Court File and Parties

DATE: 2023·08·30 COURT FILE No.: 21-45003705 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

MARIA VOROB’EVA

Before: Justice David Porter Reasons on Stay Application released on: August 30, 2023

Counsel: M. Schwartz, for the Crown B. Brody, for the Defendant

Porter J.:

[1] Counsel for Ms. Vorob’eva (“the Applicant”) has applied for a stay of proceedings based on an alleged breach of the Applicant’s right to be tried within a reasonable time guaranteed by section 11 (b) of the Charter. The application was argued on July 26, 2023 and my decision reserved to today’s date.

[2] The Court of Appeal in R. v. Coulter, 2016 ONCA 704 at paras. 34-41 summarized the steps to be taken in considering an application under s.11(b) of the Charter pursuant to the Jordan framework:

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] 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, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] 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, para. 75).

[39] 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).

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

[3] The main issues on this application were the following: (i) What is the impact on the total delay of the fact that, due to a staff shortage, the original trial dates of June 14 – 15, 2023 could not be fully utilized, and the available court closed on June 15, 2023, resulting in the re-scheduling of the trial to October 31, 2023 and November 7, 2023? (ii) What effect should the additional delay to the October 31 and November 7, 2023 continuation dates have on the calculation of the net delay? (iii) Is the Crown entitled to a generalized “exceptional circumstance” deduction in the total delay as a result of the ongoing effects of the Covid-19 pandemic and the backlog of cases which it created?

Discussion

[4] The original trial dates of June 14 and 15, 2023 were scheduled on June 9, 2022, in relation to impaired and over 80 charges in an Information sworn on November 3, 2021.

[5] The total delay to the original trial date was 589 days. Defence counsel was unavailable for trial dates available to the Crown and court in March, April and May 2023, a total of 92 days.

[6] As the court makes clear in R. v. Jordan, at para. 65: “… defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.”

[7] The Supreme Court summarized the requirements of deductible defence delay as follows in R. v. Cody, 2017 SCC 31 at para. 30: “The only deductible defence delay under this component is, therefore, 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.”

[8] I find that, apart from the period of time conceded to be defence delay, due to counsel’s unavailability for trial in the period March to May 2023, none of the other time periods prior to the original trial dates were “defence delay” pursuant to R. v. Jordan, 2016 SCC 27, at para. 65, as they were all reasonable actions taken by the defence to respond to the charges.

[9] Accordingly, the net delay to the original trial dates is 589 - 92 = 497 days, or 1 year and 132 days, or approximately 1 year, 4 months, and 12 days.

[10] The trial began on June 14, 2023, but due to staff shortages, namely the absence of an available clerk for the court, only about 1.5 hours of court time was utilized on June 14, 2023 once a courtroom became available. The trial was scheduled to continue on June 15, 2023 but the assigned court was closed due to the ongoing staff shortage (absence of court clerks) at the Ontario Court of Justice Toronto.

[11] On June 15, 2023, the trial judge, Crown, defence counsel, and witnesses were all available, as was an assigned court room. The sole impediment to proceeding was the shortage of court clerks, which has been an ongoing issue at the Ontario Court of Justice Toronto since it opened in March 2023, resulting in the closure of the court room assigned for this trial.

[12] When the case could not proceed on June 15, 2023, counsel promptly obtained continuation dates for the trial as follows: the section 11 (b) application was scheduled for 9:00 a.m. July 26th and heard at that time, and trial continuation dates were obtained for October 31, 2023 and November 7, 2023.

[13] The total additional delay beyond the original trial date’s net delay is 145 days, the period from June 15, 2023 to the second trial date of November 7, 2023. This delay will be added to the net delay to the end of the scheduled trial date of June 15, 2023, unless any of the additional delay is deductible as defence delay or as an exceptional circumstance. When added to the net delay as of June 15, 2023, the total net delay to the anticipated end of the trial is 497 days plus 145 days = 642 days, or 1 year and 277 days, or approximately 1 year, 9 months and 7 days.

The Effect of the Unavailability of a Court Due to Staff Shortages on June 14 and 15, 2023

[14] The Crown is responsible for the provision of facilities and staff required to ensure that persons are tried in a reasonable time: R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1225, R. v. Godin, 2009 SCC 26, at para. 16.

[15] In my opinion, the delay from June 15, 2023, the originally scheduled last day of the trial, to November 7, 2023, the currently scheduled last day of the trial, is solely attributable to the actions of those responsible for the administration of the courts, and therefore is Crown delay.

[16] It is the result of the ongoing, chronic, staff shortage at the Ontario Court of Justice Toronto where, on a daily basis, courtrooms otherwise available with cases ready to proceed are closed due to the continuing shortage of court clerks.

[17] In my opinion, this is not a discrete or exceptional circumstance that is reasonably unforeseeable or reasonably unavoidable. On the record before me, I am not persuaded that those responsible for the administration of the courts could not reasonably remedy the delays emanating from those circumstances once they arose: R. v. Jordan, 2016 SCC 27, at para. 69.

[18] The shortage of court clerks at the Ontario Court of Justice Toronto has resulted in the closure of numerous court rooms most days since the court opened in March 2023. The Crown provided no evidence of what, if any, extraordinary measures have been taken to address this urgent problem. I take judicial notice of the fact that the staff shortages have continued on a daily basis, resulting in courts being closed almost daily, thus preventing cases scheduled to be tried from proceeding, as occurred in the case at bar.

[19] In my opinion, it is significant that the closure of courts, due to the absence of court clerks, results in substantial prejudice to accused persons, and other participants in the criminal justice system. Accused persons, and Crown witnesses, are inconvenienced by having to attend court having had to make personal arrangements with respect to a potential absence from work, or other personal or family commitments such as child-care responsibilities, in order to attend the scheduled trial. For accused persons, it may often result in additional legal costs where the date scheduled for trial cannot be used solely because of a staff shortage.

[20] In my opinion, this deficit in the human resources provided by court administration at the Ontario Court of Justice Toronto is not a reasonably unavoidable discrete circumstance entitling the Crown to a reduction from the net delay otherwise applicable in this case.

The Crown Submission of a Reduction in Net Delay Due to the Ongoing Impact of the Covid-19 Pandemic

[21] The Crown submits that, as a trial date in this case was set on June 9, 2022, in relation to charges laid on November 3, 2021, the court system was still dealing with the backlog caused by the Covid-19 pandemic, and that accordingly an exceptional circumstance delay should be applied in this case pursuant to the ratio of the Court of Appeal in R. v. Agpoon, 2023 ONCA 449 at paras. 32 and 33 where the Court stated:

“As a result of the backlog of cases created by closures and the continuing restrictions limiting the number of cases that could be heard, courts were forced to triage and prioritize the order in which cases would be heard. Regional Senior Justices were given significant discretion over how best to address the backlogs in their courts, but most regions - including Toronto, where the present case was prosecuted - prioritized in- custody criminal matters over out-of-custody matters, and continuing trials over new trials.

The Application of Jordan Principles to Pandemic Delays Going Forward

[33] Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.”

[22] In that case, the Court of Appeal was considering charges laid in 2018 and ultimately stayed in May 2022.

[23] In R. v. Ivarone, 2023 ONCJ 69, Justice Leitch applied a three month exceptional circumstance delay in a case in which the date was set on April 8, 2022 for a trial ending on August 24, 2023. That was a complex case resulting from a two-year special project investigation involving numerous search warrants and other judicial authorizations and 2 wiretap authorizations. In considering the impact of Covid-19 on the net delay of 20 months three weeks and one day, Justice Leitch stated as follows at paragraphs 13 and 15:

“Joseph Ivarone was charged December 3, 2021. A trial date was set April 8, 2022, after several case management appearances before this court. Six days were scheduled for trial ending August 24, 2023.

In my view, conservatively three months of delay in this case is attributable to the discrete exceptional event of Covid-19. This case is not an island. The scheduling of this case was affected as the court tried to schedule several related matters including the pre-trial motions in this case and other motions flowing from the OSkyfall investigation. Unrelated cases were part of the backlog when this case was set on April 8, 2021[sic], leading to a delay to trial that was caused by a backlog of cases not heard while the courts were closed and other cases enter the system, while the justice system adapted to conduct trials by video and under safe conditions in person. Whether you call it a pig in a python or a ripple effect, the effect was real and caused delay in scheduling this trial.”

[24] The Crown submits that a similar Covid-19 discrete circumstance deduction from net delay should be applied in this case. In this case, the trial date was set on June 9, 2022. Potential trial dates in the period of March to June 1, 2023 were noted on the trial date assignment sheet to be available to the Crown and the court, but were not considered because of defence counsel’s unavailability.

[25] The Crown submits that, at this time, the Ontario Court of Justice at 1000 Finch Ave. West was continuing to deal with the effects of the backlog created by the Covid-19 pandemic and that this is reflected in the available trial dates which were considered when the trial date was set on June 9, 2022.

[26] Defence counsel submits that there is no evidence in this case of any delay attributable to the Covid-19 pandemic, and that the availability of trial dates in the March to June 2023 period shows that, at the applicable time, the court was able to set a two-day trial within 10 months of the date when the trial dates were being set. The defence submits that impaired trial dates being available in this range from the date when the trial coordinator set the trial date, was typical of the pre-pandemic delays at the Ontario Court of Justice at 1000 Finch Ave. West and demonstrates that when the trial date was set in this case there was no appreciable residual effect of the Covid-19 pandemic on the dates available to the court.

[27] Based on the record before me, I am unable to conclude that the residual effect of the backlog of cases due to the Covid-19 pandemic had any appreciable effect on the original trial date set in this case. The dates of June 14-15, 2023 were already delayed by about three months due to defence counsel’s unavailability in the period March 1 to June 1, 2023, which has been conceded to constitute defence delay in this case. Given the availability of trial dates in the March-May time period, I am unable to conclude that there was any appreciable impact on the available dates in this case from the Covid-19 pandemic or the ensuing backlog.

[28] In my opinion, based on the record before me, no further deduction from the total delay is appropriate due to the impact of the Covid-19 pandemic.

The Delay in the Continuation Dates Due to Defence Counsel’s Schedule

[29] When there was no court available for the second day of trial on June 15, 2023, the Crown and defence immediately sought continuation dates from the trial coordinator.

[30] The first date offered that was available to the Crown and the court was July 12, 2023, but defence counsel was unavailable. The defence was available on July 26 for the section 11 (b) motion, which was scheduled, but he was not available for the next trial date available to the Crown and the court of July 27, 2023.

[31] The court and defence counsel were available on August 4, 2023 and October 6, 2023, but the Crown was unavailable. The Crown and the court were available on October 17, 2023, but the defence was not available.

[32] Accordingly, the trial dates of October 31, 2023 and November 7, 2023 were set as continuation dates when the court, Crown and defence were all available.

[33] The Crown submits that, due to defence counsel unavailability July 12-July 28 (16 days) and November 1-7 (6 days) for a total of 22 days are defence delay, due to the unavailability of defence counsel when setting the continuation dates.

[34] The defence submits that the defence has fairly accepted the delay due to defence counsel’s unavailability for March to May 2023 as defence delay, but the defence was present and ready to proceed on the scheduled trial dates of June 14 and 15, 2023. Only about 1.5 hours of June 14 was available for the trial due to staff shortages, and June 15, 2023 was cancelled solely as a result of the unavailability of court clerks.

[35] The defence submits that, once a trial date is not used through no fault of the defence, the defence must be reasonably available for new scheduled dates but that requiring perpetual availability is not reasonable.

[36] Defence counsel submits that he was reasonably available, as reflected in the fact that he offered continuation dates available to the court, but not available to the Crown, of August 4, 2023 and October 6, 2023. He ultimately agreed to continuation dates available to defence counsel, the Court and the Crown on October 31 and November 7, 2023.

[37] Defence counsel submits that he was reasonably available, as reflected in the continuation dates set, and therefore that no additional delay is properly attributable to the defence.

[38] In R. v. Godin, 2009 SCC 26, the late disclosure of a forensic report required an original trial to be converted into a preliminary inquiry, as a result of which the case was delayed by nine months. The defence was offered an earlier date for continuation, but was unavailable, so a later date was set. The Supreme Court of Canada held that this did not result in a waiver of the delay between the original court date and the continuation dates set. Justice Cromwell stated for the Court at paragraph 23:

“Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion the defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously. I respectfully agree with Glitheroe R.S.J. dissenting in the Court of Appeal, at para. 53, that “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”

[39] In its recent decision in R. v. Hanan, 2023 SCC 12, the Supreme Court of Canada has rejected the view that all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. Côté and Rowe, JJ. writing for the Court stated in that case at paragraph 9:

“Like the majority and the dissent below, we reject the Crown’s proposed “bright line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A. as he then was, at para.56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66.) Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para.8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).”

[40] According to the record before me, while the defence was not available on the first dates offered of July 12 and 27, the defence and court were available on August 4, 2023 and October 6, 2023, when the trial could not be continued due to the Crown’s unavailability.

[41] In the circumstances of this case, in my view, the defence was reasonably available when the continuation dates were set, and no additional defence delay is attributable to the 145 days of additional delay caused by the staff shortage.

Conclusion

[42] The net delay to the end of the scheduled trial on November 7, 2023 is 1 year, 9 months and 7 days, taking into account as defence delay the 92 day period from March 1st to May 31st when defence counsel was unavailable when the original trial dates were set.

[43] I have found that all of the delay resulting from the shortage of court clerks is attributable to the Crown, and is not the result of a discrete exceptional circumstance. I have also concluded that the delay in this case was not caused or contributed to by the Covid-19 backlog, having regard to the relatively early dates the court could offer in the March-May 2023 time period.

[44] Furthermore, given defence counsel’s reasonable availability for continuation dates after the trial could not proceed on June 15, 2023 due entirely to the staff shortage, none of the 145 days of delay to November 7, 2023 is deductible as defence delay.

[45] If I am wrong in this regard, and the Crown submission is correct that 22 days of the additional delay in scheduling the continuation of the trial is defence delay, the net delay is still above the Jordan presumptive threshold of 18 months.

[46] As this was a straightforward case of alleged impaired driving, and over 80, there is no basis for a departure from the Jordan presumptive ceiling based on case complexity.

[47] Accordingly, I find a breach of the Applicant’s right to be tried within a reasonable time guaranteed by s.11(b) of the Charter, and the charges are stayed pursuant to s. 24(1) of the Charter.

Dated: August 30, 2023

Justice David Porter