ONTARIO COURT OF JUSTICE DATE: 2024 01 26 COURT FILE No.: Newmarket 286157
BETWEEN:
HIS MAJESTY THE KING
— AND —
TROY SIMPSON
Before: Justice of the Peace Joel Kulmatycki
RULING ON SECTION 11(B) CHARTER APPLICATION
Heard on: January 16, 2024 Reasons for Judgment released on: January 26, 2024
Counsel: M. Caramanna..................................................................................... counsel for the Crown S. Columbus.......................................................... agent for the defendant Troy Simpson
KULMATYCKI J.P.:
[1] The Applicant, Mr. Troy Simpson is charged with one count of careless driving causing bodily harm and a second count of careless driving causing death. The offences are alleged to have occurred on July 16, 2022, with a swearing of the Information on September 21, 2022. The Applicant was originally charged with two counts of careless driving causing bodily harm, but an amended Information on count two was sworn on December 4, 2022, because one of the alleged victims succumbed to his injuries purportedly due to the events of July 16, 2022.
[2] It is agreed by both the Applicant and the Respondent, that the “start of the clock” is September 21, 2022, for purposes of the Charter 11(b) argument.
Position of the Applicant
[3] The Applicant submits that his right to be tried within a reasonable time under s. 11(b) of the Charter has been violated. He seeks a stay of proceedings under s. 24(1) of the Charter.
[4] The Applicant and Respondent agree that the total net delay between September 21, 2022, the day the Information was sworn, and April 18, 2024, the anticipated end date of what is expected to be a four-day trial, is 576 days or 18 months and 29 days.
[5] The Applicant submits that there are no periods of defence delay or exceptional circumstances that justify the delay of 18 months and 29 days.
[6] Ms. Columbus on behalf of the Applicant states, “This is not just a case like so many others where COVID-19 caused scheduled trial dates to be adjourned or prevented them from being set. The main causes of the delay here is the length of time it took for the police to provide the Crown vital additional disclosure, namely, an accident reconstruction report, and medical records of driver [two], Bruce Lohnes.”
[7] The Applicant asks that if the Court were to find that exceptional circumstances exist and the delay is below the 18-month presumptive Jordan ceiling, that the case has taken markedly longer that it reasonably should have. The Applicant continued by stating the following:
(a) In the Jordan era, routine accident cases should not reasonably exceed a year.
[8] The Applicant remarks that every effort was made on their part to move the case along in a timely manner and that all delay was on the part of the Crown in terms of lack of full disclosure that would have allowed them to review, digest and confer with the defendant.
[9] The Applicant submits that a stay of proceedings in accordance with R v. Jordan, 2016 SCC 27 is the only remedy.
Position of the Respondent
[10] The Crown submits that there is no delay on the part of the Crown. Ms. Caramanna states that the delay is because of COVID-19 as an exceptional circumstance and additionally on the part of the defence, specifically:
(a) A period of 43 days between March 29, 2023, and May 11, 2023, where the Applicant failed to request disclosure or diligently pursue disclosure. The Crown submits that disclosure already in the possession of defence was either not noticed or was requested several times.
(b) A period 48 days between October 17, 2023, and December 4, 2023, those being dates connecting two judicial pre-trials where full disclosure had been made on October 13, 2023, but not recognized as received by the Applicant until after a new judicial pre-trial was scheduled. JPT #1, I will call it, was abandoned to a second date of December 4, 2023, where JPT #2 was conducted. An 11(b) motion date of January 16, 2024, was scheduled along with sporadic trial dates commencing in February 2024, ending on April 18, 2024.
[11] In terms of exceptional circumstances, the Respondent submits that it can be addressed under four categories.
(a) One, the first appearance date was approximately three months after the event in July 2022.
(b) Two, the general progress of the case in a set date environment was delayed because of the COVID-19 pandemic backlog.
(i) Delay in getting set dates closer to one another.
(ii) Delay in getting Judicial input through set dates.
(c) Three, the delay in getting a timelier Judicial Pre-Trial, specifically where one was sought on September 8, 2023, with an earliest date available to be scheduled on October 17, 2023.
(d) Four, when trial dates were sought for a four-day hearing, the earliest date available was February 28, 2024, with continuing non-consecutive dates through March and April 2024.
The 11(b) Charter Analytical Framework
[12] In R. v. Jordan, 2016 SCC 27, 2016 1 SCR 631 the Supreme Court of Canada established the framework to be applied where a breach of s. 11(b) is alleged. This includes a presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice, and 30 months for cases tried in the Superior Court of Justice.
[13] If the delay is greater than 18 months, the onus is on the Crown to rebut the presumption of unreasonableness. If the delay is under the presumptive ceiling the burden is on the Applicant to show that the delay is unreasonable. Any delay attributable to the defence, or any delay which has been waived by the defence does not count toward the presumptive ceiling. Any delay attributable to an exceptional circumstance similarly does not count toward the presumptive ceiling.
Transcripts of appearances (summaries)
[14] On December 22, 2022, being the first appearance date, there was no judicial official, however a transcript depicts a cordial interaction between the Crown and the defence where counsel agreed to determine who the assigned crown was.
[15] On January 25, 2023, the Crown advised that disclosure was prepared and was being vetted for redactions. The Crown indicated that they had hoped it would be ready for dissemination to the defence in short order. The assigned Crown was identified that day. The email for the assigned Crown was also provided.
[16] On February 22, 2023, the Crown advised, in contrast to what the defence suggested, that disclosure had been previously sent on February 7 and 9. The Crown stated that they were waiting on more disclosure. The Crown clarified that the disclosure was sent to Ms. Thomas’ email. (I learned that Ms. Thomas belongs to the firm representing the Applicant)
[17] On March 10, 2023, the defence advised that they had received “some additional disclosure” as of the day prior. The defence stated that they would review it and “potentially” set a crown pre-trial.
[18] On April 4, 2023, the Crown withdrew the first Information relating to the two counts of careless driving causing bodily harm and advised that they would proceed on the current Information alleging careless driving causing bodily harm and one count of careless causing death. The defence acknowledged that they had received “some videos and some photos” but still had not received the rest of the disclosure.
[19] On April 25, 2023, the defence stated:
(a) We received disclosure just yesterday. We found out who the assigned Crown is, so we were looking to have a chance to review that disclosure and schedule a CPT in the interim and we can return on May 9 th , 1:30 docket, if it’s available.”
[20] Further in this transcript, the Crown advised that they had been providing disclosure and were and had been available for a crown pre-trial. It was clear that there had not been a crown pre-trial to date.
[21] On May 9, 2023, the defence advised that he had learned that morning that there was a large package of disclosure and that he wished to have an opportunity to review it. He stated that he would “potentially” schedule a crown pre-trial.
[22] On May 25, 2023, defence advised that there were issues with the disclosure and that they had been receiving it “bit by bit.” He identified that some medical records that he had received were for the wrong alleged victim.
(a) “So, this may be remedied with me getting my own disclosure hub portal, as most of this disclosure was sent to Ms. Andrea Thomas as well – who has, you might, may be aware, is now on matt leave …”
(b) The Crown advised that they would send all of the disclosure again to make sure that nothing was missed. The Crown asked that the defence review the materials and “commence pre-trial” discussions with the assigned Crown. I note that up to this date, there had not been a crown pre-trial.
[23] On June 29, 2023, the Crown stated that the matter had been “going over a number of times for disclosure issues.” She suggested that a “quick” turn-around date be scheduled in order to move the case forward. It became clear on this date, that there had not been a crown pre-trial.
(a) Glassford JP stated that a crown pre-trial should be conducted. He continued to say that a judicial pre-trial was required.
[24] On July 21, 2023, the crown advised that they had left a message with defence regarding a crown pre-trial but had not heard back. It was determined that the principal agent was on a paternity leave. Defence on that day was only seeking an adjournment to September 2023.
[25] On September 11, 2023, the Crown and defence set a judicial pre-trial date. The defence advised that they had hoped that they would have full disclosure so that a “fruitful” pre-trial could be conducted. Dates of September 20 and 22, 2023, were suggested but defence was not available until October 17, 2023.
[26] On October 17, 2023, a judicial pre-trial was held. The matter was adjourned to December 4, 2023, for a continuing pre-trial.
[27] On December 4, 2023, the second judicial pre-trial was conducted. Trial dates for the matter were set.
Purported Defence delay – March 29, 2023, to May 11, 2023 (43 days)
[28] The Applicant made several disclosure requests over the period since they were retained in October 2022. I find that most were boiler plate requests and not specific to the case at hand. In all instances, the email from X-COPPER Law Firm reads as follows:
(a) If we do not receive complete disclosure within 14 days of the trial date, or if the disclosure provided is incomplete, illegible, or does not comply with our described request, you are hereby notified of our intention to seek an adjournment of the trial date.
[29] I further note that in an email dated August 25, 2023, at 2:06 pm, (Exhibit E in the Crown’s materials) Ms. Mapelli for the Crown and Mr. Dantas for the defendant interacted.
(a) Ms. Mapelli: I have reached out to the OIC [officer-in-charge] again and will let you know. I’d recommend you set a JPT to discuss those issues as we need to move forward.
(b) Mr. Dantas: Our firm doesn’t set JPT’s without full disclosure. Although if the Crown requests one, we do not oppose.
[30] R v. Silva, 2021 ONCJ 7306, para 7, 13, and 16 … (7) … as explained below, the matter was ready to set a trial date and judicial case management should have been engaged to deal with the remaining disclosure item. (13) … It had been 15 months since the Crown suggested that a judicial case management [JPT] was required, but in the interim neither party had asked for a case management meeting and both parties were content to keep adjourning the matter. Further at paragraph 16, Kenkel J stated the following:
(16) Judicial case management is not simply a process to confirm trial time estimates. In cases such as this, judges provide ongoing management of disclosure and evidentiary issues, and they ensure that active steps are taken so that both parties arrive on the scheduled date ready for trial. It is important that judicial case management be engaged early in the process to avoid unnecessary delay. Waiting 15 months until the disclosure is perfect as was done in this case was all wasted time. Under the prior Morin analysis, it’s not plain that the defence would be able to complain about much of this delay, but the presumptive ceilings in the Jordan system require all parties including the court to monitor the case to eliminate unnecessary delay. In 18 appearances (not counting COVID presumptive adjournments) to the point the trial date was set, that simply wasn’t done.
[31] R v. Kovacs-Tatar, [2004] O.J. No 4756, the Ontario Court of Appeal explained at para 47 that the Crown is obligated to make initial disclosure before an accused person is called upon to plead or elect their mode of trial, but it is unreasonable to insist that every item of disclosure be provided before a trial date is set. The court noted that even after a trial date is set, there is typically ample time before trial to obtain disclosure such as the expert report at issue in that case. The court repealed the same instruction in R v NNM, [2006] O.J. No 1802 at apar 37, “the Crown is not obliged to disclose every last bit of evidence before a trial date is set”.
[32] In this case, the transcripts provides that as early as March 10, 2023, a crown pre-trial meeting was brought up and that on June 29, 2023, Glassford, J.P., suggested that a crown pre-trial and judicial pre-trial be conducted. The assigned Crown was identified to be Ms. Mapelli very early. In my view, the response of the agent for the Applicant in the email exchange as to the position of his firm, opposes what is described in R v. Kovacs-Tatar.
[33] The repeated requests for disclosure already in the possession of defence, in my view is delay on the part of the Applicant. Simply seeking disclosure in a boiler plate fashion only causes further delay. In terms of disclosure requests, they must be succinct appeals for specific items. It should be akin to a shopping list and not just a list noting that apples are wanted, but how many apples and the types.
[34] R v. Zahor, 2022 ONCA 449, the Court held that defence counsel had not been diligent in pursuing disclosure. The requests, although timely, were ambiguous and inconsistent. As such, the delay was in part attributable to the defence. Paragraph 97 reads:
(a) In this case, the defence was far from diligent in seeking disclosure. In his correspondence to the Crown, defence counsel parroted comments about the E01 images without explaining what precisely was being sought. Defence counsel did not request assistance with the outstanding disclosure at any of the judicial pre-trial hearings. Defence counsel stated on the record that he was awaiting “outstanding disclosure,” but said nothing more about what was outstanding. At one point, defence counsel said he had been provided the E01 images, and then reversed that position the next day.
[35] Referring to a passage from R v. Dixon, [1998] 1 S.C.R. 244, at para. 37:
(a) The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.
[36] In this case, a crown pre-trial and a judicial pretrial could have been completed well in advance of when they did occur. This would of course allow for earlier trial dates to be set. I am of the view that the Applicant was not diligent in their requests and therefore the period of March 29, 2023, to May 11, 2023, a period of 43 days rests with the Applicant.
Purported Defence delay – October 17, 2023, to December 4, 2023 (48 days)
[37] On October 17, 2023, a judicial pre-trial was to occur but was ultimately abandoned to December 4, 2023, as the Applicant did not believe that they had full disclosure and therefore could not have meaningful discussions with the Justice of the Peace and the assigned crown attorney. What was learned was that the full disclosure was sent to the Applicant on Friday October 13, 2023, at 1:10 pm. This is approximately one and half business days prior to the scheduled pre-trial on Tuesday October 17, 2023.
[38] The Applicant submitted, both in the factum and orally before the Court, that even if they knew that the full disclosure existed on the Friday before a following Tuesday pre-trial that the meeting would not be fruitful or meaningful as they would not have been able to review, digest and get client instructions.
[39] The Applicant described that 1200 pages of materials were disclosed just prior to the October 17, 2023, pre-trial date. The Crown in reply, stated that 500 pages of that had been previously disclosed. That essentially left the defence to review, at a standard that allowed them to set trial dates, 1.5 business days to evaluate the materials.
[40] A judicial pre-trial is a setting to stimulate conversations, arguments, and judicial intervention to move the case along. In my view, the defence waited too long to set a pre-trial and moreover, did not engage in crown pre-trial meetings where they knew who the assigned prosecutor was for months.
[41] If the Applicant had been diligent on Friday October 13, 2023, and again on Monday October 16, 2023, and checked their file that they in fact had full disclosure, including the outstanding expert report, a judicial pre-trial should have been done. Moreover, in my view, even if the Applicant did not believe that they had disclosure, trial dates should have been set. The matter was postponed to December 4, 2023, for a second pre-trial.
[42] I again rely on Kenkel J’s decision in Silva where trial dates should have been set on October 17, 2023, even without full disclosure.
[43] R v. Cody, [2017] SCC 31, at paragraphs 31 – 35, the Supreme Court emphasized the importance of defence counsel being diligent, and the ways in which defence counsel conduct may be viewed as legitimate or illegitimate, depending on the degree to which defence counsel “actively advances their clients’ right to a trial within a reasonable time.
[44] I am of the view that the Applicant was not diligent in advancing their client’s right to a trial within a reasonable time and therefore the period of October 17, 2023, to December 4, 2023, 48 days rests with the Applicant.
Covid-19 as an exceptional circumstance in 2023/2024
[45] The Applicant asks me to consider that the case against Mr. Simpson should have been completed within 12 months as it was a routine traffic accident. I am asked this in the event that it was determined by the Court that there was delay associated to the Applicant, thereby bringing the presumptive ceiling below 18 months.
[46] If this was in fact a routine traffic matter and not a fatality involving an expert report, autopsy findings, and medical records of both the living and the deceased, along with witness statements, I may agree that it should be a completed case within an approximate twelve-month range. But this is not in my view, a routine traffic accident as described by the Applicant.
[47] The Respondent argues that a period of 90 days or a period as I determine suitable should be subtracted as being attributable to the global pandemic.
[48] The Supreme Court of Canada in R v. Jordan at paragraph 69, and R. v. Cody, [2017] SCC 31 at paragraphs 45-62, have explained that exceptional circumstances are ones that lie outside the control of the Crown, in that they are reasonably unforeseen or reasonably unavoidable, and are scenarios where Crown counsel cannot reasonably remedy the delays resulting from those circumstances once they arise.
[49] R. v. Agpoon, 2023 ONCA 449, Lauwers, Pardu and Benotto JJ.A. “Jordan was not written with a phenomenon like the pandemic in mind, but its principles are adaptable. Jordan recognized that delay attributable to ‘exceptional circumstances’ could be acceptable, para 68.
(a) The trial judge in Agpoon observed correctly that “[n]umerous rulings have considered the impact of the global pandemic in the context of s.11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.” The Court in Agpoon further stated:
(b) Province-wide court closures: There were times where all courts in the province limited their operations to only the most urgent matters. The main province-wide closure occurred in the first months of the pandemic, beginning on March 17, 2020, and was lifted in phases over the course of the summer, para 28.
(c) Priorities in addressing the backlog: 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, para 32.
(d) This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis, para 34.
[50] In R v. M.G. 2023 ONCJ 24, 2023 ONCJ, November 24, 2023, paragraphs 44 - 47, Townsend, J provided what the answer is to the question, “Does the pandemic continue to play a role in the time it takes to get to trial?” His answer was yes. He went on to say:
(a) The Crown finally argues that the impact of the COVID-19 pandemic continues to play a role in the time it takes for matters to get to trial. I agree, para 44.
(b) It is well recognized that the COVID-19 global pandemic came upon Canadians and began its extreme and profound impact on the criminal justice system in this country in March of 2020. Soon thereafter, courthouses were shut down, trials were postponed (if not cancelled), appearances were delayed, and justice system participants waited (somewhat) patiently for things to “get back to normal”. Here we are some 3.5 years later, and things may still not be completely “back to normal”. To draw on the analogy of Dunphy J. in R. v. Titus, 2022 ONSC 3484, there may yet still be part of that pig in the python not fully digested, para 45.
(c) At some point that complete digestion must happen. However, in my opinion we are not there yet. I agree with my colleague Prutschi J. in R. v. Jacques-Taylor at paragraph 47 that as we continue to move further and further from the event horizon of the COVID-19 pandemic, future 11(b) jurisprudence eventually needs to reflect this reality, para 46.
(d) The Ontario Court of Appeal in R. v. L.L., 2023 ONCA 52 tells me that I am entitled to draw on my “own knowledge of the culture at the court location” where I sit to determine the impact that the COVID-19 pandemic has had on the scheduling of a particular case, para 47.
[51] Justice Townsend in the case above attributed 90 days to the pandemic as unforeseen and exceptional.
[52] In the matter before me, I agree that at least 90 days is directly associated to the global pandemic event and can be subtracted from the total delay.
[53] I say at least, because of the sheer volume of cases in the Provincial Offence Act court. I was appointed as a Justice of the Peace in July 2021, and saw first-hand how cases in the POA setting were dealt with. The Crown and Municipal prosecutors worked tirelessly to mitigate delay and, in many situations, favorably in my view to defendants charged with less serious offences, where charges were either withdrawn completely or resolved by way of lesser penalty.
[54] R. v. Korovchenko, 2022 ONCJ 388, Henschel J. discusses the specific culture and specific circumstances of trial scheduling in Newmarket. “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”, para 105.
[55] In this case there was a delay from the time of the event to the first appearance. In addition, a new Information was sworn in December of 2023, because one victim purportedly died as a result of his injuries that were sustained on July 16, 2022 (the event).
(a) July 16, 2022 – the event.
(b) September 21, 2022 – Information sworn for the original charges. It is agreed by the Applicant and Respondent that this is the starting point for my consideration.
(c) December 22, 2022, the first appearance date, the matter is adjourned as a result of a section 49(5) Order pursuant to the Provincial Offences Act of Ontario as there was no judicial official to preside.
(d) January 25, 2023, the first real appearance before a judicial official.
(e) April 18, 2024, the anticipated end of the trial.
[56] In this case, I can reasonably attribute 3 months or 90 days to exceptional circumstances. I find that this delay was associated with the effects that the pandemic had on the courts.
Ruling on the Application
[57] For the reasons in the above paragraphs, the delay is calculated as follows:
(a) 576 days total from the swearing of the Information to the anticipated end of the trial. This is not disputed by the parties.
(b) A deduction of 43 days and an additional 48 days of clear defence delay, totalling 91 days.
(c) A deduction of 90 days as exceptional circumstances relating to the continuing impact of the global pandemic (COVID-19).
[58] I am left with a total calculation of 395 days.
[59] Relying on R v. Shaikh, 2019 ONCA 895, the total days are divided by 30.417 to quantify the days into months.
[60] I find that the total delay after deductions in this matter is 12.9 months. This delay falls under the presumptive ceiling as outlined in R v. Jordan.
[61] The Application under section 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings alleging a violation of the defendant’s rights to be tried within a reasonable time as guaranteed by section 11(b) of the Charter is dismissed.
[62] The trial will commence on February 28, 2024.
Released: January 26, 2024 Signed: Justice of the Peace Joel Kulmatycki