WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 09 22 Court File No.: Scarborough 21-35000281

Between:

HIS MAJESTY THE KING

— AND —

G.S.

Before: Justice R. Wright

Heard on: August 26, 2022 Reasons for Judgment released on: September 22, 2022

Counsel: J. Battersby, counsel for the Crown R. Tomovski, counsel for the accused G.S.

R. WRIGHT J.:

[1] On January 21, 2021, an Information was sworn charging G.S. with six counts of sexual assault, one count of assault, two counts of assault with a weapon, and one count of uttering a threat to cause death, all in relation to his domestic partner. A two-day trial is scheduled for October 17 and 18, 2022.

[2] G.S. has applied for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms (“Charter”) on the basis that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been violated.

[3] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice (“OCJ”), not including delay attributable to the defence, beyond which delay will be presumptively unreasonable. I find it helpful to refer to the ceiling and the timeframes in my analysis by days rather than months. That means that there is a ceiling of 547 days, excepting any time that is appropriately deducted due to defence delay.

[4] The total period of time for consideration in this case amounts to 635 days (just under 21 months). The parties depart in argument over four issues:

(1) The apportioning of 72 days after the Judicial pre-trial (“JPT”) had been conducted, which the Applicant argues is neutral and the Crown argues is defence delay;

(2) Whether the COVID-19 pandemic amounts to an exceptional circumstance justifying some delay;

(3) If it does, the apportioning of 20 days attributable to a Court process put in place to accommodate remote trial scheduling; and,

(4) What amount of time would be appropriate to deduct as exceptional delay due to the COVID-19 pandemic.

[5] For the reasons that follow, I am of the view that G.S.'s right to a trial within a reasonable time has not been violated.

The Chronology of Events

[6] The total delay from the day of charge to the anticipated end of G.S.’s trial is 635 days. G.S. was charged on January 21, 2021. His trial is scheduled to end on October 18, 2022.

[7] A Crown pre-trial was conducted on March 10, 2021. On April 7, 2021, the parties jointly requested a 28-day adjournment to May 5, 2021, to allow for on-going pre-trial discussions. The Applicant concedes that 14-days of this period is properly attributed to the Applicant as defence delay.

[8] A JPT was held on June 15, 2021, after which the matter was ready to be set down for trial. The next appearance date following the JPT was June 29, 2021. For that appearance, counsel for the Applicant sent an email to the Crown asking that the matter be adjourned with a discretionary warrant for resolution discussions. It was adjourned to August 3, 2021.

[9] On August 3, 2021, counsel for the Applicant appeared and requested an adjournment to August 31, 2021, citing “on-going resolution discussions” and that he was waiting to hear back from the assigned Crown, “probably within a week or two.” The matter was adjourned to August 31, 2021.

[10] On August 26, 2021, counsel for the Applicant sent the trial scheduling form to the Trial Coordinator requesting a Trial Scheduling Conference (“TSC”). The TSC was set for, and held, September 15, 2021. At the TSC, the trial dates of October 17 and 18, 2022, were selected.

[11] On October 1, 2021, the trial dates were formally recorded on the record.

[12] At none of the court appearances was the Crown or Court given notice that the Applicant would be bringing a motion pursuant to s. 11(b) of the Charter. G.S. notified the Crown and Court of his intention to bring this Application pursuant to s. 11(b) of the Charter on February 21, 2022, in writing. A TSC was arranged for February 24, 2022, to schedule the date for the hearing of this motion.

[13] On February 24, 2022, the Crown (not the assigned Crown) canvassed the availability of earlier trial dates with the Trial Coordinator given the s. 11(b) Application: earlier dates were not offered. On June 17, 2022, the assigned Crown emailed the Trial Coordinator canvassing the possibility of earlier dates for the trial: earlier dates (August 22 and 23, 2022) were offered, but counsel for the Applicant was not available.

The Analytical Framework

[14] The primary purpose of s.11(b) of the Charter is to protect the individual rights of accused persons, namely:

• the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges;
• the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
• the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh.

[15] The secondary purpose of s. 11(b) is to protect the interests of society. This includes seeing that citizens who are accused of crime are treated fairly, and the public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial.

[16] A decision as to whether s.11(b) has been violated “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” that takes a “bird’s eye view” of the proceedings.

[17] In R. v. Jordan, 2016 SCC 27, the Supreme Court provided the framework for assessing an Application under s. 11(b) of the Charter:

A. the total delay from the laying of the charge to the anticipated end of the trial must be calculated. B. once that period is determined, any delay attributable to the defence must be subtracted to determine the net delay. Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay. C. where the net delay in the provincial court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. In general, exceptional circumstances fall into two broad categories: (1) discrete and exceptional events, or (2) particularly complex cases. However, the list of exceptional circumstances is not closed. In addition, the Crown must show that it could not reasonably remedy or prevent the delays from those exceptional circumstances. D. If the Crown fails to establish both exceptional circumstances existed and that its/the system's response to the circumstances was reasonable, a stay must be entered. If the Crown meets these two hurdles, the Court must calculate the number of months of exceptional delay and subtract that from the remaining delay. If the result is above the 18-month ceiling, the delay is unreasonable, and a stay must be entered. E. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.

Application of the Framework

A. Total Delay From the Laying of the Charge to the Anticipated End of Trial

[18] The parties agree that the total delay in this case is 635 days.

B. Subtracting Delay Attributable to the Defence

[19] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence.

[20] The Applicant concedes that 14 days of the 28-day period where both parties delayed the setting of the JPT to conduct further pre-trial discussions is delay attributable to the defence. Deducting that leaves 621 days to be considered. Aside from those 14 days, the Applicant submits that there is no other period of time that is attributable to the actions of the defence.

[21] The Respondent submits that 72 further days are attributable to the defence. This is the period of time from the completion of the JPT (June 15) to the date that the Applicant requested the TSC (August 26).

[22] The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay. In R. v. Jordan, 2016 SCC 27, the Supreme Court noted at para. 65:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions

[23] If the Applicant is correct that the time following the JPT to conduct further resolution discussions is not subject to further deduction as defence delay, then defence counsel could delay as long as they wish to set the trial date and then rely on this delay to argue that s. 11(b) rights have been infringed. Such a scenario is not what was contemplated by the court in Jordan as “procedural requirements.” It would also run counter to the court’s statement in Jordan that the court, Crown and defence all have to “work in concert to achieve speedier trials”: R. v. Jordan, 2016 SCC 27, at para. 116. Additionally, in my view it is contrary to the Court of Appeal decision in R. v. Chung, 2021 ONCA 188, at paras. 186-189.

[24] This is simply an issue of the defence benefiting from its own delay-making conduct. Having completed the JPT, the matter was ready to be scheduled for trial. The defence requested adjournments to allow for resolution discussions, which were ultimately unsuccessful. This is delay that is directly caused by the conduct of the defence.

[25] The facts here are distinguishable from my decision in R. v. Ajgirevitch, 2022 ONCJ 237. In that case, Ms. Ajgirevitch was self-represented when the matter was adjourned for on-going resolution discussions prior to a JPT. The matter was not ready to set for trial. In that case, that time frame was a part of the “procedural requirements” as both parties were considering their resolution positions prior to scheduling a JPT.

[26] G.S. was represented by counsel. The matter was ready to be set for trial following the JPT. Rather than set the matter for trial (and have resolution discussions following), the defence requested two adjournments.

[27] For the time period between June 15 and August 26, 2021, I find it simply would not be fair to have the defence benefit in the delay calculation from delay that was directly requested by the defence to explore resolution. This 72-day period is further deducted, leaving 549 days to be considered, slightly in excess of the 18-month presumptive ceiling.

C. Where the net delay in the provincial court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay

[28] The Respondent submits the impact of COVID-19 on the Courts is an exceptional circumstance that impacted this case. It does not fit neatly into the general category from Jordan of a “discrete exceptional event” such as an illness, but it is exceptional and is the cause of delay in securing G.S.'s trial date. The Respondent points to the impact of the backlog of cases adjourned due to the cancelling of trials and subsequent limited availability of the Courts.

[29] The Applicant argues that COVID-19, while a discrete exceptional event for some cases (such as those whose trial dates were lost due to one of the periods of trial cancellation), is not clearly the cause of delay for G.S. The Applicant argues there is no evidence that, but for the pandemic, the Applicant would have received an earlier trial date. The Applicant submits COVID-19 as an exceptional circumstance should be limited to those cases where there is a clear connection from a specific COVID-19 impact to the delay in a case. Without evidence that the specific delay the Crown seeks to deduct was caused by the COVID-19 pandemic in this case, that time cannot be deducted (R. v. Greenidge, 2021 ONCJ 57).

[30] In my view, this argument is too narrow a reading of Jordan. It is not “discrete events” that the Crown must establish, but exceptional circumstances. Discrete and exceptional events are but one of the two general categories of exceptional circumstances identified in Jordan. However, the Court was clear that the list of exceptional circumstances is not closed:

[69] 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also 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.

[71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[31] Numerous Courts have held that the effects of the COVID-19 pandemic constitute exceptional circumstances: R. v. Drummond, 2020 ONSC 5495, at para. 76; R. v. Simmons, 2020 ONSC 7209, at paras 59-60; R. v. Obregon-Castro, 2021 ONSC 1096, at paras. 38-39; R. v. Robinson, 2021 ONSC 2445, at para. 101; R. v. Khan, 2021 ONCJ 195, at paras. 3-15; R. v. Venne, 2021 ONCJ 80, at paras. 22-34; R. v. Korovchenko, 2022 ONCJ 388, at para. 103.

[32] In assessing whether G.S.’s case was impacted by the COVID-19 pandemic, this Court is able to take notice of the procedures and processes of the OCJ:

(1) The Court was closed to trials and preliminary hearings from March 16 to July 3, 2020. All out-of-custody trials and preliminary inquiries were cancelled on March 16, 2020;

(2) On July 6, 2020, the Court re-opened very limited courts for criminal trials and preliminary inquiries and critical family proceedings;

(3) When trial courts partially re-opened on July 6, 2020, the Chief Justice directed that the trials and preliminary inquiries cancelled between March 16 and July 3, 2020, had to be rescheduled with a priority being given to in-custody cases that were cancelled during this time. Otherwise, cancelled trials and preliminary hearings were directed to be rescheduled on the basis of the date of the original trial or preliminary inquiry;

(4) New cases, such as G.S.'s, could not request a trial date until (at the earliest) September 28, 2020; in some courthouses, this date was much later;

(5) Justice of the Peace case management courts were also unavailable for new cases from March 16, 2020, and did not re-open to new cases until August 24, 2020, when they re-opened virtually (following a significant investment in the Court’s capacity for virtual proceedings);

(6) Trial courts were closed again by direction of the Chief Justice when all trials and preliminary hearings (including virtual proceedings) April 26 to May 7, 2021, had to be adjourned to try to reduce the number of people entering courthouses during a critical phase of the pandemic. All in-person, out-of-custody trials and preliminary hearings from May 10 to May 21, 2021, were adjourned. As a result, more trials and preliminary hearings had to be rescheduled;

(7) Many courthouse procedures moved from in-person to virtual through 2020. This includes the move to virtual TSCs to allow for the orderly canvassing of trial dates while the participants were not physically in the courthouses.

[33] The Applicant submits that the pandemic did not affect this case – that the setting of the trial dates occurred after both Court closures, and the scheduled trial dates come after almost full reopening. The Applicant submits that, in the absence of proof that this case was directly delayed by the pandemic, it is not appropriate to deduct time for COVID-19 as an exceptional circumstance.

[34] I disagree. The Applicant’s submission would have COVID-19 treated like a single event impacting a single discrete case or day of Court. It is not a single closure of a Court or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts. No case is an island — the Applicant would have his case assessed as though no other cases existed.

[35] In Toronto, one of the busiest jurisdictions in the country, the unprecedented restrictions to trial courts for months over the course of 2020 and into 2021 has and will continue to have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209:

[70] 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.

[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 - 84.

[72] Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes 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 the court can reasonably do in mitigating the delay.

[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region--which has now suspended jury trials again since October 9, 2020--has recently extended the suspension of jury trials to January 4, 2021.4 In short, when it comes to assessing COVID-19's impact on the criminal justice system, this discrete event continues. [emphasis added]

[36] While Nakatsuru J.’s comments are directed to jury trials, there is simply no doubt that the backlog of cases has led to a similar increase in time-to-trial in the OCJ, despite the increased practice of double and triple booking trials in most jurisdictions. This is directly caused by the exceptional circumstances of the COVID-19 pandemic: R. v. Ajgirevitch, 2022 ONCJ 237, at paras. 39-47; R. v. Korovchenko, 2022 ONCJ 388, at para. 103; R. v. Hazizaj, 2022 ONCJ 386, at paras. 17-24, 32-46; R. v. Khan, 2021 ONCJ 195, at paras. 3-15; R. v. Venne, 2021 ONCJ 80, at paras. 22-34; R. v. Hamidi, Scarborough OCJ unreported; R. v. Farooq, Scarborough OCJ, unreported.

[37] In order to qualify as an exceptional circumstance, the Crown must show it could not have reasonably remedied or prevented the delay. The Crown (including the Court) cannot sit idly on their hands when rescheduling the backlog created by COVID-19. The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that reasonable efforts were made to remedy the problems impairing the progress of the case through the justice system and pushing it into the constitutionally intolerable zone of unreasonable delay.

[38] The analysis must include an assessment of whether the Crown, and the criminal justice system, took steps to mitigate the delay. Otherwise, the Crown would be informally relieved of the burden to show that presumptively unreasonable delay truly qualifies as an exceptional circumstance

[39] In addition to the staggered reopening of Courts, the investment in virtual proceedings, and the triage of priority cases which were adjourned due to Court closures, which I have referenced above, I take notice of the steps taken within the Scarborough Trial Coordinator's Office to attempt to remedy the delay that has been occasioned by the pandemic: these include the hiring of two additional assistant trial coordinators and an increase in double and triple booking cases.

[40] I am further able to consider the significant steps taken by both the Court and the Crown to allow for the hearing of matters during the course of the pandemic, including the creation and use of virtual courtrooms and processes. This is not the Crown idly sitting on their hands in addressing the backlog of cases. These are concrete steps to move all matters in the system forward with as little delay as possible, including G.S.'s.

[41] Finally, I note that when the Applicant raised the issue of delay in this specific case, the Crown attempted to secure earlier trial dates for his matter. These attempts were ultimately unsuccessful, but “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” (R. v. Jordan, 2016 SCC 27, at para. 70).

[42] The Applicant argues that these attempts should not be considered as “reasonable steps” by the Crown to attempt to address delay as the Crown did not attempt to secure earlier dates until the Applicant filed this motion. I disagree. Once the Crown was put on notice that the Applicant would raise the issue of delay, the Crown sought earlier trial dates. Presumably, had any mention of delay been made at any earlier point in the proceedings, the Crown or the Court would have made earlier efforts to find an earlier trial date: the Court, Crown and defence all have to “work in concert to achieve speedier trials” (R. v. Jordan, 2016 SCC 27, at para. 116).

[43] I find it is reasonable that, being put on notice, the Crown sought earlier trial dates. I find it is further reasonable that the Crown again attempted to find earlier trial dates in June of 2022 (approximately 4 months prior to the scheduled trial dates).

[44] The steps that the Court and the Crown have taken in an effort to address delays caused by the COVID-19 pandemic have been reasonable. The steps taken in G.S.'s case, specifically, are also reasonable.

D. Calculating the Number of Months of Exceptional Delay

[45] I turn then to consider the appropriate amount of time that should be deducted due to the impact of the exceptional circumstance of the COVID-19 pandemic.

[46] The Respondent submits that two periods of time should be deducted as directly related to the delay caused by the pandemic:

(1) the period of time caused by an administrative scheduling policy required because JPTs are not presently conducted in-person (20 days). This is a period of time from when the JPT has been conducted and the parties are ready to set a trial date but must schedule and hold a TSC with the trial coordinator in order to schedule the date; and

(2) 90 days, accounting for the ongoing effect of the pandemic-caused backlog on Court resources.

[47] The Applicant submits that an administrative scheduling policy that adds delay to the process should not be deducted. The Applicant further submits that there is not a quantifiable amount of time to be deducted due to the COVID-19 pandemic.

[48] In my view, the 20-day period of time from when the parties were ready to set a trial date after conducting the JPT to when the trial conference could be heard is appropriately considered as delay attributed to the exceptional circumstance of the COVID-19 pandemic. Because the parties are not in the courthouse, a system must exist to allow the Trial Coordinator's Office to receive requests to set trial dates, prioritize those requests, schedule trial conferences, and hold those conferences. This approach is logical, sensible, and effective. The JPT in this case was held in June of 2021, immediately following a period of time when trial courts closed in order to keep participants out of the physical buildings (a particularly delicate point of the COVID-19 pandemic). The parties were not in the courthouse due directly to public health measures in place to protect everyone's health. Deducting those 20 days leaves 529 days for further consideration.

[49] 529 days below the 18-month presumptive ceiling. However, in the event that I am incorrect in my finding that the 72 days following the JPT is delay from which the defence cannot benefit, I will consider whether the Crown has established that an additional period of delay should be deducted due to exceptional circumstances.

[50] The Respondent submits that this Court should follow the periods of delay found by other Courts in similarly-timed cases (in particular, in my own case R. v. Ajgirevitch, 2022 ONCJ 237, where I deducted 90 days).

[51] The Applicant submits that the Crown has failed to provide evidence that demonstrates the specific impact on this case and urges that I follow the decision of P.F. Monahan J. in R. v. Greenidge, 2021 ONCJ 57, that it is incumbent upon the Crown to establish on a balance of probabilities that the amount of delay that the Crown seeks to deduct was in fact caused by the pandemic.

[52] Professor Paciocco explains in her paper Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19, Osgoode Hall Law Journal 57.3 (2021) 853, at 839 https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss3/10, putting a number on “Covid delay” is arguably impossible:

…. systemic mitigation efforts cannot be meaningfully assessed within the Jordan framework. There are overwhelming problems associated with asking judges to scrutinize institutional responses to COVID-19 when adjudicating individual section 11(b) claims, ranging from a lack of data to separation of powers considerations. …

In that article, Professor Paciocco advocates for an alternative s.11(b) remedy of a sentence reduction. She argues that an alternative to a stay is necessary because delay caused by the systemic impacts of the COVID-19 pandemic do not fit squarely into the Jordan framework of analysis.

[53] This difficulty in quantifying the time and assessing what the evidentiary foundation to prove the appropriate time should be is evidenced in the different treatment of systemic COVID-19 delay in the case law. Most courts have expressly rejected the idea of there simply being a blanket exemption. As noted by Professor Paciocco, a blanket exemption would relieve all participants in the justice system from making best efforts to bring cases to trial in a reasonable time, which is directly contrary to the purpose of Jordan.

[54] In R. v. Korovchenko, 2022 ONCJ 388, Henschel J. found that three months was an appropriate amount of time to deduct (including the time for a TSC: I have dealt with the TSC time separately as, in my view, it is more easily quantifiable). She did not have direct evidence of the specific impact on her case:

[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.

[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.

[55] In R. v. Hazizaj, 2022 ONCJ 386, W.B. Horkins J., deducted approximately seven months delay for the period of time in which COVID-19 prevented the Courts from offering trial dates to out-of-custody matters (which occurred post-charge in that case). Ultimately, the net delay remained over the presumptive ceiling and charges were stayed.

[56] In R. v. Meawasige, 2022 ONCJ 190, Thomas J. dismissed a s. 11(b) application in a case with a net delay of 18 months and 22 days on the basis that the Crown had not provided evidence of any effort to mitigate the delay in bringing the case to trial. I note this is distinguishable from the case before me where I have found that the Crown specifically attempted to mitigate delay for G.S. by seeking earlier trial dates.

[57] In R. v. Brown, 2021 ONCJ 663, the Crown proposed attributing the six months during which Court operations were essentially suspended in 2020. Bhabha J. did not adopt that blanket approach because she had evidence that a significant reason for delay in that case was delayed disclosure.

[58] In R. v. Farooq, Scarborough OCJ, unreported, Kelly J. held that 20 days was an appropriate amount to deduct in a case that had commenced in June of 2020, and was set for a six-day trial scheduled to end in April of 2022. He based the 20 days on a consideration of the OCJ statistics for Scarborough covering January 2011 to September 2021, which demonstrated an increase in the average time for cases to be tried.

[59] In R. v. Hamidi, Scarborough OCJ unreported, Chapman J. held that 60 days was a reasonable (though likely modest) amount of time to deduct.

[60] In R. v. Ajgirevitch, 2022 ONCJ 237, I had evidence that the time to trial in the Scarborough Courthouse had expanded from an average of nine months to an average of 12 months during between the start of the pandemic and the spring of 2022 (when that application was argued). I concluded that Covid was the cause and therefore attributed the difference of three months to the impact of the pandemic.

[61] I do not have the same evidence I had before me in that case, but I do note a number of similarities in the timing. The JPT in that case was held June 23, 2021, just over a week after G.S.’s. Two days were required for trial, just as for G.S. The TSC was held July 6, 2021, and the dates given for trial were June 22 and 23, 2022, or more than 11.5 months later. G.S.’s TSC was held September 15, 2021, and the first date offered for trial was October 3, 2022 (the Crown was not available, hence the October 17 date), approximately 12.5 months later. It seems to me an inescapable inference that the time to trial for G.S.’s matter remained at least 12 months from TSC.

[62] Courts are understandably struggling with an evidentiary absence tied to the difficulty in assessing the specific differences in delay caused by the rescheduling of so many matters. But having found that the pandemic is an exceptional circumstance which had an impact on this specific case, in my view it would be an absurd result to then fail to deduct any periods of time on the basis that the Crown has not proven the impact to some level of statistical accuracy.

[63] Taking notice of the Court processes in the Scarborough Courthouse, my prior finding in R. v. Ajgirevitch, 2022 ONCJ 237, and the periods of time attributed by Chapman and Kelly JJ. in the Scarborough Courthouse in other matters, I am of the view that it is appropriate to deduct 90 days. In my view, this period of time reflects a realistic estimate of the impact of COVID-19 on the scheduling of new matters in the Scarborough Courthouse through the fall of 2021.

[64] This is not a blanket exemption. Cases that have entered the system later in time, or been set down for trial in 2022, should be held to a different standard. But the standard that would be expected of a matter set down for trial today cannot be the same that is applied to a case that was set down for trial in September of 2021.

[65] The Applicant framed the issue as “is there evidence that G.S.’s trial would have been reached earlier if not for the COVID-19 pandemic.” In my view, the only available conclusion is that it would have been.

[66] Deducting a further 90 days from the total results in 439 days, or under 14.5 months.

E. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.

[67] Although not pressed in oral argument, the Supplemental Factum of the Applicant argued that the defence took meaningful steps that demonstrate a sustained effort to expedite proceedings and that the case took markedly longer than it reasonably should have.

[68] A review of the transcripts of the set date appearances demonstrates why this argument fails. Multiple requests for delay were caused by the continuing pre-trial discussions sought by the Applicant. The delay after the JPT to continue resolution discussions could have been avoided by setting an immediate trial date (which would not have precluded on-going resolution discussions from continuing). These acts are not “meaningful steps that demonstrated an effort to expedite the proceedings.”

[69] Nor is there anything in the stages of disclosure or in the time between the TSC and the trial date which would allow me to conclude that the case took markedly longer than it reasonably should have. The intake phase was extended by 90 days due to requests to postpone for continuing pre-trial or resolution discussions. But for that period of time, the intake portion of the case would have been approximately four months, a very reasonable period of time for a case such as this. While the Crown was not available for the first trial date offered (October 3, 2022), the delay occasioned by that unavailability was two weeks. That can hardly be described as markedly longer than reasonable.

[70] In conclusion, I am not satisfied that the Applicant has established a breach of s.11(b) of the Charter and the Application is dismissed.

Released: September 22, 2022 Signed: Justice R. Wright