NEWMARKET COURT FILE NO.: CR-20-1224-00AP DATE: 20231018 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – YUE CAO Appellant

Counsel: Phillip Perlmutter, for the Crown (Respondent) Peter Lindsay, for the Appellant

HEARD: June 30, 2023

On Appeal of the Judgment of the Honourable Justice Henschel dated March 25, 2022

REASONS FOR DECISION

M.L. EDWARDS, R.S.J.

Overview

[1] The appellant appeals his conviction for impaired driving imposed by Henschel J. on March 25, 2022. The appellant argues that the trial judge erred in dismissing his Charter application for violation of his s. 11(b) rights and in her treatment of the evidence. As it relates to the 11(b) issue, the issues argued by the appellant engages an analysis of the exceptional circumstance issue raised by the COVID19 Pandemic (Covid). As it relates to the credibility issues, the appellant argues that the trial judge drew unreasonable inferences about the plausibility of the appellant’s evidence about his actions at the beginning of the pandemic and also argues that the trial judge erred in applying uneven scrutiny to the Crown and defence evidence.

The Factual Evidence as it Relates to the 11(b) Issue

[2] The appellant was arrested on March 20, 2020. The trial was completed on March 8, 2022. The actual time from when the appellant was charged with impaired driving to the completion of his trial was 23 months and 19 days.

[3] At trial, the appellant argued that the net delay after deducting defence delay and exceptional circumstances was 20 months and 9 days. At trial the Crown submitted that the delay after deducting defence delay and exceptional circumstances was 14 months and 12 days. The trial judge concluded that the delay was 14 months and 9 days.

[4] There are two main time periods which are the focus of the appellant’s argument as it relates to the net delay in this case. The first period challenged by the appellant is between September 18, 2020 and January 14, 2021 which was characterized by the trial judge as an exceptional circumstance on account of covid.

[5] The appellant’s challenge with respect to the time period between September 18, 2020 and January 14, 2021 relies on the appellant’s argument that the local trial coordinator failed to respond to five emails from counsel for the appellant between September 18, 2020 and December 24, 2020. The appellant submitted his “Trial Submission Form” on September 18 late in the afternoon. It is conceded by the Crown that the appellant made diligent efforts between October 2 and December 24, 2020 to obtain a trial date.

[6] On August 12, 2020 the Chief Justice issued a Practice Direction which the appellant contends required hearings for new out of custody cases to be set on or before September 28, 2020. In fact, the Practice Direction states that September 28, 2020 was the “earliest” date on which a new date could be set for a hearing. This was a position adopted by counsel for the appellant at trial.

[7] The appellant argues that the time period between January 6, 2022 and March 3, 2022 was wrongly characterized as defence delay. This period is challenged largely on the basis of the trial coordinator looking to schedule a two-day trial as opposed to a one-day trial with consecutive dates.

Position of the Appellant as it Relates to the 11(b) Issue

[8] The appellant argues that there were three separate errors made by the trial judge in dismissing the 11(b) application brought by the defence. The first error is that even if the delay was below the 18-month Jordan threshold, the trial judge erred by failing to find that the case took markedly longer than it reasonably should have and thus erred in failing to stay the proceedings.

[9] The second alleged error raised by the appellant relates to the time period from September 18, 2020 to January 14, 2021 which the appellant argues, the trial judge incorrectly held should be treated as being an exceptional circumstance due to covid.

[10] The third alleged error advanced by the appellant relates to the time period from January 6, 2022 to March 3, 2022 and specifically the failure of the trial judge to properly consider defence availability as well as the trial judge’s treatment of the trial coordinator’s direction to schedule trial continuation dates on consecutive days.

[11] As it relates to the first error, the appellant argues that the net delay as found by the trial judge of 14 months and 9 days was markedly longer than it should have been. The appellant argues that the trial judge failed to take “a bird’s eye view” of whether the case took markedly longer than it should have taken.

[12] Counsel for the appellant points to a number of cases where the court has determined that an acceptable net delay for a routine impaired driving case was as little as 13.5 months. Specifically counsel references the following decisions that establish ranges from a low of 13.5 months to a high of 17 months, 7 days:

R. v. Ambrose [2022] O.J. No. 4792 (O.C.J) - 17 months, 7 days R. v. Bole [2019] O.J. No. 1565 (O.C.J) - 15.75 months R. v. Chor [2017] O.J. No.1121 (O.C.J) - 16 months R. v. DeSouza [2016] O.J. No. 5091 (O.C.J) - 15 months R. v. Gleiser [2017] ONSC 2858 (S.C.J) - 15-16 months R. v. Mccourt [2006] O.J. No. 1800 (S.C.J) - 13.5months R. v. Reynolds 2016 ONCJ 606, [2016] O.J. No. 5300 (O.C.J) - 15.5 months

[13] As it relates to the second error argued by the appellant concerning the time period between September 18, 2020 and January 14, 2021, the appellant relies on the numerous efforts made by counsel to obtain a trial date with no response from the trial coordinator. The appellant argues that this timeframe should not be attributable to covid as an exceptional circumstance because his counsel was making diligent efforts to fix an early trial date.

[14] The appellant argues that the trial judge used various directives published by the Chief Justice, which were never adduced by the Crown into evidence. The appellant argues that the trial judge erred by relying on these directives as it relates to the timeframe between September 18, 2020 and January 14, 2021 to determine that this was an exceptional circumstance.

[15] As it relates to the January 6 through March 3, 2022 time period, attributed as defence delay, the appellant argues that the trial judge was in error in her determination that the defence was not available on dates offered by the trial coordinator.

The Crown Position as it Relates to the 11(b) Issue

[16] The Crown argues that the appellant’s challenge to the trial judge’s use of the Chief Justice’s covid Practice Directions runs contrary to numerous decisions of this court and the Court of Appeal.

[17] The appellant argued that a trial judge who regularly presides in the jurisdiction cannot take into account the reality of circumstances that were unfolding together with the Notices to the Profession in ultimately making an assessment as to whether or not there were exceptional circumstances. Underlying this argument is the suggestion by the appellant that evidence was required for those exceptional circumstances. The Crown disagrees and argues that there was abundant evidence of the exceptional circumstances before the trial judge.

[18] The Crown argues that the trial judge was entitled to take judicial notice of the Chief Justice’s Practice Directions and she was entitled to rely on her knowledge of her own court. In that regard, the Crown relies on the following decisions:

R. v. Toor, 2022 ONCJ 8 at para 19 R. v. Belzil, 2021 ONSC 781 at para 87 R. v. Majeed, 2019 ONCA 422 at paras 7-9 R. v. Kirkopoulos, 2022 ONSC 6440, at paras 52, 53, 70 – 73

[19] As it specifically relates to the timeframe between September 18, 2020 and January 14, 2021 the Crown, while acknowledging that the appellant did in fact make diligent efforts to move his case along, nonetheless fails to take into account the fact that the trial coordinator as well as the entire justice system was forced to respond to unprecedented challenges which were imposed by covid which ultimately reduced the pool of judicial resources. The Crown argues that the trial coordinator’s response which was attacked by the appellant as being inadequate was in fact attributable to the impact of covid and that the trial judge did not err in deducting the period of September 18, 2020 to January 14, 2021.

[20] Dealing with the appellant’s argument as it relates to the timeframe between January 6, 2022 and March 3, 2022 the Crown argues that the trial judge correctly held the appellant responsible for the delay during this timeframe because the appellant had indicated that he wanted the case to be heard on consecutive dates and did not waiver from that position. There was never any request by defence counsel for individual dates for trial or continuation, nor was there any complaint when none was offered.

[21] The Crown argues that the defence was not proactive in suggesting to the trial coordinator that he had individual dates available. The Crown argues that the trial judge did not err in rejecting what is described as the appellant’s ex post facto attempt to rely on his availability on individual dates as opposed to consecutive dates.

The Standard of Review

[22] The legal standard of review as it relates to the facts of this case and the attribution of delay is a question of law. As such, the applicable standard of review is one of correctness. As it relates to the factual findings of the trial judge those findings are owed deference by an appellate court absent palpable and overriding error: see R. v. Sheppard, 2009 SCC 35 at para. 20; Housen v. Nikolaisen, 2002 SCC 33 at para. 37 and R. v. Tran, 2012 ONCA 18 at para. 19.

Analysis

Covid and 11(b)

[23] The appeal in this matter was heard in excess of three years after the onset of covid. The appellant was arrested for impaired driving shortly after the onset of covid. Covid continues to impact the entire judicial system to this day.

[24] While it is over three years ago since covid effectively shut down the judicial system as we then knew it, it is worth recalling that the Provincial Declaration of Emergency – Ontario Regulation 50-20 was put into place on March 17, 2020 and effectively closed the courts except for anything considered to be an emergency. While an impaired driving charge is a serious offence (and undoubtedly the delay in the scheduling and ultimate disposition of an impaired driving charge is important to an accused), few would argue that an impaired driving charge constitutes an emergency.

[25] Shortly before the argument of this appeal, the Ontario Court of Appeal released its decision in R. v. Agpoon, 2023 ONCA 449. A number of fundamental principles from Agpoon can be summarized as follows:

(a) Covid falls within a category of discreet exceptional circumstances laid out in Jordan which specifically references medical emergencies In Agpoon the Court of Appeal noted that the reference to medical emergencies could be and should be generalized for the pandemic (see para. 19 of Agpoon). (b) As in Jordan the Court of Appeal in Agpoon discouraged “complicated micro counting” in determining delay particularly in the context of covid and quoted para. 91 of Jordan with approval specifically that “trial judges should not parse each day or month…but should step back from the minutia and adopt a bird’s eye view of the case”. (c) Where a case falls below the presumptive ceiling – 18 months in the Ontario Court of Justice and 30 months in the Superior Court of Justice, the onus is on the defence to demonstrate in clear cases that the delay is unreasonable. The Court of Appeal at para. 26 of its reasons referenced a need for trial judges to apply their knowledge of the local perspective in conducting its assessment of covid-related delay for Jordan purposes.

[26] Underlying the arguments of the appellant in this case is the implicit assumption that the appellant’s case should be treated in isolation to the entirety of the impact of covid and the court system as a whole.

[27] When the courts did reopen not all of the courts were available to conduct a trial. Many of the courtrooms had to be physically changed to allow for social distancing with a reduced capacity for in-person hearings.

[28] When the courts reopened, courts were forced to triage and prioritize the order in which cases could be heard. For obvious reasons, in-custody criminal matters were given priority over out-of-custody matters and priority was given to ongoing trials as opposed to new trials.

[29] I entirely agree with the analysis of the trial judge as it relates to the time period between July 10, 2020 and January 14, 2021, a period of 188 days as being treated as an exceptional circumstances which had to be subtracted from the period of net delay. The trial judge was in as a good of position as any trial judge conducting trials in a busy jurisdiction such as Newmarket. The trial judge was alive to the reality of what was happening when the courts reopened, specifically that the scheduling of new trials and rescheduling existing trials was a complex and difficult task.

[30] A significant backlog of cases was created by covid. What is often lost sight of is the fact that once the courts reopened new cases were coming into the system. As the trial judge observed at para. 67 of her reasons it was not a lack of resources that was causing the court an inability to deal with the backlog of old and new cases coming into the system, rather covid was the cause. As the trial judge summarized at para. 67 covid had a “system-wide impact of unprecedented proportions, never seen before in our lifetime”.

[31] As it relates to the three and half month delay between September 18, 2020 and January 14, 2021, the trial judge correctly observed that the first possible day that this case was eligible to be set for trial was not until September 28, 2021. The trial judge was correct in her conclusion that this three and half month delay was directly attributable to the exceptional circumstances caused by covid. The trial judge was equally correct in her conclusion that the Crown could not be faulted for any failure to mitigate the impact of covid, specifically her conclusion that there was little that any individual Crown could do at the local level to mitigate the delay in a given case.

[32] As it relates to the period between January 6, 2022 and March 3, 2022, the trial judge correctly concluded that this period of time should be attributed to defence delay given that multiple dates had been offered during this time period and defence counsel was not available.

[33] Dealing with the argument advanced by the appellant that if the total net delay in this matter was slightly more than 14 months, the trial judge should nonetheless have granted a stay, the trial judge was correct in her conclusion that this impaired driving case was not a complex case. The trial judge, in my view, was correct in applying her local knowledge of the busy Newmarket courthouse in arriving at her conclusion that a delay of 14 months and 9 days was in the context of covid an acceptable time frame for this case to get to trial. I adopt with approval the following comments of the trial judge:

While less than ideal it is not markedly longer than it reasonably should take for a case to complete in a busy jurisdiction such as York Region, especially in the context of the pandemic which continues to impact the criminal justice system and the movement of cases through the system.

[34] While understandable the arguments of the appellant amount to the type of “complicated micro counting” that the Jordan Court and the Court of Appeal in Agpoon have both discouraged particularly in the context of the pandemic. The Court of Appeal in Agpoon has again warned trial judges not to parse each day or month but rather should step back from the minutia and adopt a bird’s eye view of the case. This is precisely what the Trial judge did in this case,

[35] The trial judge in this case gave detailed reasons as to why 11(b) was not engaged in her ultimate determination not to grant a stay as requested by the appellant. The trial judge’s decision as it relates to the application of an 11(b) was detailed, thoughtful and correct. The appellant’s appeal as it relates to the 11(b) issue is dismissed.

The Trial Judge’s Treatment of the Evidence of Mr. Cao

Position of the Appellant

[36] The appellant argues that the trial judge unfairly looked through a “2022 lens” with hindsight regarding the plausibility of Mr. Cao’s decision to visit his mother while he was ill during the beginning of the pandemic on March 20, 2020. It is argued by the appellant that the trial judge unfairly examined Mr. Cao’s knowledge at the very early stage of the pandemic on March 20, 2020 retrospectively to draw unfavourable conclusions about the plausibility of his evidence.

[37] The appellant also argues that the trial judge applied a “much harsher lens” to the appellant’s evidence than it did to the Crown’s witnesses, more specifically as it relates to the credibility and reliability of police officer Delorenzi. In that regard it is argued that the trial judge did not properly consider the weaknesses in the evidence of police officer Delorenzi as well as the civilian witness, Ms. Ahmed, who testified with respect to her observations of the appellant’s driving on the night in question.

Position of the Crown

[38] The Crown argues that an appellate court can only interfere with a trial judge’s factual inferences where the finding amounts to a palpable and overriding error, meaning specifically that it is clearly wrong, unsupported by the evidence, or otherwise unreasonable and can be shown to have effected the result.

[39] The Crown argues that the knowledge that the appellant had with respect to covid on March 20, 2020 was well supported in the evidence and that the trial judge did not resort to a retrospective analysis through a 2022 lens as suggested by the appellant.

[40] As it relates to the appellant’s argument concerning uneven scrutiny the Crown argues that as a ground of appeal it is “notoriously difficult to prove” as reflected in the Court of Appeal decision in R. v. B.T.D., 2022 ONCA 732 at para. 54.

Analysis

[41] The decision of a trial judge as it relates to factual inferences can only be interfered with by an appellate court where the finding amounts to a palpable and overriding error. Simply put, the finding of a trial judge must be clearly wrong, unsupported by the evidence or otherwise unreasonable and must be shown to have affected the result: see R. v. Clark, 2005 SCC 2, 2005 S.C.C. 2 at para. 9 and R. v. Tsekouras, 2017 ONCA 290 at paras. 229 - 231.

[42] In this case the trial judge noted in her reasons that the appellant’s testimony was inconsistent and that it did not make sense on important issues. The trial judge also noted that the appellant contradicted himself as it related to the severity of his symptoms both before and after he had visited his mother. Further contradictions were reflected in the trial judge’s reasons as it relates to what steps the appellant took to protect his mother from possible infection. As it relates to the alleged bad driving, the trial judge noted that the appellant acknowledged his bad driving and blamed it on his deteriorating condition from fever, dizziness and various muscle aches. The trial judge drew the inference that the appellant’s judgment was impaired because he chose to keep driving rather than pull his vehicle over to the side of the road.

[43] The trial judge was entitled to draw the inferences and make the credibility findings that she did based on the evidence before her. Her findings were reasonable and were supported by the evidence.

[44] As it relates to the appellant’s evidence concerning his alcohol consumption, the trial judge provided extensive reasons for rejecting the appellant’s evidence. Her reasons in that regard were extensive. Amongst her reasons for rejecting the appellant’s evidence were the following:

a. The appellant could not explain what was happening that caused the significant and prolonged period of bad driving; b. The appellant’s symptoms were so severe that it caused him to swerve within and across lanes and that he failed to respond to lights in a timely fashion and did not stop until pulled over by the police; c. Despite the alleged significant symptoms occurring in the context of covid, the appellant did not seek medical attention after his release but went home and isolated for 14 days; and d. Despite the fact that the appellant suspected that he might have covid and that his symptoms were getting worse, the appellant went ahead and spent three hours continuing his visit with his mother.

[45] It is also worth noting the appellant’s admission as it relates to the consumption of alcohol. It is also important to note that the appellant admitted the description of his driving and physical condition and despite his knowledge in that regard the appellant chose to continue driving until he was stopped by the police. The trial judge, based on these admissions and her assessment of the entirety of the evidence, much of it undisputed as it relates to the appellant’s bad driving, correctly concluded that the Crown had proven the case against the appellant beyond a reasonable doubt.

[46] As it relates to the appellant’s argument concerning the uneven scrutiny of the Crown’s evidence, the trial judge provided detailed reasons as to why she accepted the evidence of police officer Delorenzi as it related to indicia of the appellant’s impairment specifically the evidence from the corroborative cruiser camera footage which went to the reliability of the police officer’s testimony.

[47] While the appellant in his submissions argues that the evidence of police officer Delorenzi was critical to the finding of impairment, in fact the evidence before the trial judge in this regard included not just the evidence of the appellant’s consumption of alcohol, but also the evidence of his unsafe driving, both of which the trial judge accepted as making out the charges before the court.

[48] There is no basis to interfere with the trial judge’s assessment of the evidence, both as it relates to credibility and reliability. Nor is there any reason to interfere with the reasons of the trial judge as it relates to the suggestion that there was uneven scrutiny of the Crown evidence and the appellant’s evidence.

[49] For these reasons the appeal is dismissed.

EDWARDS, R.S.J. Released: October 18, 2023