Court File and Parties

COURT FILE NO.: CR-18-00000921-0000 DATE: 2022 03 04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Carson Coughlin for the Crown Respondent

- and –

YVENORD HYACINTHE Applicant Christien Levien for the Applicant

HEARD: March 1, 2022 by Zoom conference

Ruling on Section 11(b) of the Charter Application

D.E HARRIS J.

[1] The Applicant, charged with possession of a loaded handgun and possession of drugs, applies for a stay of proceedings based on a violation of his Charter Section 11(b) right to be tried within a reasonable time. While the gross delay approaches five years, the question is whether the Jordan ceiling of 30 months has been exceeded when account is taken of defence delay and exceptional circumstance delay resulting from the pandemic.

[2] In this decision, taking the lead from the majority’s comments in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.), I intend to take a generalist approach. It was said in Jordan,

36 The retrospective analysis required by Morin … encourages parties to quibble over rationalizations for vast periods of pre-trial delay…

37 …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.

91 Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case.

(Emphasis Added)

[3] It would be ironic if a Section 11(b) application, including counsel’s submissions and the drafting of a ruling, caused undue burden to the system, particularly in the context of the chronic delays dogging the administration of justice in Central West Region for several decades now (“the worst district . . . north of the Rio Grande.” R. v. Askov, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 (S.C.C.) at para. 125). An overly fastidious approach is also doctrinally inconsistent with the methodology of Jordan.

[4] Looking at it from the standpoint of the sufficiency of judicial reasons, the Jordan bird’s eye approach makes perfect sense. Reasons perform the functional purpose of informing the accused and the public why a particular decision is being made. In the context of Section 11(b), if there is no practical need to do a deep dive into the microscopic details of a particular delay period, it should not be done. The real, live contentious areas upon which the decision turns are what should be addressed: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 (S.C.C.) at para. 52. There is no need to go ploddingly through every step of the chronology in every Section 11(b) application.

[5] It might be helpful if before a Section 11(b) oral hearing, counsel could put their heads together and decide what matters and time periods are uncontentious. The facta assist in this regard to some degree but going one step further would be of assistance. A brief document could be compiled to assist the presiding judge. This would train a spotlight on the real issues to be decided and would compress oral submissions and facilitate the judge’s writing and decision making process.

[6] In this instance, I intend to address two main areas: 1. Delays caused by the defence; and 2. Exceptional delays caused by the pandemic.

Delays in the Discovery Proceeding

[7] The information against the Applicant was laid July 16, 2017, the day of his arrest. The defence did not contest committal and so the case got up to Superior Court quite promptly, the first appearance being March 9, 2018. There were several scheduling problems in discovering the witnesses and this process was not complete until late August, 2018. However, the problems encountered did not result in any delay because defence counsel, not Mr. Levien, was in no hurry to set a trial date.

Delays in Setting Motion and Trial dates

Evidence

[8] On August 24, 2018 Justice Durno asked if the defence was able to set trial dates but counsel opted instead for another judicial pre-trial (JPT). It was not until November 20, 2018, that a date of September 23, 2019 was set for pretrial motions. Three days were estimated. Counsel declined to set trial dates, saying that the Charter motions would be dispositive.

[9] On May 27, 2019, the Applicant discharged counsel. In the summer, Mr. Levien took over as counsel and on July 26, 2019, requested that the pre-trial motion dates in September be vacated due to his unavailability and because the Special Investigations Unit (SIU) report was not yet complete. There was an allegation in this case that the Applicant was subjected to excessive force by the police. The SIU investigated the police conduct in this regard.

[10] On September 11, 2019 a new date for the pre-trial motions of April 20, 2020 was set although the defence was offered but was not available on the dates of March 16, 30 and April 14, 2020. A jury trial was also set to commence May 25, 2020 for 5-7 days. Defence counsel indicated that he did not see Section 11(b) issues arising from the delay.

Conclusion on this Time Period

[11] In my view, leaving the nuances aside, the defence delay in this period begins August 24, 2018 when the court and Crown were ready and this delay encompasses everything except the waiting time between the set date and the offered hearing date. This waiting period is about six months (September 11, 2019 to March 16, 2020). The rest of the time was consumed with delays as a result of counsel not being willing to set a date, the change in counsel, and the defence requesting the September 19, 2019 dates be vacated.

[12] I agree with the Crown that the time between vacating the fall motions dates on July 26, 2019 and the time set for the new motion dates of April 20, 2020 was effectively waived or was tantamount to waiver. Crown counsel stated to the court on the set date of July 26, 2019 that he understood there were no Section 11(b) issues arising from the defence request for an adjournment. Defence counsel remained silent and did not contradict him. In context, given that it was the defence requesting the adjournment in the first place, this constituted a clear and unequivocal waiver to the point at which the pre-trial motions were rescheduled to be heard on the date of April 20, 2020.

[13] The delay caused by the defence was the time period from August 24, 2018 to April 20, 2020 minus the six months of waiting time. The result is 14 months of defence instigated delay that must be subtracted from the over-all delay.

The Pandemic Descends

Evidence

[14] March 15, 2020 was the fateful day that COVID-19 officially descended upon the Superior Court of this province. Chief Justice Morawetz ordered that all criminal matters between March 17, 2020 and June 2, 2020 be adjourned. From this point on, the courts were open and running only intermittently. Jury trials, of which this was one, were only permitted in brief windows of time. The pre-trial motion dates for April 2020 and the jury trial dates for May 2020 previously set were vacated due to the pandemic.

[15] On August 10, 2020, in a judicial pretrial, Justice Durno expressed concern with the dated history of the case and the many defence adjournments. The trial in front of the jury was set for March 11, 2021 and the pre-trial motions for November 2, 2020. The defence was asked to advise within 30 days if there were any Jordan concerns with the dates. If so, efforts would be made to offer closer dates. The defence never took up this offer. On October 26, 2020, the defence advised that they had filed a new factum for the pre-trial motions arguing a new ground for a stay of proceedings. On October 30, 2020, Justice Durno vacated the November 2, 2020 start date for the pre-trial motions to give the Crown time to respond. In a November 2, 2020 JPT the defence abandoned this aspect of their application.

[16] The pre-trial motions were ultimately heard before Andre J. in March of 2021 and were dismissed in May of 2021. The matter, at the insistence of the defence, remained a jury trial and could not proceed as scheduled in March of 2021 because of a COVID order prohibiting jury trials. On June 7, 2021, the matter was set down for trial on March 21, 2022. On January 7, 2022, defence counsel announced his intention to bring this Section 11(b) stay application. Jury trials have commenced again as of March 1, 2022 and so all indications are that this trial will go ahead as planned on March 21, 2022.

Conclusion on this Time Period

[17] It is universally acknowledged in the jurisprudence that the pandemic is an exceptional circumstance: see R. v. Khattra, 2020 ONSC 7894 (Ont. S.C.), at paras. 75-78; R. v. Simmons, 2020 ONSC 7209 (Ont. S.C.). No rational argument can possibly be made otherwise. It is my view that everything that occurred in the two year period between March 2020 and the upcoming trial date of March 21, 2022 lies under a blanket of exceptional delay attributable to the pandemic. Jury trials have been very rare over the last two years. I agree with the opinion voiced in the caselaw that generally the entire two year period ought to be regarded as an exceptional circumstance even though, theoretically, a jury trial could have been heard if the timing was precisely right and all the stars magically aligned. Cognizance must be taken of the reality that only a select few of the multitude of backlogged jury trials could fit into the few spaces in the court docket that were available: see Khattra at paras. 62, 79-83. There was a significant domino effect which affected this case and the vast majority of other jury trials. The entire waiting period caused by COVID in my view constitutes exceptional delay.

[18] The Crown only requests that 16.5 months of the 24 months be labelled pandemic delay. This is an overly generous position. The jury trial could not commence as scheduled on April 20, 2020 due to the COVID order halting jury trials. It was not until March 1, 2022, as the black cloud of COVID appears to be lifting, that jury trials have recommenced. I see the delay caused by the exceptional circumstance of COVID as running from April 20, 2020 until March 1, 2022, a period of about 22 months.

Final Conclusion on Delay

[19] There were very substantial defence delays in this case as a result of discharging counsel, new counsel not being available for the motion dates already set, the time spent waiting for the SIU report, filing a Charter motion late followed not long afterward by the abandonment of that motion. The defence was dilatory and did not appear anxious to bring this case to trial. Justice Durno expressed concerns about the delays resulting from the defence conduct. The 14 month of defence delay before the onset of the pandemic is overly charitable but there is no need to be more precise. The delay attributed to COVID is 22 months.

[20] Taking the 56.5 months of gross delay and subtracting the 14 months for defence delay and the 22 months for exceptional circumstance pandemic delay results in a net delay figure of 20.5 months. This number is well under the 30 month Jordan ceiling.

[21] The application is dismissed.

D.E HARRIS J.

Released: March 4, 2022