to believe that the Applicant had been operating a motor vehicle while impaired. (s. 8)
• The Applicant's rights under s. 9 were violated because the police, contrary to s. 498 of the Criminal Code, failed to release the Applicant as soon as practicable.
• The Applicant's rights under s. 10(b) were violated because the police were not reasonably diligent in their efforts to contact counsel of choice.
• The Applicant's rights under s. 10(b) were violated because the police did not advise the Applicant that, if his lawyer could not be reached, he could attempt to contact another lawyer (other than duty counsel).
• Based on the alleged Charter breaches, individually or cumulatively, the impugned evidence should be excluded under s. 24(2).
• The Court should enter a stay of proceedings under s. 24(1).
[104] On September 26, 2019, I was aware that the total delay (as of that date) was 16 months and 6 days. I stated that I would make every reasonable effort to deliver the judgment by November 21, 2019. That is what I did. Despite my best efforts, as a result of other judicial obligations (which included other outstanding reserve judgments) and the number and nature of issues in this case, I was unable to deliver the reasons by November 21, 2019.
[105] It took 84 days to prepare the reasons for judgment. In considering whether this was markedly longer than was reasonable in the circumstances, I reviewed a number of impaired driving decisions from the Ontario Court of Justice in which accused persons argued: a) that there had been a s. 9 violation (based on an "overhold" argument); and b) that their s. 10(b) rights had been violated. These decisions are summarized in Appendix A. I note that the s. 7 statutory compulsion argument made by the Applicant in this case was not advanced in any of the cases that I considered. Based on the cases that I reviewed, it does not appear that 84 days for verdict deliberations in a case of this nature is unusual.
[106] In my view, given all of the circumstances, the Applicant has failed to establish that the deliberations took markedly longer than they reasonably should have.
CONCLUSION
[107] After the defence delay and delay caused by the discrete exceptional circumstance are subtracted from the total delay, the remaining delay is 474 days or 15.58 months. This is below the 18-month presumptive ceiling. The Applicant has not shown that he took meaningful and sustained steps to expedite the proceedings. I am also not satisfied that this case took markedly longer than it should have. The Applicant has not met his onus to demonstrate that the delay was unreasonable.
[108] Finally, while not advanced by either counsel, an argument could be made that the delay following the release of my judgment on December 19, 2019 should be characterized as post-verdict delay. In R. v. Charley, 2019 ONCA 726, at paras. 50-58, the Court held that the presumptive ceilings in Jordan do not apply to post-verdict delay. In Charley, supra, at para. 87, the Court set a five-month presumptive ceiling for post-verdict delay. Given the defence delay after December 19, 2019 and the discrete exceptional circumstance caused by the COVID-19 pandemic, I am satisfied that the Applicant has not established that his right to a trial within a reasonable time has been infringed as a result of post-verdict delay.
[109] The application is dismissed.
NORTH J.
NOTE: As stated in court on the record, in the event of discrepancies between the oral and written versions of these reasons, it is the written reasons that are to be relied upon.
APPENDIX A
Verdict Deliberation Time in Impaired Driving Cases
| Case | Trial Length | Charter Issues | Days to Verdict |
|---|---|---|---|
| R. v. Szczerba, 2018 ONCJ 897 | Two-day trial | Alleged violations of ss. 8, 9 and 10(b) | 40 days |
| R. v. Rampersaud, 2018 ONCJ 697 | Two-day trial | Alleged violations of ss. 8, 9 and 10(b) | 92 days |
| R. v. Eustache, 2018 ONCJ 606 | One-day trial | Alleged violations of ss. 9 and 10(b) | 59 days |
| R. v. Tessier, 2018 ONCJ 169 | Four-day trial | Alleged violations of ss. 7, 9, 10(a) and 10(b) | 118 days |
| R. v. Acton, 2018 ONCJ 99 | Two-day trial | Alleged violations of ss. 9 and 10(b) | 258 days |
| R. v. Turcotte, 2017 ONCJ 716 | One-day trial | Alleged violations of ss. 9 and 10(b) | 148 days |
| R. v. Diclemente, 2017 ONCJ 550 | Two-day trial | Alleged violations of s. 9 and 10(b) | 84 days |
| R. v. Rossi, 2017 ONCJ 443 | Three-day trial | Alleged violations of ss. 9 and 10(b) | 15 days* |
| R. v. Suyat-Pavalaraj, 2017 ONCJ 657 | Four-day trial | Alleged violations of ss. 9 and 10(b) | 105 days |
| R. v. Xiao, 2017 ONCJ 154 | Three-day trial | Alleged violations of ss. 8, 9, 10(a) and 10(b) | 0 days** |
| R. v. Dallaire, 2017 ONCJ | One-day trial | Alleged violations of ss. 7, 8, 9, 10(a) and 10(b) | 51 days |
| R. v. Perinpanathan, 2017 ONCJ 36 | Two-day trial | Alleged violations of ss. 7, 8, 9 and 10(a) | 107 days |
*Note: The trial was conducted on non-consecutive days.
**Note: The trial was conducted on non-consecutive days and there was a 95 day gap between the second and third day of the trial.
