ONTARIO COURT OF JUSTICE DATE: 2022 03 01 COURT FILE No.: Halton Info# 1211-998-19-3789-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RYAN TOPP
Before Justice Scott Latimer Heard on February 4, 2022 Reasons for Decision released on March 1, 2022
Counsel: R. Mahoney, counsel for the Crown A. Karzai, counsel for Mr. Topp
LATIMER J.:
[1] This decision relates to an application to stay trial proceedings for delay. Ryan Topp was charged with impaired driving in October 2019. In early 2022, on the second date set for his trial, he brought a section 11(b) Charter application. As can be discerned from these dates, Mr. Topp’s time in the provincial court largely overlapped with the COVID-19 pandemic. While the pandemic caused some of the delay in this case, the system itself bears responsibility for 566 additional days of net delay (or 18.6 months, using the formula adopted by the Court in R. v. Shaikh, 2019 ONCA 895, at para. 33). For the reasons that follow, I allow this application and stay these proceedings.
I. Analysis
[2] In July 2016, the Supreme Court of Canada leveled the s. 11(b) cityscape and rebuilt anew. In R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the majority opinion eschewed the old reasonableness model for an approach premised on presumptive ceilings of delay. For trials in the Ontario Court of Justice, an eighteen-month ceiling was constructed. The relevant total time for consideration is total delay minus defence delay. This creates what is referred to as “net delay”. If net delay is below eighteen months, the time to trial is presumptively reasonable and it is for an applicant to otherwise convince a court that it is nevertheless unreasonable. If the net delay exceeds eighteen months, a stay of proceedings must follow unless the Crown can convince the court that the delay is reasonable in light of the existence of exceptional circumstances: R. v. Coulter, 2016 ONCA 704, at paras. 34-40; Jordan, at paras. 68-80.
[3] In order to characterize delay in this case, it is useful to take a chronological approach. The total time this case has been in the system can be divided into the following stages:
(1) Intake and case management (October 14, 2019 to April 20, 2020) (2) COVID-related court shutdown (April 20 to November 30) (3) Trial date #1 (November 30 to June 7, 2021) (4) Trial date #2 (June 7 to Jan 5, 2022) [1]
(1) Intake and case management (October 14, 2019 to April 20, 2020)
[4] The applicant’s case progressed normally over the first four months. Disclosure, including the breath room video, was provided on December 19, 2019. A Crown pre-trial meeting was set for February 24, 2020. All of this time counts towards net delay. Following March 9, however, the parties part company.
[5] On March 9, the applicant’s representative advised that a Crown pre-trial had taken place and that a request for further disclosure had been made. I am advised by counsel on this application that what was being sought was what is commonly called the “cells video”, which consists of a series of recordings of the applicant while under detention at the police station. March 9 was the first time either Crown or defence had asked the police to disclose these recordings. The information was adjourned to April 20 for receipt of the material and a follow-up Crown pre-trial meeting. The recordings were ultimately made available to the applicant’s counsel on April 22. [2]
[6] The applicant’s position is that he was entitled to the cells video as primary disclosure and his request should not be treated as defence delay. In the alternative, he submits that only a portion of the time between March 9 and April 22 be characterized as defence delay. The Crown respondent focuses on what it views as an unnecessary request for a further Crown pre-trial, and stresses that the state was ready to set this matter down for trial on March 9.
[7] In my view, the applicant was entitled to the cells video as part of primary disclosure. The pursuit of such disclosure cannot be characterized as defence-created delay. The fact that the applicant had to specifically request it, and the Crown needed an additional six weeks to obtain it from the police service, amounts in this case to delay caused by the disclosure process.
[8] It is relatively clear to me, having sat in this jurisdiction for two years, that non-breath room video recordings are not automatically provided in disclosure. They are only provided upon request. Having structured matters as such, the Crown cannot avoid responsibility for the resulting delay. This situation is similar to the one discussed in R. v. M.G.T., 2017 ONCA 736, at paras. 149 to 151, regarding 911 recordings. The evidence is similarly relevant; while 911 recordings are often the first statement made by witnesses to an alleged criminal act, cells videos are real-time, observable evidence of the physical movement and mannerisms of impaired driving suspects.
[9] These recordings regularly contain evidence of interest to impaired driving litigants. If the applicant stumbles or otherwise has difficulty with physical mobility and/or dexterity, the Crown points to it as evidence of impairment. If he does not, the defence claims it as exculpatory. The frequently litigated “Mok issue” [3] also involves scrutiny of the cells video. Responsible counsel would need to receive this disclosure and review it before their client can make an informed decision about whether to raise this issue at trial. If such a motion is brought, it would take court time and need to be factored into the trial estimate established at the judicial pre-trial. Any delay in providing this material, in this particular context, cannot be characterized as defence-created delay.
[10] Overall, the entire 190-day period in this stage will form part of the total net delay.
(2) COVID-related court shutdown (April 20 to November 30)
[11] The parties largely agree that this time period can be characterized as exceptional as a result of the COVID-19 pandemic. I agree with their characterization. The entire court system had to pivot to remote proceedings. Trials did not resume until August 2020 and, when they did, the court’s focus was on in-custody matters that had been delayed by the trial court shutdown earlier in the year. In the circumstances of this case, I am satisfied the Crown has established that this entire seven-month, ten-day period should be classified as an exceptional circumstance related to the pandemic. [4]
(3) Trial Date #1 (November 30 to June 7, 2021)
[12] On November 30, trial dates were confirmed for June 7, 2021. The parties estimated that the case would take three days to try. The trial verification form, attached to the information, reflects that the first dates offered were May 11, 12, 13. The Crown was available on those dates, the defence was not. The court then offered June 1, 2, 8 and, again, the Crown was available but the defence was not. June 7, 8, 9 were subsequently chosen as the dates for the applicant’s in-person trial.
[13] The Crown has satisfied me that the system was reasonably available starting May 11, and that the twenty-seven days following should be characterized as defence delay. The 163 days between November 30 and May 11 will count towards net delay.
(4) Trial Date #2 (June 7 to January 5, 2022)
[14] This is the most consequential time period for present purposes. The three-day trial set to begin June 7 was set in-person. Mr. Topp did not waive his statutory right to be present during his trial: see s.650 of the Code; R. v. Chizanga, 2020 ONSC 3090, at para. 5; R. v. Fecteau (1989), 49 CCC (3d) 534 (Ont. H.C.), at 540. Prior to June 7, the Crown applied to have the witnesses and prosecuting counsel appear remotely. Justice Cooper, at the time the anticipated trial judge, granted the motion.
[15] On June 7, Mr. Topp and his lawyer arrived at the Burlington courthouse to begin the trial. Justice Cooper was sitting in-person and had three trial matters on his docket. Mr. Topp’s matter was not given priority and another case began in Cooper J.’s court. At approximately 11:00 a.m., the parties were given three options from the trial coordinator: (1) proceed remotely in front of me, as my court had become available, (2) wait and see if Cooper J.’s court became available, or (3) adjourn the matter to set new trial dates.
[16] As the June 7 transcript reveals, option (3) was chosen. The parties appeared before me sometime in the morning and, after clarifying that this proceeding was intended to be hybrid – with some participants remote but others, including the applicant, appearing personally – I adjourned the matter on the understanding that new trial dates would be set in short order. Those dates were ultimately set for November 8 for a statement motion and January 4 and 5, 2022 for trial.
[17] A pillar of the Crown’s response to this delay application is that a trial, albeit a remote one, was offered to the applicant on June 7 and his failure to accept that form of trial renders all subsequent time defence delay. The respondent summarizes this position in paragraph 6(i) of its factum:
The accused’s trial was scheduled to commence on June 7, 2021, however other priority matters were stacked in court on that date. The accused was given the option of converting the matter into a remote trial, the only adjustment being that he and counsel would have to appear via Zoom. The accused refused, and the matter was adjourned. The matter could have been accommodated and no further dates would need to be set had the accused attended remotely (something he and his counsel had been able to do for every other appearance since 2020). As a result, the delay between June 7, 2021 and January 4, 2022 ought to be categorized as defence delay (211 days).
[18] Before addressing this submission, it is useful to take a step back and assess the state of Halton’s provincial court system as of June 7, 2021. According to population demographics information found on the Halton Region website, over 600,000 people currently reside in Halton. [5] Those residents are served by two Ontario Court of Justice locations, one in Milton and the other in Burlington. Each location includes in-person trial courtrooms.
[19] On October 15, 2020, however, the Milton courthouse suspended all in-person court proceedings for public health reasons. The public notice provided by the Chief Justices of the Superior and Ontario Courts of Justice stated:
Mould has been found and remediated in the Milton courthouse in the past. The Ministry of the Attorney General has recently informed the Courts of a new discovery of mould in the Milton courthouse. While air quality tests undertaken by experts suggest the air quality is safe, the SCJ and OCJ are concerned about the reoccurring discovery of mould in this building. Accordingly, both Courts have suspended in-person court hearings and processes at the Milton courthouse pending the completion of a comprehensive, independent health and safety investigation of the entire courthouse, which will include the remediation of any hazards identified. [6]
The Milton courthouse remained closed on June 7, 2021, when the applicant’s trial was scheduled to begin. [7]
[20] The “deplorable” state of the Milton courthouse has been widely discussed over the past decade and is a notorious fact in the justice system. [8] The closure of 50% of the Halton provincial court’s physical space because of building-related public health issues is not an exceptional circumstance; it is an inevitable by-product of the continued use of an aging and ill-suited physical structure.
[21] This backdrop surrounding the unavailability of the Milton courthouse helps explain why, on June 7, 2021, there was insufficient court resources at the Burlington courthouse to accommodate the multiple in-person proceedings booked that day. As a result, the applicant’s trial could not proceed. What the Ontario Court has done, in an attempt to process the significant number of cases vying for trial time in Halton Region, is to make Zoom courtrooms available for accused persons who waive their right to an in-person trial. As it happens, and as the June 7 transcript reveals, I was sitting in such a courtroom that day and, after my trial docket resolved, was in a position – subject to the applicant waiving his right to be personally present - to preside over the applicant’s trial.
[22] The respondent submits that the applicant’s continued insistence on an in-person proceeding (with certain participants joining remotely) created defence delay under Jordan. He could have had a Zoom trial in June, the Crown submits, but he chose instead to adjourn and wait for an in-person proceeding.
[23] I have reservations about this legal submission, as I remain unconvinced that an applicant must sacrifice one legal right (to attend his trial personally) in order to preserve another (his constitutional right to a trial within a reasonable time). However, I do not come to any firm conclusion on this point, as it is unnecessary to resolve this issue in this particular application.
[24] In my view, it is unnecessary because there was no functional way for the applicant to actually participate in a Zoom trial on June 7, even if he had agreed to such an approach. The applicant had physically attended the Burlington courthouse that morning for an in-person trial proceeding. He lived elsewhere in the region, and his lawyer’s office was in Toronto. The Burlington courthouse has no capacity to provide private space – with video equipment or otherwise – for the applicant and counsel to participate in a Zoom proceeding. Having considered the matter on this application, I conclude that the option of a Zoom proceeding on June 7 was not feasible for these reasons. No defence delay accrues as a result of the applicant’s decision not to waive his right of personal presence under s. 650 of the Code.
[25] As a result, the 213 days between June 7, 2021 and January 5, 2022 count towards net delay.
II. Total net delay
[26] 190 days (stage 1) + 163 days (stage 3) + 213 days (stage 4) = 566 days
566 days divided by 30.417 = 18.6 months of net delay
[27] This net delay exceeds eighteen months for this non-complex case. It is largely the result of disclosure delay and an in-person trial courtroom not being available to the applicant until January 2022. In the circumstances, a stay of proceedings is the only available remedy.
III. Disposition
[28] The Criminal Code and Highway Traffic Act charges are stayed pursuant to section 24(1) of the Charter.
Released: March 1, 2022 Justice Scott Latimer
Footnotes
[1] On January 4, defence counsel was ill and the matter could not proceed. This application was adjourned until February 4. The applicant conceded that the time following January 4, 2022 is not relevant for s. 11(b) purposes. [2] Ms. Mahoney responsibly acknowledged this disclosure timeline during submissions. [3] This issue – commonly raised in Halton Region – alleges a privacy violation when the state records a detainee using the washroom while in the cells area of the police station: R. v. Mok, 2015 ONCA 608. [4] While there is also acknowledged defence delay during some of this time period, that delay overlaps with what I have determined to be exceptional circumstances because of the pandemic and is therefore irrelevant for present purposes. No matter the ultimate characterization, this time period is not being added to the net delay total. [5] www.halton.ca/getmedia/869b326d-d4e2-4819-a3b5-24ae62a97f7b/LPS-demographics-population.pdf.aspx?ext=.pdf [6] www.ontariocourts.ca/en/milton-courthouse.htm [7] It remains closed as of March 1, 2022, although is scheduled to reopen later this month. [8] See the comments of the Chief Justice of the Superior Court of Justice during her speech at the 2014 Opening of the Courts: regarding “the deplorable condition of the Milton courthouse and our clear need for new facilities there”: www.ontariocourts.ca/scj/news/speeches/oc/2014ocs; see also the repeated comments made by senior members of the Halton OCJ, such as R. v. Ibrahim, [2015] OJ No. 1244 (CJ), aff’d [2016] OJ No 3605 (SCJ); R. v. Drobotenko, [2015] OJ No 4956 (CJ); R. v. Abreu, [2015] OJ 231 (CJ).