ONTARIO COURT OF JUSTICE COURT FILE No.: Central East – Newmarket 4911-998-20-08458-00 DATE: 2022/08/26
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
PETRO KOROVCHENKO
Before: Justice Marcella Henschel
RULING ON SECTION 11(B) CHARTER APPLICATION
Heard on: July 11 and 15, 2022 Reasons for Judgment released on: August 26, 2022
Counsel: Erin Thomas, counsel for the Crown Al Pazuki, counsel for the defendant Petro Korovchenko
HENSCHEL J.:
A. Introduction and Overview
[1] The Applicant, Mr. Korovchenko, is charged with one count of impaired driving and one count of “80 plus”. The offences are alleged to have occurred on August 19, 2020, more than two years before the trial dates of September 8 and 9, 2022. Mr. Korovchenko submits that his right to be tried within a reasonable time under s. 11(b) of the Charter has been violated. He seeks a stay of proceedings under s. 24(1) of the Charter.
[2] On July 15, 2022, I found that there was a violation of the Applicant’s s. 11(b) rights and granted a stay of proceedings with reasons to follow. These are my reasons.
[3] The Applicant and Respondent agree that the total delay between August 19, 2020, the day the information was sworn, and September 9, 2022, the anticipated end date of the trial, is 751 days, or 24 months and 21 days.
[4] The Applicant submits there are no periods of defence delay or exceptional circumstances that justify the delay. As a result, the Applicant submits that no period of delay should be subtracted from the total delay in determining the “remaining delay”.
[5] The Applicant submits that much of the delay occurred because the Crown failed to fulfill its disclosure obligations in a timely manner and that the remainder of the delay was systemic delay. The Applicant says that the remaining delay is 24 months and 21 days which exceeds the presumptive ceiling beyond which delay is presumptively unreasonable and, as a result, in accordance with R. v. Jordan, 2016 SCC 27[^1], a stay of proceedings should be granted.
[6] The Respondent submits there was both defence delay and exceptional circumstances that must be deducted from the total delay. The Respondent submits the Applicant should have set a trial date despite the outstanding disclosure and caused delay by failing to do so. As a result, the time period between February 10, 2021, and August 11, 2021, 210 days, should be subtracted as defence delay.
[7] The Respondent further submits the pandemic was an exceptional circumstance that caused delay. The respondent submits that a period of 4 months, 122 days, should be deducted to account for the discrete event of the Covid-19 pandemic.
[8] The Respondent argues that after deductions for defence delay and exceptional circumstances the remaining delay is 13 months and 23 days (419 days), a period that is below the presumptive ceiling and because the Applicant did not take meaningful steps that demonstrated a sustained effort to move the matter forward and the case did not take markedly longer than it should have, the application for a stay of proceedings should be dismissed.
[9] I have concluded that the period between February 10, 2021, and August 11, 2021, was not defence delay and that the “net delay”, the period of total delay minus defence delay, is 751 days.
[10] In respect of exceptional circumstances, I have concluded that the pandemic and its impact on the criminal justice system is clearly an exceptional circumstance and that a period of three months should be deducted from the total delay as a discrete event.
[11] After subtracting three months from the total delay, the remaining delay is 21 months and 21 days, a period that well exceeds the presumptive ceiling. The case is not complex. The time the case has taken to come to trial cannot be justified. Consequently, I am satisfied that the Applicant’s rights under s. 11(b) of the Charter have been violated and that a stay of proceedings under s. 24(1) of the Charter must be imposed.
B. Procedural History
[12] The Applicant was arrested for impaired driving and “80 plus” on August 19, 2020. The information was sworn on the day of the Applicant’s arrest. He was held for a show cause hearing and released the same day with a first appearance date of October 28, 2020.
[13] The Applicant retained counsel, prior to his first appearance. On September 28, 2020, counsel sent an initial disclosure request to the Crown. The detailed disclosure request included a specific request for all station videos, including the booking video, cell video, and breath room video.
[14] Counsel appeared for the Applicant at his first out-of-custody court appearance on October 28, 2020. Counsel confirmed that he was retained. Although an initial disclosure request was made one month in advance of the first appearance; the Crown disclosure was not ready by the first appearance. As a result, defence counsel requested the matter to be adjourned to December 2, 2020. The Crown requested counsel to contact the assigned Crown (not Ms. Thomas) for a counsel pre-trial once disclosure was received. On October 28, 2020, counsel sent a second disclosure request to the Crown’s office by fax.
[15] On November 10, 2020, the assigned Crown contacted defence counsel by email. He requested that defence counsel let him know if he required any further disclosure. He provided a trial time estimate, requested that defence counsel advise him of any admissions, and provided a Crown position on resolution. The assigned Crown initially proposed a non-custodial disposition if the Applicant entered a guilty plea prior to a trial being set, with the caveat that the plea position was dependent on the Crown confirming no injuries were caused by the accident. The Crown advised that he had requested the police to confirm whether the occupants of the other vehicle suffered any injuries.
[16] Defence counsel did not respond to the assigned Crown’s email. However, on November 18, 2020, defence counsel faxed a third request for initial disclosure to the Crown’s office, indicating that it was a follow-up letter to previous correspondence.
[17] On December 2, 2020, 3.5 months after the offence, defence counsel appeared in court and advised that he was waiting for all disclosure. He requested the matter be adjourned to December 30, 2020, to receive disclosure.
[18] During submissions Ms. Thomas advised that initial disclosure was provided to the Applicant on December 2, 2020.
[19] It is evident that counsel reviewed disclosure in a timely manner. On December 15, 2020, counsel sent a fourth disclosure request by fax to the Crown’s office requesting several specific items including: McNeil reports, the certificate of a qualified technician, the station videos, including the booking video, cell video, and breath room video, and the criminal records of any witnesses.
[20] On December 30, 2020, counsel appeared for the Applicant and advised that he was waiting for outstanding disclosure. He requested that the matter be adjourned to February 10, 2021, to receive and review disclosure.
[21] On January 21, 2021, defence counsel faxed a fifth disclosure request to the Crown’s office repeating his request for McNeil reports, the certificate of a qualified technician, the station videos, including the booking video, cell video, and breath room video, and the criminal records of any witnesses.
[22] On February 9, 2021, counsel sent a sixth disclosure request by email to the Crown’s office. It appears that the certificate of a qualified technician was disclosed sometime between January 21, 2021, and February 9, 2021, because the sixth request did not include a request for the certificate but repeated the request for McNeil reports, the station videos, and the criminal records of any witnesses. It also requested the alcohol influence report.
[23] On February 10, 2021, counsel again appeared in court for Mr. Korovchenko and again advised that he was waiting for “some” disclosure in the matter. The matter was adjourned to March 10, 2021, for receipt and review of the disclosure.
[24] On March 3, 2021, counsel sent a seventh disclosure request by email to the Crown’s office repeating the requests made January 21, 2021 and February 9, 2021 for McNeil reports, the station videos, the criminal records of any witnesses, and the alcohol influence report.
[25] On March 10, 2021, counsel again appeared and advised that several requests for disclosure had been made and he was missing the station videos “which are very important to move this matter along, given the nature of the allegations”. He emphasized that it was taking “much longer than normal to get this disclosure” and requested that the matter be adjourned to April 14, 2021. The Crown made no comment about the outstanding disclosure and consented to the request. The matter was adjourned to April 14, 2021.
[26] On March 23, 2021, counsel sent an eighth disclosure request by email to the Crown’s office requesting the same items previously requested on March 3, 2021.
[27] On April 7, 2021, counsel wrote to the assigned Crown requesting a bail variation. He advised that he had not received the video disclosure “as well as several other items” despite several requests. This was the ninth disclosure request for the videos. He did not receive a response from the assigned Crown.
[28] On April 13, 2021, counsel sent a tenth disclosure request to the Crown’s office by email again requesting the McNeil reports, the station videos, the criminal records of any witnesses, and the alcohol influence report.
[29] On April 14, 2021, counsel appeared in court and advised there was substantial disclosure outstanding. He indicated that he had contacted the assigned Crown but had not received a response. He requested an adjournment of the matter to May 19, 2021, to obtain and review the outstanding disclosure and to conduct a Crown resolution meeting. The Crown made no objection to the request and consented to the adjournment confirming there were videos outstanding including the breath tests and 911 call “that are important for an impaired”. The court adjourned the matter to May 19, 2021.
[30] On May 4, 2021, counsel sent an eleventh disclosure request by email repeating his requests for the McNeil reports, the station videos, CPIC criminal records, and the alcohol influence report.
[31] On May 19, 2021, counsel again appeared in court and again advised there were significant items of disclosure outstanding. He indicated that he had made numerous requests and had contacted the assigned Crown. He requested the matter be adjourned to June 23, 2021, to review disclosure and conduct a Crown resolution meeting. The Crown made no objection, and the matter was adjourned to June 23, 2021.
[32] On May 19, 2021, defence counsel sent the assigned Crown a follow up email. He repeated his request for the Crown to consider a bail variation and reiterated that video disclosure “along with other items of disclosure” were outstanding. He requested assistance from the assigned Crown. This was a twelfth request for the videos. The assigned Crown responded the same day and addressed the proposed bail variation, but did not address the outstanding disclosure concerns in the email.
[33] On May 25, 2021, defence counsel sent a thirteenth disclosure request seeking the McNeil reports, station videos, and CPIC criminal records of the Crown witnesses. It appears that the alcohol influence report was provided sometime between May 4 and May 19, 2021, because it was not referred to in the May 25, 2021 request.
[34] On June 15, 2021, counsel sent a fourteenth request for disclosure by email requesting the McNeil reports, station videos, and CPIC criminal record information.
[35] Defence counsel appeared in court on June 23, 2021. He advised that the station videos were still outstanding. He told the court the videos were important because of the nature of the allegations. He indicated that he had written to the assigned Crown and was awaiting a response. The case management coordinator for the Crown’s office advised the court that the video had been received and would be sent to the defence counsel. The matter was adjourned one month to July 21, 2021, for counsel to review the disclosure and conduct a resolution meeting with the assigned Crown.
[36] After counsel received the station videos, sometime between June 23 and July 6, 2021, he determined that the first two hours and forty minutes of the video was missing. The missing content included the recording of the booking process and the breath testing procedure.
[37] On July 6, 2021, defence counsel contacted the Crown’s office by email and requested the missing footage. This was a fifteenth disclosure request.
[38] On July 21, 2021, defence counsel appeared in court and advised there was an outstanding item of disclosure that was necessary to conduct the Crown pre-trial. He requested that the case be adjourned to August 11, 2021. The Crown consented, indicating “that’s agreeable”, and the matter was adjourned to August 11, 2021.
[39] On July 27, 2021, defence counsel sent a sixteenth disclosure request to the Crown by email and repeated the request for the missing station video content.
[40] On August 11, 2021, almost one year after the offence date, counsel appeared in court and advised he was still waiting for the station videos. He advised that numerous requests had been made. He requested that the matter return on September 8, 2021. The Crown, once again, consented to the request, and advised that there was no indication of when the disclosure would be ready. The matter was adjourned to that date.
[41] On August 17, 2021, counsel sent a seventeenth disclosure request repeating his request for the missing content of the station video. It appears that the missing content was disclosed sometime between August 17 and August 25, 2021.
[42] After receiving the outstanding video disclosure, counsel promptly wrote to the assigned Crown on August 25, 2021, to inquire whether the Crown was seeking a jail sentence. Defence counsel asked the assigned Crown whether the police had responded to the Crown’s November 2020 inquiry regarding whether injuries were caused by the accident. The assigned Crown responded the same day and advised he had received an ambiguous response about the injuries and had requested clarification.
[43] On September 7, 2021, the assigned Crown disclosed the victim had advised that he sustained injuries to his neck, back, shoulders, and knees as a result of the accident and had been unable to work since the accident. The assigned Crown advised counsel that he had requested the police to obtain details of the injuries and had requested that the police consider charging the Applicant with “cause bodily harm”. The Crown advised they would be seeking a custody sentence on a guilty plea and, for the first time, suggested that a judicial pre-trial be held.
[44] The next day, on September 8, 2021, counsel appeared for the Applicant in court. He advised that he was waiting on information from the police regarding potential injuries and that he required instructions from his client about how he wished to proceed. He requested the matter be adjourned to September 29, 2021. The Crown consented to the adjournment and the matter was adjourned to that date. The same day, defence counsel sent a disclosure request for the CPIC criminal records of all Crown witnesses.
[45] On September 27, 2021, the assigned Crown disclosed further information about the victim’s injuries and advised that he believed that medical records would be forthcoming.
[46] On September 29, 2021, defence counsel appeared in court and advised the matter would require a trial. The matter was adjourned to the trial scheduling court on October 20, 2021. On September 29, 2021, counsel sent a further request for any criminal records of witnesses.
[47] On October 20, 2021, an agent appeared on behalf of defence counsel and the matter was scheduled for a two-day trial on September 8 and 9, 2022. September 8 and 9, 2022 were the first dates offered by the court. Agent for counsel advised that counsel had earlier available dates.
C. Framework for Analysis of s. 11(b): R. v. Jordan, 2016 SCC 27
[48] In Jordan, the Supreme Court of Canada established a new framework to be applied where a breach of s. 11(b) is alleged. At the heart of the framework is a presumptive ceiling of 18-months for cases tried in a provincial court, beyond which delay is presumptively unreasonable.
[49] The Court of Appeal in R. v. Coulter, 2016 ONCA 704[^1], at paras. 34 to 41, summarized the steps to be taken when applying the Jordan framework:
a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (Jordan, at para. 47[^1])
b) Subtract defence delay from the total delay, which results in the “Net Delay”. (Jordan, at para. 66[^1])
c) Compare the Net Delay to the presumptive ceiling. (Jordan, at para. 66[^1])
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. (Jordan, at para. 47[^1]) 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. (Jordan, at para. 71[^1])
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. (Jordan, at para. 75[^1])
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. (Jordan, at para. 80[^1])
g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (Jordan, at para. 48[^1])
[50] Where “remaining delay” is less than 18 months, the onus is on the defence to show that the delay is unreasonable. To do so the defence must establish that:
i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
ii) the case took markedly longer than it reasonably should have.
Absent proof of both these factors the s. 11(b) application must fail.
[51] In Jordan the Supreme Court held that it expected “stays below the presumptive ceiling to be rare and limited to clear cases”.[^1]
D. Should the period between February 10, 2021, and August 11, 2021 (or any period) be treated as Defence Delay?
Delay attributable to the Defence
[52] In Jordan, the Supreme Court of Canada held that defence delay has two components:
i.) Delay waived by the defence where there has been an explicit or implicit s.11(b) waiver that is clear and unequivocal for a specific period; and
ii.) Delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial”. This includes frivolous applications and requests.[^2]
[53] In Cody[^3], the Supreme Court of Canada explained that the only deductible defence delay under the second component is that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.
[54] In Jordan the court identified frivolous applications and requests as examples of delay caused solely by the defence. A second example is where the defence is not ready to proceed but both the court and the Crown are ready to proceed.[^4]
[55] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Defence applications and requests that are not frivolous will generally not count against the defence and the defence must be allowed preparation time even where the court and Crown are ready to proceed.[^5]
[56] In Jordan, the Supreme Court of Canada observed that determining whether delay is caused solely or directly by defence conduct is not an exact science, trial judges are uniquely positioned to gauge the legitimacy of defence actions.[^6]
Respondent’s Position – Defence Delay
[57] Both parties agree there was no explicit or implicit s. 11(b) waiver by the defence for any period. At issue in this case is whether some portion of the delay was solely or directly caused by the conduct of the defence.
[58] The Respondent submits that the period between February 10, 2021, and August 11, 2021, a period of 210 days, should be subtracted as defence delay because the obligation of the Crown to make disclosure did not justify the defence “inertia” in moving the case forward. The Respondent submits that the Crown did not withhold disclosure, rather, the Crown discharged its duty to provide full initial and additional substantial disclosure to defence counsel “as soon as it became available”. The outstanding disclosure was not crucial. The Applicant had sufficient disclosure to know the case to meet in order to move the matter along and should have set trial dates rather than requesting the matter be adjourned to await disclosure.
[59] The Respondent further submits that the Applicant had remedies available to address any “failure to disclose”, such as scheduling a judicial pre-trial or bringing a disclosure application but chose not to take steps that would have assisted in moving the matter forward. The Respondent submits that Crown counsel sought to move the case forward by initiating counsel pre-trial discussions and that the Applicant was stagnant, failing to contact the Crown for resolution discussions and failing to take steps to schedule trial dates, knowing that the matter may not be resolving.
Applicable Disclosure Principles
[60] Pursuant to Stinchcombe, the Crown has an obligation to disclose all relevant information relating to the investigation against an accused. The Crown has the obligation to make initial disclosure prior to the accused being called upon to make an election or to enter a plea and to provide "continuing" disclosure "when additional information is received" during the period leading up to trial. The defence has an obligation to bring any failure by the Crown to comply with its duty to disclose to the attention of the court.[^7]
[61] I disagree that the Crown fulfilled its disclosure obligations by providing materials “as soon as they became available” from the police. The police and the Crown are jointly responsible to disclose the fruits of the investigation. The police have a duty to provide the Crown with the fruits of the investigation for disclosure without prompting. If the police fail to do so, the Crown has a responsibility to obtain and disclose the fruits of the police investigation. The Crown is not merely a “passive recipient” of disclosure material. The Crown has a duty to make reasonable inquiries when put on notice of relevant material in the hands of the police. The Crown cannot explain a failure to disclose relevant material in the hands of the investigating police agency on the basis that the investigating police force failed to pass the material on to the Crown.[^8]
[62] I recognize that disclosure is an ongoing process, and the Crown is not required to make complete disclosure before a judicial pre-trial or a trial date is set. The Crown’s obligation to make full disclosure in advance of trial cannot justify the defence refusing to take preliminary steps, such as attending pre-trials or setting a date for trial until “every last bit” of disclosure has been received.[^9]
[63] Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. Where outstanding disclosure is alleged to explain a defence request for an adjournment, “it is necessary to consider what documents were outstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown’s constitutional duty of disclosure”. After examining the outstanding items in light of these considerations, the court must decide whether the defence was entitled to refuse to proceed to the next step in the process. Where the defence has made a late request for material with no potential relevance, any delay that results should not be attributed to the Crown.[^10]
[64] In this case, defence counsel was duly diligent in seeking initial and subsequent disclosure and the outstanding disclosure requested by the defence was highly relevant core disclosure. The defence requests to adjourn for disclosure between October 28, 2020, and August 11, 2021, were not frivolous requests or deliberate and calculated delay-causing tactics. The requests were appropriate and reasonable, especially given the Crown consent to the requests to adjourn.
[65] A review of the history of the proceedings makes clear that there was a clear causal connection between the delay in the provision of the disclosure and the delay in the proceedings. Defence counsel made clear, on each occasion between October 28, 2020, and August 11, 2021, that they were requesting the adjournments because of the outstanding disclosure. I accept that throughout this period the defence was seeking core disclosure that was important to the Applicant’s determination of whether the matter would resolve or proceed to trial and to the issues at trial.[^11]
[66] Defence counsel was retained immediately and appeared at the bail hearing. The first defence request for disclosure was made on September 28, 2020, one month in advance of the first appearance out of custody. Thereafter, the defence made repeated disclosure requests, 17 in total, by fax and email to the Crown’s office. On all but one court appearance the defence counsel, as opposed to an agent, appeared for the accused. On each appearance between October 28, 2020, and September 8, 2021, counsel updated the court on the status of the outstanding disclosure.
[67] In addition to the 17 disclosure requests made by email and fax, defence counsel contacted the assigned Crown by email in April and May 2021 to seek assistance in remedying the problems with disclosure.
[68] This was a simple drinking and driving case. Most, if not all, of the disclosure was created on August 19, 2020, the date of the offence. The disclosure should have been available within a short period of the offence. Notably in Morin[^12], also a simple drinking and driving case, the Supreme Court found that the inherent time requirements of the case, necessary to complete all normal intake procedures including the provision and review of disclosure, was two months.
[69] In Jordan, the Supreme Court emphasized that in ensuring timely justice it is the responsibility of the Crown to, amongst other things, deliver on their disclosure obligations promptly with the cooperation of police.[^13] That did not happen in this case. The Crown and police failed to carry out their disclosure obligations promptly. Even though most if not all the disclosure would have been in existence from the date of the offence, it took 3.5 months for “initial disclosure” to be provided. The “initial disclosure” was missing critical items, including the certificate of analysis, alcohol influence report, and the station videos, which included the booking video and breath room video which recorded the breath testing procedure.
[70] The certificate of analysis was not provided for five months. It was disclosed sometime between January 21, 2021, and February 9, 2021. The certificate of analysis is often the means by which the Crown introduces the breath test results.
[71] The alcohol influence report was not disclosed for approximately nine months -sometime between May 4 and May 19, 2021. The alcohol influence report is a core piece of disclosure in an impaired/over 80 case. It is used to record such things as the grounds received by the qualified breath technician to make a demand, discussions about rights to counsel, details of the breath test procedure and results, and observations of the accused. It is often the primary source of notes of the qualified breath technician.
[72] It took a full year before a complete copy of the station videos were disclosed. The booking surveillance video and the breath room video, which records the qualified breath technicians’ interactions with the accused and the taking of breath tests, was not disclosed until August 2021, a year after the videos were created. The booking video and breath room video are often tendered as important pieces of evidence during an impaired/80 plus trial. They are often highly relevant to both proof of the substantive offence and to any Charter motions, such as alleged breaches of the right to counsel, which frequently play a predominant role in impaired driving and 80 plus cases.
[73] No explanation was provided for why it took the Crown so many months to disclose core pieces of disclosure, including the certificate of analysis, alcohol influence report, and the video of the booking and breath testing procedure. No explanation was provided for the incremental nature of the disclosure, or why only part of the station video was initially provided. If the delay was because the police failed to provide these highly relevant pieces of disclosure to the Crown in a timely manner, it does not excuse or justify the non-disclosure by the Crown, nor does it absolve the Crown of responsibility for delay caused by the non-disclosure.
[74] Even after the outstanding video footage was finally provided there was still important disclosure outstanding. After defence counsel received and reviewed the video disclosure in August 2021, defence counsel contacted the Crown on September 7, 2021, to determine whether the Crown had received a response from the police about injuries caused by the accident.
[75] On September 7, 2021, more than a year after the accident, the defence was advised for the first time that the Crown was alleging there were injuries caused by the accident and that, rather than the potential non-custodial position originally discussed, the Crown would be seeking a jail sentence. At this late stage, the defence was advised that the Crown had requested the police to consider whether a charge of impaired/80 plus causing bodily harm was appropriate.
[76] While the information about injuries may not have been in the possession of the police and the Crown until September 2021, and prior to receipt of the information there may have been no Stinchcombe disclosure obligation, the late gathering of such important information is relevant to the assessment of whether any of the delay between February 2021 and August 2021 should be considered defence delay. It is highly concerning that it took the police ten months to gather the information after the Crown’s original request for the police to make inquiries about injuries. The information was potentially crucial to the nature of the charges and the determination of an appropriate penalty. The delay by the police in obtaining and providing this information is demonstrative and consistent with the complacent attitude that plagued the preparation and provision of disclosure in the case.
[77] After receiving the information about injuries, and the potential impact on penalty, on September 8, 2021, defence counsel, not surprisingly, required time to obtain instructions from the Applicant. He promptly obtained instructions, and, three weeks later, on September 29, 2021, advised that the matter would be set for trial. Defence counsel then promptly arranged for the matter to appear in a trial scheduling court and on October 20, 2021, the trial dates were set.
Should the Defence have set a trial date at an Earlier Stage
[78] The Crown relied on R. v. Kovacs-Tatar[^14] and R. v. Richards[^15] in support of the position that it was unreasonable for the defence to fail to set a trial date while awaiting the outstanding disclosure.
[79] In Kovacs-Tatar, the accused was a doctor charged with sexually assaulting a patient. The Crown intended to lead expert evidence at trial. The expert report was not yet complete when the Crown was first ready to set trial dates. The defence objected to setting a trial date prior to receipt of the report. The Court of Appeal held that the defence position refusing to set a trial date for two months while awaiting the expert report was unreasonable and contributed to the delay. The Court stated as follows:
…Having regard to the length of time before trial, the appellant’s counsel knew the expert’s report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert’s report had he wished to do so. Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its “Stinchcombe rights” by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date. [Emphasis added].[^16]
[80] The facts of this case are distinguishable from those in Kovacs-Tatar. In Kovacs-Tatar, the expert report did not yet exist. It was not a circumstance, as in this case, where the Crown inexplicably failed to provide outstanding core disclosure which should have been part of the initial disclosure.
[81] In Richards the accused was charged with assault bodily harm and assault with a weapon following a stabbing. The issues primarily revolved around the credibility of witnesses. The defence refused to conduct a Crown pre-trial or set a date for a judicial pre-trial prior to being provided with the videos of witnesses. This resulted in three months of delay. The defence was insistent that the police summaries of the witnesses’ video statements were inadequate and that he had to have the videotapes before he could take another step.
[82] Justice Code rejected the defence position that the three months should be considered Crown delay. He found that the record was deficient because the Court was not provided with relevant correspondence and was not provided with the summaries of the video statements necessary to enable the Court to assess the defence claims. Moreover, the record suggested that the tapes were available at the Crown’s office. The Court found that the issue of the missing videotapes could have been resolved over the phone had counsel conducted the Crown pre-trial.
[83] I am satisfied that in this case the record is clear that core disclosure was outstanding for a significant period. Moreover, in this case the defence did not refuse suggestions by the Crown or Court to move the case forward. In this case when the defence sought adjournments to obtain the disclosure the Crown repeatedly consented.
[84] I am satisfied that the outstanding disclosure in this case was core disclosure involving evidence of the gravamen of the offence, not peripheral or marginally relevant material. If the outstanding disclosure had been only the McNeil reports, witness criminal records checks, or notes of peripheral officers, my findings would be different. Similarly, my conclusions regarding the appropriateness of the matter being adjourned to await disclosure may also have been different if the outstanding items sought by defence did not yet exist; required a significant period of time to be prepared (for example where the time intensive forensic examination of an electronic device is necessary); or if the items in question are not in the possession of or readily available to the police or Crown. In this case the outstanding disclosure was created on the date of the offence, was core highly relevant disclosure, and could and should have been provided to defence within a short time of the offence date.[^17]
[85] My conclusions may also have been different had the court or the Crown requested that a pre-trial be set or requested that the matter be set for trial. The Crown submission that the defence should have set a pre-trial, brought a disclosure application, or set the matter down for trial despite the outstanding disclosure, is inconsistent with the position taken by the Crown in court. Neither the Crown nor the Court challenged or objected to defence counsel’s ongoing requests for adjournments. Rather, the Crown consented to the defence requests for adjournments.
[86] When defence counsel wrote directly to the assigned Crown about the outstanding disclosure in April and May 2021, he received a response to his inquiry regarding bail but no response to the request for assistance with disclosure. If the Crown intended to argue that the defence should have set a trial date or taken another step to resolve the outstanding disclosure issues and by failing to do so the defence was the sole cause of the delay, it was incumbent on the Crown to advance this position at an earlier stage. Instead, between October 28, 2021 and August 11, 2021, the Crown repeatedly consented to the defence requests for adjournments, a position which conveyed an acceptance or recognition that the requests were not unreasonable.
[87] I do not accept the Crown’s submission that the delay between February 10, 2021 and August 11, 2021 is defence delay because the Applicant should have set trial dates despite the outstanding disclosure. The outstanding disclosure was fundamental core disclosure that was diligently pursued by the defence. The requests for disclosure, and related requests for adjournments were not frivolous and were not a deliberate or calculated tactic to delay the trial. The delay was not solely caused by the conduct of the defence. It was caused by the ongoing failure of the police and the Crown to fulfill basic disclosure obligations in a timely manner.
[88] The Crown and police response to the Applicant’s legitimate and repeated requests for disclosure was indicative of the type of complacency that the Supreme Court in Jordan sought to combat. Over the course of a year the case continued to be adjourned from month to month and neither the Crown nor even the Court took steps to remedy the problem. In the end, the non-disclosure, and the response of all parties to the non-disclosure, resulted in 13 months and 10 days of delay between August 19, 2020 and September 29, 2021, none of which was solely the fault of the defence.
E. Should a period of time be deducted from net delay because of exceptional circumstances due to the pandemic?
Exceptional Circumstances
[89] The Respondent submits that a block of time must be deducted to account for the Covid-19 pandemic, a discrete exceptional event which caused an unprecedented backlog of cases in the system. The Crown suggests that a period of 4 months (122 days) is reasonable in the circumstances.
[90] If the net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances. Pursuant to the Jordan framework, exceptional circumstances “lie outside the Crown’s control in the sense that:
i) they are reasonably unforeseen or reasonably unavoidable, and
ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.”[^18]
[91] In Coulter, the Court of Appeal explained that the period of delay caused by any discrete event must be deducted from net delay for the purpose of determining if the presumptive ceiling has been reached. The Court of Appeal provided a medical or family emergency as an example of a discrete exceptional event.
[92] Any portion of delay caused by a discrete event “that the Crown or the system could reasonably have mitigated may not be subtracted”.[^19] In respect of the obligation of the Crown to mitigate the impact of discrete events in Jordan, the Court stated, at para. 70:
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay.
[93] The Covid-19 pandemic is clearly a “reasonably unforeseen and unavoidable event”. Numerous courts have recognized that the delay caused by the adjournment of trials due to the pandemic is a discrete exceptional event, which requires a deduction of a reasonable period of delay from net delay to account for the additional pressures and backlog arising out of the pandemic.[^20]
[94] The pandemic began six months before the offence and continued as this case progressed. Because of the pandemic, for a period of time the public and justice participants could no longer attend court houses due to serious public health concerns. The pandemic created an unprecedented challenge to the court system causing mass cancellations of trials. Court operations were suspended as the criminal justice system responded to a new reality, adopting entirely new processes so that trials could proceed remotely and retrofitting courthouses and courtrooms to allow some matters to proceed in-person.
[95] The Court may take notice of the procedures and processes of the Ontario Court of Justice. In the months after the pandemic emerged the Chief Justice of the Ontario Court of Justice released directives which make clear the unprecedented impact of the pandemic on the criminal justice system. Between March 16, 2020, and July 6, 2020, in accordance with the Chief Justice’s directive, all out-of-custody matters were presumptively adjourned. Neither out-of-custody nor in-custody trials could proceed. During this period court houses were equipped with better ventilation systems, courtrooms were outfitted with protective equipment, and technology was put in place to permit remote hearings and limited in-person proceedings.[^21]
[96] On July 6, 2020, in accordance with a subsequent directive, the Newmarket courthouse resumed hearing a limited number of trials and preliminary inquiries that were already scheduled in a limited number of courtrooms.[^22]
[97] On July 2, 2020, the Chief Justice published an incremental plan to begin to set unscheduled criminal trials and preliminary hearings. Priority was appropriately given to in-custody matters. In-custody continuations could begin to be scheduled as of July 6, 2020. Other in-custody matters were eligible to have new dates set between July 7 and July 21, 2020.
[98] Out of custody continuations could begin to be scheduled as of August 5, 2020.[^23]
[99] On August 12, 2020, the Chief Justice released an updated notice that advised the court could begin to schedule out-of-custody trials and preliminary inquiries that had previously been adjourned due to the Covid-19 pandemic between August 17, 2020, and September 21, 2020. Priority was to be given based on the date of the previously scheduled trial or continuation date. New out-of-custody hearings could begin to be scheduled on September 28, 2020.[^24]
[100] Between April 26, 2021, to May 7, 2021, due to a resurgence in the pandemic, Ontario Court of Justice trials were adjourned at the direction of the Chief Justice to seek to reduce the number of people attending in courthouses including court staff. As a result, more trials and preliminary hearings had to be rescheduled.[^25]
[101] The cancellation of all criminal trials and preliminary hearings between March 16, 2020, and July 6, 2020, the reduced capacity of courts to hear matters in the months that followed, and the challenge of rescheduling so many matters, all while new matters continued to enter the system, unquestionably had a significant and ongoing impact on the criminal justice system. As indicated by Justice Wright in Ajgirevitch: “It is not a single closure of the courts or a specific lost day. It is an exceptional circumstance that continues to ripple through the courts”[^26].
[102] I agree with the comments of Justice Nakatsuru in Simmons, in which he recognized the unprecedented, unavoidable and wide-reaching impact of the COVID-19 pandemic on the criminal justice system as follows:
Second, the impact of the COVID-19 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 upon how we do things, and, on the people who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. 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.[^27]
[103] I agree with the Crown submission that although the Applicant’s trial was not cancelled due to COVID-19, the pandemic nonetheless contributed to delay in this case. I accept that the matter would have proceeded more expeditiously but for the effects of COVID-19. The pandemic has resulted in an increase in backlog and delay in matters being heard, especially in a large and busy jurisdiction such as York Region.
[104] While the ongoing pandemic had an impact on the way disclosure was prepared and provided – longstanding disclosure practices had to be revised because of the pandemic, the difficulties with disclosure in this case occurred more than eight months after the outset of the pandemic and continued until August of 2021. The Crown did not seek to rely upon the pandemic to explain or justify the difficulties with disclosure in the case and in my view the delays during that time frame were not as a result of the pandemic. As a result, I have not deducted any period for pandemic-related delay between August 19, 2020, and September 29, 2021.
[105] In respect of the period between September 29, 2021, and September 9, 2022, a period of 11 months and 12 days, while it is difficult to quantify the amount of delay attributable to the pandemic, a judge is entitled to consider local circumstances. I am satisfied that the length of time to schedule a simple two-day drinking and driving case has been extended by a minimum of three months because of the pandemic. In the absence of a more fulsome evidentiary record, such as that presented in Ajgirevitch, I am not satisfied that I should deduct the four months proposed by the Crown. The period of three months is likely a modest estimate but, in my view, it is a reasonable allowance. The allowance of three months includes the additional time required for a trial scheduling appearance – a practice adopted to facilitate efficient trial scheduling in York Region in place of in-person attendance at the trial coordinators office – and the additional time required for a matter to be set for trial from the trial scheduling set date.[^28]
[106] I accept that the delay associated with the pandemic is not a delay that any individual Crown could have reasonably foreseen or avoided. I also accept that justice participants both in York Region and throughout Ontario have worked tirelessly to respond to the challenges posed by the pandemic, implementing new practices to allow the criminal justice system to move forward such as creating a trial scheduling court, implementing special “COVID 19” judicial pre-trials, implementing virtual case management courts to address first appearances and adjournments, introducing virtual plea courts to allow out-of-custody pleas and in-custody remote pleas to be heard, modifying court rooms to permit in-person proceedings, and conducting trials online through Zoom.[^29]
F. Conclusion
[107] The total delay in the case is 24 months and 21 days. In accordance with my findings there is no deduction for defence delay, such that the net delay is the same as total delay. There is a three-month deduction for pandemic related delay, an exceptional circumstance. Even with a deduction of three months for the discrete exceptional event of the pandemic, the remaining delay is 21 months and 21 days, a period well in excess of the Jordan presumptive ceiling. This delay cannot be justified. As a result, in accordance with Jordan the application to stay the proceedings for a violation of Mr. Korovchencko’s s. 11(b) rights is granted and the charges are stayed.
Released: August 26, 2022 Signed: “Justice Marcella Henschel”
[^1]: Jordan, at paras. 48 and 56; Coulter, 2016 ONCA 704, at paras. 34 to 41, and 53. [^2]: Jordan, at paras. 61, and 63. [^3]: R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at paras. 29-35. [^4]: Jordan, at paras. 63 and 64. [^5]: Jordan, at para. 65. [^6]: Jordan, at para. 65. [^7]: R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.), at paras. 24 and 28; R. v. McNeil, 2009 SCC 3, at para. 17. [^8]: McNeil, at paras. 23 and 24; R. v. Quesnelle, 2014 SCC 46, at para. 12. [^9]: R. v. M (N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 37; R. v. Schertzer, 2009 ONCA 742, at paras. 2 and 93-94; R. v. Carbone, 2020 ONCA 394, at paras. 51-53; R. v. Hanan, 2022 ONCA 229, at para. 44; R. v. Lahiry, 2011 ONSC 6780, at para. 114; R. v. Richards, 2010 ONSC 6202, at para. 22. [^10]: M. (N.N.), at paras. 37 and 38. [^11]: R. v. Allison, 2022 ONCA 329, at paras. 50 and 51. R. v. Carbone, 2020 ONCA 394, at paras. 47-53. [^12]: R. v. Morin, [1992] 1 SCR 771. [^13]: Jordan, at para. 138. [^14]: (2004), 192 C.C.C. (3d) 91, (Ont. C.A.) [^15]: 2010 ONSC 6202 (SCJ). [^16]: Kovacs-Tatar, at para. 47. [^17]: Stinchcombe, at para. 28. [^18]: Jordan, at para. 69; R. v. Coulter, 2016 ONCA 704, at paras. 45-48. [^19]: Coulter, at para. 50. [^20]: See for example R. v. Toor, 2022 ONCJ 8, at paras. 8 and 26; R. v. Ajgirevitch 2022 ONCJ 237; R. v. Simmons, 2020 ONSC 7209, at paras. 59-60; R. v. Brooks, 2022 ONSC 115, at paras. 22 and 45. R. v. Peltier, 2022 ONSC 1153, at para. 72. [^21]: See Ontario Court of Justice Pandemic Response Plan – Criminal Directive for Trials, Pleas and Other Hearings, www.ontariocourts.ca/ocj/covid-19/ [^22]: Ontario Court of Justice Pandemic Response Plan – Criminal Directive for Trials, Pleas and Other Hearings, www.ontariocourts.ca/ocj/covid-19/ [^23]: Supra, see www.ontariocourts.ca/ocj/covid-19/ at Notices and Info about Criminal Proceedings. [^24]: Supra, see www.ontariocourts.ca/ocj/covid-19/ at Notices and Info about Criminal Proceedings. [^25]: R. v. Toor, 2022 ONCJ 8, at para. 19. [^26]: R. v. Ajgirevitch, 2022 ONCJ 237, at para. 45. [^27]: R. v. Simmons, 2020 ONSC 7209, at para. 70; see also R. v. Toor, 2022 ONCJ 8, at paras. 25 and 26; R. v. Ali Ismail 2020 BCPC 144, at para. 147. [^28]: In R. v. Ajgirevitch, 2022 ONCJ 237, the Crown filed evidence of the increase in the time trial comparing the time to trial prior to and after the pandemic. No such evidence was filed in this case. However, in respect of the time from set date to trial for similar pre-pandemic cases see for example R. v. Jeyakanth, 2017 ONCJ 31, a two-day over 80 case in York Region where the earliest available dates offered to schedule the trial in 2017 was 9 months and 22 days and R. v. Cameron Carter, unreported Judgment December 11, 2019, Henschel J. where the earliest available dates to schedule a two-day impaired driving and 80 plus case from the trial scheduling date in 2017 was 8 months. See also R. v. Toor, 2022 ONCJ 8, at para. 26 wherein Monahan J. concluded in obiter remarks that at least 3.5 months (and maybe more) should be deducted from net delay as a result of the general impact of the pandemic on trial scheduling. [^29]: R. v. Koustov, [2021] O.J. No. 191 (Ont. Prov.Ct.), at para. 31.