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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: November 1, 2022

BETWEEN:

HIS MAJESTY THE KING

— AND —

S. M.

Before: Justice J. Sickinger

Heard on: September 29th, 2022

Oral Reasons for Judgment given on: October 31st, 2022

Written Reasons released on: November 1st, 2022

Counsel: M. Tawdrous.............................................................................................. counsel for the Crown E. Battagaglia.............................................................................. counsel for the applicant S. M.

SICKINGER, J.:

[1] Mr. M. brings an application or a stay of proceedings pursuant to ss.11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. Mr. M. is charged with two counts of sexual assault. The information was sworn on December 2nd, 2021, the trial is scheduled to end on July 28th, 2023.

BACKGROUND

[2] On December 14th, 2021 Counsel attended court for the first appearance. The Crown advised that disclosure was available. The matter was adjourned for Counsel to receive disclosure and schedule a Crown Pretrial.

[3] On January 18th, 2022 Counsel attended court and spoke to the matter. Counsel indicated that they had received some initial disclosure the week before and required further time to review disclosure.

[4] On February 15th, 2022 Counsel attended court and asked to be removed from the record, new Counsel also attended and was prepared to go on record. New Counsel indicated that he had already spoken with the assigned Crown, and that a cellphone extraction of the Accused's phone was outstanding. The matter was adjourned for the Crown to provide an update on the status of the cellphone extraction.

[5] On March 1st, 2022 Counsel attended court and spoke to the matter. He indicated that he had spoken with the assigned Crown regarding the outstanding cellphone extraction. He was advised that a warrant was granted on February 21st for the examination, and it was anticipated to be done shortly.

[6] On March 29th, 2022 Counsel attended court and spoke to the matter. He indicated that the cellphone extraction report was still outstanding. He had spoken with the assigned Crown, who advised the cellphone examination was underway as of March 17th, 2022.

[7] On May 10th, 2022 Counsel attended and spoke to the matter. Counsel indicated that the cellphone extraction report remained outstanding. Counsel further indicated that a DNA sample had been taken from his client, pursuant to a warrant, and the results of any analysis of that sample were also outstanding. Counsel had inquired of the assigned Crown as to the status of those results, and had not received a response. Counsel was advised by the Court to set a Judicial Pretrial.

[8] On June 1st, 2022 Counsel attended and spoke to the matter. A judicial pretrial was held that day and the matter was adjourned in order to be brought into the trial scheduling court.

[9] On June 29th, 2022 Counsel attended the trial scheduling court. The matter was set down for a 5-day trial from July 24th - 28th, 2023. These were the first dates offered by the Trial Coordinator.

[10] The total delay in this case is just shy of 20 months. Defence Counsel argued that the only issue before this court was whether or not there was any delay attributable to the COVID-19 pandemic. Defence Counsel further argued that the Crown was slow in obtaining warrants for necessary disclosure and did not take steps to mitigate future potential COVID-19 backlog delays by expediting disclosure and saving time on the front end.

[11] This Court was advised by Counsel that as of the date of this application the outstanding cellphone extraction report had not yet been disclosed and Counsel could not determine if it would be necessary to bring a s.278 application to make use of messages, from the Complainant, Counsel believed would be found on his client's phone.

[12] The Crown argued that the Court should subtract 3 months from the net delay to account for the COVID-19 backlog, relying on R. v. Korovchenko, 2022 ONCJ 388. The Crown argued that this case quantified the amount of COVID-19 backlog in this jurisdiction at 3 months. The Crown was unable to point to any portion of the evidentiary record that illustrated that there was delay due to COVID-19 backlog in this matter. The Crown also declined the opportunity to seek an adjournment to augment the evidentiary record with some form of evidence about the effect of the COVID-19 backlog in this jurisdiction (see R v. Korovchenko, 2022 ONCJ 388).

LAW AND ANALYSIS

[13] The Supreme Court in R. v. Jordan, 2016 SCC 27 set a ceiling of 18 months for provincial court matters and 30 months for cases going to trial in the Superior Court, after a preliminary inquiry. Any delay above this ceiling is presumed to be unreasonable. The Court stressed that the ceiling is not an aspirational target, but rather a cut off above which delay becomes intolerable (see R. v. Jordan, 2016 SCC 27, at para. 56).

[14] The Court in R. v. Jordan, 2016 SCC 27 stressed that a failure to deal with criminal trials in a timely matter offends the public’s sense of justice, holding that tolerating trials after long delays does not further the interests of Justice. (see R. v. Jordan, 2016 SCC 27, at paras. 25 & 28).

[15] The Court criticized the previous 11(b) regime at paragraph 37 holding:

"Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay" (see R. v. Jordan, 2016 SCC 27, at para. 37).

[16] The first step in the Jordan analysis is to calculate the net delay, which is the total delay (minus any defence delay) from the charge to the anticipated end of the trial. If the delay is above the ceiling it is presumptively unreasonable (see R. v. Jordan, 2016 SCC 27, at para. 47).

[17] Defence delay has two components: (1) that arising from defence wavier; and (2) delay caused solely by the conduct of the defence. Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (see R. v. Jordan, 2016 SCC 27, at paras. 61 & 63: and R v. Coulter, 2016 ONCA 704, para. 43).

[18] Defence-caused delay is comprised of situations where the acts of the Defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay. Where the Court and the Crown are ready to proceed but the Defence is not, the Defence will have directly caused the delay. Periods of delay where the Court and Crown are not available will not constitute defence delay, even if the Defence is not available (see R. v. Jordan, 2016 SCC 27, at paras. 63 & 64: and R v. Coulter, 2016 ONCA 704, para. 44).

[19] Defence actions legitimately taken to respond to the charges are not defence delay. The Defence must be allowed preparation time even when the Court and the Crown are ready to proceed. Defence requests which are not frivolous will not amount to defence delay. The court accounted for procedure requirements inherent in setting trial dates when calculating the ceiling (R. v. Jordan, 2016 SCC 27, at para. 65).

Delay Above the Presumptive Ceiling

[20] If the net delay exceeds the ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (see R. v. Jordan, 2016 SCC 27, at paras. 47 & 71: and R v. Coulter, 2016 ONCA 704, at para. 34).

[21] 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 (see R. v. Jordan, 2016 SCC 27, at para. 69).

[22] It is not enough for the Crown, after delay has exceeded the ceiling, to point to a past difficulty to excuse delay. The Crown must demonstrate that it took reasonable step to avoid and address the problem before the delay exceeded the ceiling. This includes implementing appropriate case management procedures (See R v. Jordan, 2016 SCC 27, at para 70).

[23] A period of delay caused by a discrete exceptional event should be subtracted from the period of delay for the purpose of determining whether or not the ceiling has been exceeded. Any portion of the delay that could reasonably have been mitigated by the Court or Crown should not be subtracted. If the remaining delay is above the ceiling then a stay must be entered. (see R. v. Jordan, 2016 SCC 27, at paras. 75 & 76).

[24] The presence of exceptional circumstances is the only basis upon which the Crown can justify a delay above the presumptive ceiling. The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex. Chronic institutional delay, or the absence of prejudice to the accused must also not be relied upon. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay (see R. v. Jordan, 2016 SCC 27, at para. 81: and R v. Coulter, 2016 ONCA 704, at para. 47).

Delay Due to the COVID-19 Backlog

[25] There is no doubt that the COVID-19 pandemic is an exceptional circumstance. It has affected every facet of the court system in a significant manner at some point in time. That being said, the particular effect in each instance is something that must be looked at on a case-by-case basis. While the initial court closures are long behind us, the backlog remains. That does not mean that a blanket deduction that can be made in every case to address the ongoing backlog.

[26] In s.11(b) applications that dealt with the earlier period of the pandemic it was quite clear, from the record, with regard to court closures what delay was attributable to COVID-19. As we move further afield from the early court closures it becomes less clear what ongoing delay is able to be deducted as due to the COVID-19 pandemic.

[27] The Crown bears the burden of demonstrating, on the evidentiary record, what delay was due to the discrete event that is the COVID-19 pandemic. The Crown must further demonstrate that delay could not have been mitigated. In order for this court to grant a deduction the Crown must establish a “causal link” between the pandemic and the delay the Crown is asking to deduct (see R v. Hinterberger, 2022 ONSC 4860, at para 44; and R v. Bui, 2021 ONCJ 379, at paras 26, 27). As Justice Goodman Stated in Hinterberger “covid 19 does not give the Crown a free pass from s.11(b) challenges, instead a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it” (see R v. Hinterberger, 2022 ONSC 4860, at para 52).

[28] The Crown relies on Korovchenko and asks this court to find that the backlog in scheduling trials in this jurisdiction is 3 months. In that case no evidence was called by the Crown with respect to the quantum of delay that was attributable to the COVID-19 backlog. The Court subtracted 3 months from the net delay. The Court included in that 3-month period the amount of time taken for the matter to be brought into trial scheduling court. The Court further relied on its own knowledge of the amount of time it took to set a simple two-day impaired matter for trial pre-COVID vs. the time required in that matter. In that case the net delay still exceeded the ceiling, and the charges were stayed (see R v. Korovchenko, 2022 ONCJ 388).

[29] A number of other courts have recently looked at the issue of quantifying COVID delay. In Bohnsack the court held that “[h]ere, a blanket approach devoid of contextual analysis would be contrary to the approach mandated in Jordan.” (See R v. Bohnsack, [2022] O.J. No 3482, at para 60).

[30] The court in Bohnsack considered the procedure necessary to quantify delay due to the COVID-19 backlog. The Crown in that case did not provide any statistical evidence to assist in the quantification of the delay. The Court held that it would not make an arbitrary determination of the delay caused by a scheduling backlog and declined to deduct any time from the net delay.

[31] In Schardt the court held it was not sufficient for the Crown to simply point to the pandemic as a discrete event to justify delay stating:

"As stated in R. v. Greenridge, 2021 ONCJ 57, at paras. 26 and 30, it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay).

A finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period: R. v. Ali, 2021 ONSC 1230, at paras. 40 and 41. [emphasis added]"

This analysis was also adopted by the court in Bohnsack (see. R v. Bohnsack, [2022] O.J. No 3482, at para. 61, and R v. Schardt, 2021 ONSC 3143, at paras. 68, 69).

[32] In Y.D. the Crown called no evidence to assist in quantifying the delay due to the COVID-19 backlog. The Court accepted that the COVID-19 pandemic did indeed cause disruptions to the Criminal Justice System and created a backlog of cases. The Court then found that nothing in the evidentiary record demonstrated what was done to try to mitigate the delay in the case before the court and justify the deduction of a period of time as due to the backlog (see R v. Y.D., 2022 ONCJ 376, at paras. 32 & 33).

[33] In McCudden the Court held that the COVID-19 pandemic had undeniably created a backlog of cases and caused delay in the criminal justice system. The Court then continued, stating: “courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic”. The Court ultimately found that the Crown had failed to adduce any evidence that would demonstrate that the portion of time they sought to deduct was indeed as a result of the discrete event that was the COVID-19 pandemic (see R v. McCudden, 2022 ONCJ 138, at paras. 64 & 65).

[34] In Ajgirevitch the Crown filed an affidavit setting out the difference in time it took to set similar matters down for trial before and after the COVID-19 court shutdowns; demonstrating an increase of 3 months which was attributed to the COVID-19 backlog. The affidavit also set out measures that had been undertaken to mitigate this backlog and reduce the time to trial. This information permitted the trial judge to quantify the backlog attributable to the COVID-19 pandemic and deduct the appropriate amount of time from the net delay (see R v. Ajgirevitch, 2022 OJ No. 2299).

Analysis

[35] The total delay in this case is 19 months and 26 days. Neither party argues that any defence delay should be deducted. This Court agrees that there is no defence delay and the net delay is there for 19 months and 26 days. The only remaining question is whether or not any delay should be deducted as attributable to the COVID-19 backlog.

[36] The Crown argues that this court should follow Korovchenko and deduct 3 months as delay attributable to the COVID 19 backlog. This would bring the delay below the 18-month ceiling in Jordan. No evidence was called by the Crown in Korovchenko with respect to the quantum of any backlog in scheduling trial dates created by the COVID-19 pandemic. The Court in that case found, based on the record and knowledge of the time it would have taken to schedule a similar trial prior to COVID, that they could quantify the delay at 3 months. The charges in this case are not similar in nature and the length of the trial is not the same. I cannot find that I can rely on Korovchenko as a statement of the average length of the COVID-19 backlog in York Region. Further, the delay must be analyzed on a case-by-case basis, findings in other cases are not necessarily illustrative of the backlog in one particular case.

[37] The Crown pointed to no portion of the evidentiary record that demonstrated a causal link between the COVID-19 pandemic and any delay in this case. Counsel was diligent and brought this s.11(b) application 10 months in advance of the trial dates. I was not advised of any steps taken by the Crown to try to secure earlier trial dates and bring this matter back under the Jordan ceiling. There was certainly time for them to do so.

[38] This Court suspects that there is delay here attributable to the COVID-19 backlog created by the mandated court shutdowns earlier on in the pandemic. If that delay were properly quantified, based an evidentiary record, it may very well be that the delay here would fall below the Jordan ceiling. That being said, the Crown has failed to place a sufficient evidentiary record before the Court to allow this Court to make a finding as to the quantum of any delay. To subtract a blanket period of delay, without a proper evidentiary framework, would accomplish no more than to have this Court place a thumb on the scale in order to save this case from a stay. That is not the proper role of the courts and to do so would bring the administration of justice into disrepute in this jurist's opinion.

[39] I find that I cannot, on the basis of the record before me, quantify any period of delay as attributable to the COVID-19 backlog and therefore will deduct no further delay from the net delay.

[40] I grant the application and order a stay of proceedings.

Released: November 1st, 2022 Signed: Justice J. Sickinger