Court File and Parties

COURT FILE NO.: CR-21-10000356-0000 DATE: 20220510

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – PATRICK AGPOON and SHEA FLEMMINGS

COUNSEL: D. Steinberg, for the Crown J. Yuen for Patrick Agpoon and K. Lau-Po-Hung for Shea Flemmings, for the Applicants

HEARD: April 28, 2022

LEIPER J.

Reasons for Judgment on Section 11(b) Application

Introduction to the s. 11(b) Stay Application

[1] The Applicants in this matter are Patrick Agpoon and Shea Flemmings. They are charged with various criminal offences related to alleged human trafficking, possession of fentanyl and possession of a firearm. They seek a stay of proceedings because of an alleged breach of their right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms.

[2] Mr. Agpoon was first charged on December 10, 2018. Mr. Flemmings was charged approximately one year later, on December 13, 2019.

[3] The Applicants’ trial is scheduled for February 13, 2023. It is expected to last until March 10, 2023. The trial completion date exceeds the Jordan ceiling for Mr. Agpoon by 21 months and for Mr. Flemmings by nearly 9 months.

The Applicable Legal Framework

[4] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada devised a new framework for determining when an accused’s s. 11(b) Charter right to trial within a reasonable time has been infringed.

[5] Jordan established a “ceiling” of 30 months for cases that go to trial in the superior courts. Delays beyond the ceiling are presumptively unreasonable: Jordan, at para. 46; R. v. Coulter, 2016 ONCA 704, 340 C.C.C. (3d) 429, at para. 32.

[6] The Jordan calculation begins with the total delay figure, calculated as the time between the charge and the end of the trial. Any defence delay (whether due to positions or steps taken by the defence, or waivers of s. 11(b) delay) is subtracted from the total delay to find the net delay period: Jordan at paras. 47, 66. Total Delay – Defence Delay = Net Delay.

[7] Defence delay arises from steps or tactics that directly cause delay. Examples of defence delay include bringing frivolous applications or not being available to proceed despite the Crown and court being ready to do so: See Jordan, paras. 63-64; Coulter, at para. 44.

[8] If the net delay period in a superior court trial is over the 30-month ceiling, the Crown may seek to establish that exceptional circumstances rebut the presumed breach of the accused’s s. 11(b) rights. If the Crown is not able to do so, the charges will be stayed: Jordan, at para. 47.

[9] Exceptional circumstances are outside the Crown's control, in that they are reasonably unforeseen or unavoidable and Crown counsel cannot reasonably remedy the delays arising from those circumstances. An “exceptional circumstance” need not be rare or uncommon: Jordan, at para. 69; Coulter, at para. 46.

The Issues on this Application

[10] All counsel agree that the total delay exceeds the Jordan dates. The Applicants submit that there are no exceptional circumstances justifying the delay, even if the defence caused some of that delay.

[11] Crown counsel submits that the Applicants’ s. 11(b) rights have not been infringed because once defence delay and the exceptional circumstances presented by the global pandemic are considered, the net period of delay is not unreasonable.

Analysis of Defence Delay Attributed to the Applicant Mr. Agpoon

[12] The Crown submits that there are four periods of defence delay which ought to be subtracted from the total delay to arrive at the net delay for Mr. Agpoon. These submissions and calculations are as follows:

Starting Point Total Delay: 51 months

Defence Delay:

i. Delay in Setting the Crown Pre-Trial: 2 months and 12 days

This period resulted from defence counsel seeking to delay the pre-trial pending disclosure of phone analysis, despite having received significant disclosure. Crown counsel submits that the law is clear that defence counsel may not delay holding a pre-trial awaiting all disclosure, particularly with respect to items that can be slow to produce, such as phone extraction data.

ii. Delay in Setting the Judicial Pre-Trial: 12 days

Crown counsel submits that when the judicial pre-trial was scheduled in the Ontario Court of Justice, the court and the Crown were both available to proceed on June 20, 2019. However, the earliest date available to defence counsel was July 2, 2019. Thus, Crown counsel submits that the defence delay is 12 days during this period.

iii. Delay in Setting the Preliminary Hearing: 3 months and 15 days

Crown counsel submits that when the preliminary hearing was scheduled on July 2, 2019, dates were available starting on February 10, 2020. However, defence counsel was not available in February of 2020. Fatefully, the preliminary hearing was initially scheduled to start on May 25, 2020 but was later postponed due to the advent of the pandemic in March of 2020.

Given that defence counsel was not available in February of 2020, Crown counsel submits that the delay of 3 months and 15 days in scheduling the preliminary hearing to accommodate the defence, based on the planned date of May 25, 2020, must count as defence delay.

iv. Delay Caused by Adjournment of First Trial Date: 4 months and 25 days

Crown counsel submits that the defence application to adjourn the four-week trial from September 19, 2022 until February 13, 2023 amounts to defence-caused delay. Exchanges in the summer of 2021 about seeking earlier dates did lead to a change of trial date. The court had made it clear in June that the matter was being scheduled to proceed in September of 2022. Crown counsel submits that defence counsel Mr. Yuen’s choice to book another commitment, prior to knowing whether the first trial date in September of 2022 would be replaced with other dates, makes this defence delay.

Total Alleged Defence Delay: 11 months and 4 days

Agpoon Net Delay According to the Crown (51 months - 11 months and 4 days) = 39 months and 26 days

[13] Counsel for Mr. Agpoon submitted that none of the periods relied on by the Crown as defence delay should be deducted from the total delay. His position may be summarized as follows:

i. Delay in Setting the Crown Pre-Trial:

The initial intake period after Mr. Agpoon was charged in December of 2018 included a change of counsel, a delay of the bail hearing until May 2, 2019 and delay in scheduling a Crown pre-trial between May and July of 2019 despite having a considerable amount of disclosure. The Crown relies only on the period of delay in holding the pre-trial after disclosure was made.

Counsel for Mr. Agpoon, who was not counsel at the time, fairly agrees that he is unable to say the defence could not have had a meaningful pre-trial in May of 2019 to prevent the two months of delay that the Crown suggests was caused by the defence.

ii. Delay in Setting the Judicial Pre-Trial:

Counsel for Mr. Agpoon points out that the defence conducted a pre-trial despite not having full disclosure. The record of the setting of this date speaks for itself from the transcript.

iii. Delay in Setting the Preliminary Hearing:

Counsel for Mr. Agpoon notes that counsel have other matters they are responsible for and are not always available at the earliest possible dates. The record of the setting of this date speaks for itself from the transcript.

iv. Delay Caused by Adjournment of the First Trial Date:

Counsel for Mr. Agpoon submits that he had been responsive to all the Crown’s emails and made himself available to consider earlier dates. He submits that Crown counsel did not always communicate in a timely manner. However, counsel acknowledges that when he scheduled his conflicting commitment, he did not advise Crown counsel. In the alternative, counsel submits that even if this period is assessed as defence delay, the net delay nevertheless puts his client’s delay well past the Jordan ceiling.

[14] I conclude that the four periods outlined above are fairly assessed as defence delay. The delays in the Ontario Court of Justice in scheduling a pre-trial and a judicial pre-trial relate to additional disclosure in the case of the former, and unavailability of defence counsel in the latter.

[15] The evidence before me suggests that a pre-trial could have been held in May of 2019. Although the Crown has an obligation to provide full and complete disclosure by the time of trial, the fact that the Crown has not completed making disclosure “does not justify the defence in refusing to take preliminary steps such as attending pre-trials and setting dates for trial or for a preliminary inquiry”: R. v. Richards, 2010 ONSC 6202, at para. 22.

[16] Delay is defence delay if it results from the unavailability of the defence: Jordan, at para. 64. The defence delay from these first two periods combined is 2 months and 24 days.

[17] Likewise, the defence was responsible, due to counsel’s unavailability, for the delay in scheduling the preliminary inquiry. The Court and the Crown offered dates in February of 2020. The defence was not available until May of 2020 and those were the dates fixed. The delay in scheduling the preliminary inquiry is defence delay totalling 3 months and 15 days.

[18] Finally, the trial was adjourned because counsel for Mr. Agpoon assumed that the Crown’s initial expressions of difficulty with the trial dates fixed for September, 2022 meant that the trial would not proceed that month. In August of 2021, counsel for Mr. Agpoon made a conflicting personal commitment, but did not advise the court or other counsel that he had done so, nor did he move for an adjournment prior to taking on a conflicting obligation. When Crown counsel resolved his own conflict with the dates, and earlier dates for the trial did not materialize, counsel for Mr. Agpoon brought a contested adjournment request, which led to new trial dates scheduled for February 13, 2023.

[19] I conclude that this period amounted to defence-caused delay of 4 months and 25 days. Once a trial is scheduled, it is the court’s role to decide whether to vacate, adjourn or bring forward the trial date. This was a four-week jury trial involving two vulnerable complainants. Justice Campbell scheduled the trial on a “with or without counsel basis” for the third accused, who had not retained counsel of record for the trial. The concerns voiced by Crown counsel in June of 2021 and the unsuccessful efforts of all counsel to find alternative dates meant that the September 2022 trial dates were not altered. Had the Crown moved to adjourn to accommodate its conflict, that would have been Crown delay. However, that did not happen. It was the decision of the defence which led to the need for the adjournment. This cannot be said to be delay caused by the Crown.

Analysis of Defence Delay Attributed to the Applicant Mr. Flemmings

[20] Crown counsel submits that Mr. Flemmings’ net delay should be calculated as follows:

Starting Point Total Delay: 38 months and 28 days

Alleged Defence Delay caused by adjourning trial date: 4 months and 25 days

Flemmings Net Delay According to the Crown: (38 months and 28 days – 4 months and 25 days) = 34 months and 3 days

[21] Counsel for Mr. Flemmings submits that unlike Mr. Agpoon, Mr. Flemmings was ready to proceed to trial in September of 2022. He took no position on the adjournment request. Counsel for Mr. Flemmings submits that this period should not be considered as his defence delay.

[22] I am obliged to consider the situation of each accused and assess their conduct separately. Counsel for Mr. Flemmings flagged the concerns with s. 11(b) and her intention to join issue with counsel for Mr. Agpoon on this Application, which was scheduled at the time the motion to adjourn the trial was heard.

[23] I conclude that Mr. Flemmings acceded to his co-accused’s decision to seek the trial adjournment. He could have opposed the adjournment, but he did not. He could have sought severance of his counts, but he did not. He told the court that he was ready to proceed and that he suffered a harsher impact from the delay given that he was detained, but he did not take the available steps or make submissions to advocate for his trial to proceed as scheduled on September 19, 2022. I find that this period was defence delay in relation to Mr. Flemmings.

[24] Once defence delay is deducted, the net period of delay for Mr. Agpoon is 39 months and 26 days and for Mr. Flemmings it is 34 months and 3 days. Both periods of delay remain above the Jordan ceiling and are presumptively unreasonable.

Has the Crown Established Exceptional Circumstances Which Justify Deducting Delay Arising from the Global Pandemic?

[25] Crown counsel submits that the global pandemic is an exceptional circumstance which accounts for the balance of the delay that exceeds the Jordan ceiling of 30 months. Crown counsel submits that the time between the adjournment of the preliminary inquiry in May of 2020 on account of the pandemic until the preferring of a direct indictment in May of 2021 should be subtracted from the net delay.

[26] The Applicants submit that there is no reason the preferring of the indictment could not have happened sooner in 2020. They submit that in February of 2020, Crown counsel was contemplating a direct indictment if an adjournment was sought to accommodate defence counsel. When the matter was adjourned, the Crown did ultimately prefer the indictment. Defence counsel submit that the Crown delayed this step unnecessarily and that this delay was not caused by the pandemic.

[27] The Applicants submit that the Crown should have preferred the indictment at the time of the judicial pre-trial on March 25, 2020, or at the latest by May 5, 2020, when the courts closed, and it became clear that none of the previously scheduled dates could be salvaged to begin the preliminary inquiry. The Applicants submit that in the unique circumstances of this case, the pandemic should not justify the Crown’s delay.

[28] Defence counsel for Mr. Flemmings provided the example of R. v. Thornhill, a case in which Ms. Lau-Po-Hung was defence counsel. Thornhill was prosecuted out of the same Crown office. It has some features in common with the case at bar. After the pandemic triggered an adjournment, the prosecution preferred a direct indictment in the Thornhill matter within three months of the March 2020 court closure.

[29] Crown counsel submits that this is “anecdotal” evidence which overlooks the individual history of each file. That may be so, and there may be valid reasons why one case received priority over another in the same office, however there was no evidence supplied by the Crown addressing the much lengthier delay in preferring the indictment in this case, in the face of an apparent availability in a similar matter. I consider the impact of this gap in the record below.

[30] I turn next to the chronology of events from must prior to the onset of the pandemic through to the preferring of the direct indictment in May of 2021.

Chronology of Events: February of 2020 to May of 2021

[31] As a result of the exceptional circumstances of the pandemic, Crown counsel submits that it is reasonable to deduct the period of delay between the scheduled end of the 2020 preliminary inquiry and the date of the preferred indictment, which moved the case into the Superior Court of Justice in 2021.

[32] On March 10, 2020, an email among all defence counsel for the three co-accused shows that they were aware that if the co-accused, Ms. Mughal, sought to adjourn the 2020 preliminary inquiry dates, the Crown would prefer an indictment to address the delay. On March 11, 2020, new counsel for the co-accused Ms. Mughal advised Crown counsel that he would not be seeking to adjourn the preliminary inquiry if that could trigger a direct indictment. Ms. Mughal is not involved in the application before me.

[33] All was on track at this point, and the preliminary inquiry was scheduled to take place from May 25, 2020 to June 12, 2020. Within days, the COVID-19 pandemic had shut down the courts.

[34] On March 25, 2020, counsel attended a judicial pre-trial with their case management judge. The parties contemplated starting the preliminary hearing one week later than scheduled to account for the court closure and make up the lost time on a future date.

[35] This plan did not work. On May 5, 2020, the assigned Crown alerted all parties that the courts remained closed due to the pandemic and no preliminary inquiries would be held until after July 6, 2020. Crown counsel suggested that the parties await the posting of the Superior Court of Justice notice to this effect and then consider how to schedule new dates.

[36] On September 8, 2020, which was the first available date for rescheduling matters, Crown counsel communicated with the Trial Coordinator and counsel to discuss rescheduling the preliminary inquiry.

[37] On September 9, 2020, the Trial Coordinator circulated a trial scheduling form to counsel. The Trial Coordinator confirmed that the first available dates for the preliminary inquiry when all counsel were available were May 25, 2021 to June 14, 2021.

[38] On October 19, 2020, the parties confirmed the new dates for the preliminary inquiry. Counsel adjourned the case to be spoken to on December 16, 2020. There were no discussions on the record about a direct indictment at that attendance.

[39] In November of 2020, counsel Mr. Yuen replaced Lori Anne Thomas as counsel of record for Mr. Agpoon after Thomas, J. was appointed to the bench. Mr. Yuen contacted the Crown’s office for disclosure and asked to confirm the preliminary inquiry dates.

[40] On December 16, 2020, the preliminary inquiry dates were confirmed, and the matter was adjourned directly to May 31, 2021.

[41] On May 19, 2021, Crown counsel (new Crown counsel on the file) emailed all parties to say that the Crown had secured a direct indictment on the matter. This appears to be the first time that the defence were made aware that the preliminary inquiry would not be proceeding. By responding email, defence counsel expressed concerns about the time they had spent preparing for the preliminary inquiry. On May 26, 2021, the case moved from the Ontario Court of Justice to the Superior Court of Justice.

[42] On May 26, 2021, the matter returned before the Ontario Court of Justice, where the preliminary inquiry dates were vacated. The agent appearing on behalf of counsel for Mr. Flemmings advised the Court that the defence had made efforts to ensure that there would be no adjournment of the first preliminary inquiry, and that the Crown had decided to prefer the indictment only recently even though it had considered doing so at least as early as February of 2020. The agent for Mr. Flemmings put the court and the Crown on notice that the defence would likely be making a s. 11(b) application.

[43] The Crown seeks to deduct the delay triggered by the pandemic from May 25, 2020 until the case was ready to be placed in the Superior Court of Justice, that is, the 12 months and 1 day between May 25, 2021 and May 26, 2021.

[44] Crown counsel submits that preferring the indictment mitigated the pandemic-caused delay. Had the 2021 preliminary hearing proceeded, it would have occupied additional dates between May 25, 2021 until June 14, 2021. Instead, the case moved from the Ontario Court of Justice to the Superior Court of Justice on May 26, 2021.

[45] Crown counsel submits that it is reasonable to subtract the pandemic delay from the net delay, to yield a net adjusted delay for each Applicant that is under the Jordan ceiling as follows:

Agpoon: 39 months and 26 days – 12 months and 1 day = 27 months and 25 days Flemmings: 34 months and 3 days – 12 months and 1 day = 22 months and 2 days

The Emerging Legal Principles on the Pandemic as an “Exceptional Circumstance”

[46] Numerous Ontario 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 16, 2020, is a compelling example of a discrete event amounting to exceptional circumstances: See R. v. Chac-Wai, 2022 ONSC 1269, at para. 33; R. v. Dumpfrey, 2021 ONSC 7758, at para. 38; R. v. Metatawabin, 2021 ONSC 7168, at para. 37; R. v. Schardt, 2021 ONSC 3143, at para. 69; R. v. Greenridge, 2021 ONCJ 468, at para. 23; R. v. Khan, 2021 ONCJ 195, at para. 6; R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Truong, 2020 ONCJ 613, at para. 71.

[47] Delay caused by exceptional circumstances must be analyzed with a view to the unique facts and the context of each case of delay. For example, despite the obvious disruption to the work of the administration of justice, in some cases, the courts have declined to attribute all the following the start of the pandemic to exceptional circumstances, where there have been accompanying disclosure issues on the part of the Crown that added to the initial periods of delay: See R. v. Delaney, 2021 ONCJ 467, at para. 56; R. v. Bui, 2021 ONCJ 379, at para. 39.

[48] This aligns with the discussion of exceptional circumstances in Jordan and the obligation of the Crown to be proactive. The Crown must “show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: Jordan, at para. 70.

[49] This must be the case even where the “past difficulty” is of the scope and scale of the global pandemic. Justice was delayed, yet the administration of justice modified and modernized its systems, adopted triage systems, and continued to operate after the initial period of shutdown in the second quarter of 2020. Each case must be examined to determine whether the Crown took the steps available to it to mitigate the delay.

[50] In other cases, the entire period of delay is attributable to the exceptional circumstance of the pandemic. This can be seen in cases where the pandemic triggered trial date adjournments without other factors intervening. There the courts considered the practical need for managing the backlog created exclusively by the pandemic. In those cases, the entire period from the adjournment to resumption of sittings has been deducted from the calculation of the period of delay: See for example, Simmons; Metatawabin; Dumpfrey.

[51] The rationale for doing so was well articulated by Justice Nakatsuru in Simmons, a case decided in November of 2020, at para. 70:

… Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

[52] Here, the Crown argues that it slightly mitigated the delay that would have resulted from holding the preliminary inquiry in May of 2021 by preferring the indictment and avoiding the delay of holding a preliminary inquiry. The ability of the Crown to mitigate delay using a preferred indictment is well recognized in our law: R. v. Bulhosen, 2019 ONCA 600, at para. 89.

[53] However, the Crown has not explained the delay from the onset of the pandemic in March of 2020 to the date of the preferment of the direct indictment, particularly in light of its earlier consideration of using the route of a direct indictment in the event of defence-initiated delay of the preliminary inquiry.

[54] In its materials, the Crown submits in general terms that the process of obtaining a direct indictment is a privileged process and that further disclosure of the circumstances in which it was obtained is therefore not permitted by law. Crown counsel submits that it is illogical to compare the Crown’s ability to obtain a direct indictment pre-pandemic in response to potential defence delay with the Crown’s ability to obtain a direct indictment during the difficult operational challenges presented by the pandemic in March to May of 2020.

[55] This is a valid point, but it fails to address the Crown’s responsibility to provide some evidence about the time required to obtain this direct indictment, particularly in the face of two pieces of defence evidence:

1. The Crown’s contemplation in February of 2020 that a direct indictment might be a reasonable response to delay in this case; and
2. The fact that, in the three months during the court shutdown, this Crown office had successfully navigated the internal processes required to obtain a direct indictment in another human trafficking case.

[56] With respect to the latter point, there may well have been valid, legitimate reasons for the differences in the two cases. The pandemic may have played a role. However, there is a gap in the Crown’s evidence that ought to have responded to this question. Such evidence would not have required disclosure of privileged case-specific advice to the Attorney General.

[57] At the first court appearance in this case, when the indictment had been preferred, the agent for defence counsel put the Crown on notice that it would be raising a s. 11(b) claim over the delay in preferring the indictment between 2020 and 2021. Given that argument on this Application took place on April 28, 2022, the Crown had time to file evidence addressing this issue.

[58] There are several available inferences from the 12-month delay in the Crown preferring the indictment. This delay might be due to the pandemic, but it might also be due to carelessness, lack of resources, or the setting of priorities. It is unclear which inference should be drawn. On this record, I cannot rule out that mitigation was not carried out when it may have been reasonably available. Jordan provides that the onus is on the Crown to justify cases which exceed the ceiling. The Crown must show why it did not reasonably mitigate the impact of the event that led to the delay, even though the initiating event was not foreseeable.

[59] The information about the delay required to prefer the indictment in this case is solely within the Crown’s control. In the absence of information about the need for 12 months to take that procedural step and given that it was possible for the same office to obtain a direct indictment in a human trafficking prosecution within three months despite the pandemic, I conclude that the Crown has not met its onus in showing it needed 12 months to obtain the direct indictment.

[60] I will deduct the time required to prefer an indictment in the Thornhill matter, which was three months into the global pandemic, to allow for the discrete exceptional circumstance in this case. For Mr. Agpoon, the final amount of delay is 36 months and 26 days. For Mr. Flemmings, the final amount of delay is 31 months and 3 days.

[61] The net periods of delay, after a reasonable adjustment for exceptional circumstances, exceed the 30-month Jordan ceiling for trials in the Superior Court of Justice. I find that each Applicant’s right to be tried within a reasonable time has been infringed by the delay.

Conclusion

[62] For these reasons, I allow the Application. The charges against the Applicants are stayed.

Leiper J. Released: May 10, 2022