Court File and Parties
COURT FILE NO.: CR-22-70000172-0000 CR-22-70000133-0000 DATE: 20240126
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – BRENDA ANDREW Applicant
Counsel: Sandra Duffey, Counsel for the Crown Respondent Pierre Bonsu, Counsel for the Applicant Andrew
HEARD: January 19, 2024
M.A. CODE J.
Reasons for judgement on section 11(b) charter application
A. Overview
[1] The Applicant Brenda Andrew brought a s. 11(b) Charter Application alleging that her right to trial within a reasonable time had been violated. She is awaiting trial in this Court on various fraud, forgery, and credit card theft offences. The charges were laid on August 7, 2020 and the scheduled trial in this Court will not be completed until March 8, 2024. The total delay of 43 months clearly exceeds the presumptive 30 month ceiling set out in R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.).
[2] I was appointed as the “case management” judge for this case, pursuant to s. 551.1 of the Criminal Code. I heard the s. 11(b) Application on January 19, 2024. A large documentary record was filed by the parties. In addition, the Applicant Andrew was briefly cross-examined on her affidavit. At the end of oral argument, I dismissed the Application with Reasons to follow.
[3] By the end of the hearing, the parties were in substantial agreement that there had been about nine months of “defence delay” in the Ontario Court of Justice. This reduced the net delay for Jordan purposes to 34 months. The only real issue in dispute was whether the pandemic backlog “exceptional circumstance” caused any of the delay in the Superior Court and, if so, whether it was sufficient to justify delay in excess of the Jordan ceiling. In this regard, see R. v. Agpoon, 2023 ONCA 449.
[4] These are my Reasons for dismissing the s. 11(b) Application.
B. Facts
[5] The Applicant Andrew was an employee of a company known as Vertechs Design Inc. She was responsible for payroll, bookkeeping, and payments to suppliers. It is alleged that she used a company credit card for personal expenses such as airplane and concert tickets. It is also alleged that she used the company payroll system to make unauthorized payments to herself and that she forged documents to cover up these fraudulent payments. Finally, it is alleged that she forged a note from a doctor about her medical condition, when the police were trying to arrange for her surrender on the present charges. The total amount of the alleged loss from these offences was over $200,000. Once she surrendered, the Applicant Andrew was released on the least restrictive form of bail, namely, an undertaking to the officer-in-charge.
[6] It is apparent from the record that this is a relatively complex case and that it involved a large amount of disclosure. The trial will engage the law relating to documentary evidence and the law of theft, fraud, and forgery. The charges allege a substantial breach of trust and it will likely result in a penitentiary sentence, if the Applicant is convicted after trial. For all these reasons, it is a case that requires counsel and it is a case where counsel would likely require a substantial retainer. These became the early reasons for delay in the case.
[7] The history of the proceedings can be divided into five main blocks of time, as follows:
An initial intake period in the Ontario Court of Justice that lasted five months, from August 7, 2020 until January 11, 2021. During this period, initial disclosure was prepared by the assigned Crown. It was then provided to defence counsel (Ms. Goldlist) between January 4 and 8, 2021. In addition, the Applicant made efforts to reach a retainer agreement with Ms. Goldlist. At an appearance in December 2020, the Applicant stated that she “will be retaining” Ms. Goldlist “next week”, which presumably explains how and why the Crown released a “voluminous” package of disclosure to Ms. Goldlist in the first week of January 2021. I am satisfied that this initial five month period of delay was appropriate for a case of this nature and that neither the Crown nor the defence can be criticized for these early efforts to get the proceedings started in a reasonable amount time. Accordingly, the initial intake period forms part of the Jordan thirty month presumptive ceiling;
The second block of time extends from January 11, 2021 until August 5, 2021. During this almost seven month period, there were ten appearances in the Ontario Court of Justice before various judges and justices of the peace. Every appearance resulted in an adjournment after the Applicant Andrew repeatedly asked for more time to finalize a retainer of counsel. She was able to repeatedly obtain these arguably generous adjournments because the nature of the case required counsel (as explained above) and because the Applicant undoubtedly wanted to be represented by counsel. In addition, the Applicant expressed her requests for more time in a manner that suggested that the retainer of counsel was imminent. For example, she provided the Court with specific dates for her scheduled meetings with counsel and she made statements to the effect that the retainer would be finalized “within two to three weeks maximum” or by “next Friday”. In other words, the Applicant gave apparently definitive assurances that counsel would be retained in relatively short order. The Crown repeatedly expressed concern about the ongoing delays. As a result, Chisvin J. became seized with the matter and took on a case management role. He agreed to the Applicant’s request for one “last extension” in late July 2021 but made it clear that this would be the final adjournment. This warning succeeded and on August 5, 2021, the Applicant appeared before Chisvin J. with counsel. On this date, Mr. Bonsu went on the record as counsel for the Applicant Andrew, although his retainer was limited to resolution discussions. The Applicant had previously expressed interest in a possible resolution of the case, during various exchanges with Chisvin J. in open court on her earlier appearances. In my view, this second period should be characterized as “defence delay”, for reasons that I will explain below. After deducting a three week period in June 2021 when the assigned Crown was unable to appear, the sole cause of delay for the remaining six months was the Applicant’s need for more time to retain counsel;
The third block of time extends from August 5 to October 27, 2021. During this almost three month period, Mr. Bonsu sought and obtained two further adjournments. The first adjournment was to review disclosure and the second adjournment was to schedule and then hold a JPT before Chisvin J. The Crown initially sought to characterize this period as further “defence delay.” However, when pressed during oral argument, Ms. Duffey wisely relented and agreed that these steps taken by Mr. Bonsu, once he was retained, were reasonable and necessary for the Applicant’s full answer and defence. Accordingly, this three month period forms part of the Jordan thirty month presumptive ceiling;
The fourth block of time extends for three months, from October 27, 2021 to January 27, 2022. It is apparent from the four appearances in court during this period, from the emails exchanged between counsel and the court, and from the Applicant Andrew’s testimony before me, that the parties had arrived at a resolution agreement as a result of the October 27th JPT. The resolution agreement required the Applicant to make a $100,000 restitution payment into Mr. Bonsu’s trust account, prior to pleading guilty. Mr. Bonsu advised Chisvin J. in open court that “she just needs up to four weeks to get the funds” (apparently from certain family members and friends). Counsel scheduled December 30, 2021 as the date for the guilty plea. When the monies had not been paid into Mr. Bonsu’s trust account by that date, one final adjournment was obtained. By this point, Chisvin J. was “skeptical” as to whether this was “just another delay” but he allowed the final adjournment. On January 27, 2022, the resolution agreement was abandoned, the Applicant was arraigned, she elected trial by jury in the Superior Court, and she waived her right to a preliminary inquiry. For reasons I will explain below, this three month period should be characterized as “defence delay”;
The fifth and last block of time is just over two years and it is the time that the case has been in the Superior Court. It extends from the January 27, 2022 committal in the Ontario Court of Justice to the anticipated end of the scheduled trial on March 8, 2024. It is this period that was the main focus of the s. 11 (b) Charter argument before me. The first appearance in Practice Court was on February 28, 2022. At this time, a JPT was scheduled for March 18, 2022 before Himel J. On the standard Pre-Trial Conference Report at p. 4, Himel J. correctly noted that the 30 month Jordan presumptive ceiling ran until “February 2023” (to be precise, it ran from August 7, 2020 to February 7, 2023). Himel J. then noted on the Report that the net Jordan date was “December 2023” (or, more precisely, December 7, 2023). Himel J. set out the basis for this addition of 10 months to the “Net Jordan Date” at p. 6 of the Report, where she noted that both Crown and defence counsel were agreed that this ten month extension of the Jordan ceiling was due to “defence delay” in the Ontario Court of Justice. In my view, there had actually been nine months and not ten months of “defence delay”, as explained above (six months to finalize the retainer and three months to try to raise restitution monies). Counsel appearing at the JPT did not have the benefit of reading and analyzing the numerous transcripts that have now been filed before me on the s. 11(b) Application (nor did Himel J.), so their one month error is not surprising. Finally, the Report prepared by Himel J. noted at p. 6 that the defence did not intend to bring a s. 11(b) “stay application”. On April 25, 2022, counsel appeared in Practice Court and set the date of February 26, 2024 for a two week jury trial. Mr. Bonsu’s only statement on the record about the trial date was that, “I’ve been working with Ms. Duffey in obtaining trial dates. We’ve gotten trial dates.” It must have been apparent to the parties that the scheduled February 26, 2024 trial date was almost three months past the net Jordan date of December 7, 2023 (given that this was the “Net Jordan Date” that counsel themselves had provided to Himel J. at the JPT). There was no mention on the record in Practice Court of any concern about s. 11(b) delay and no request for earlier dates. On the Trial Confirmation Form filed in Practice Court, it was stated that the Crown’s earliest available date was October 17, 2022, defence counsel’s earliest available date was March 1, 2023, and the Court’s earliest date was February 26, 2024. In other words, the date set for trial was the earliest date that the Court had available and it was almost three months beyond the net Jordan date. In the next section of these Reasons, I will discuss the COVID-19 pandemic backlog that existed at the time when this trial date was set in early 2022. The first mention of any concerns about s. 11(b) delay was on October 18, 2023. This was 18 months after the trial date had been set. The Applicant was still represented by Mr. Bonsu and he filed a Notice of Application seeking a stay of all proceedings due to unreasonable delay. The Trial Coordinator’s Office advised Mr. Bonsu that this pre-trial application had not been addressed at the JPT before Himel J. and that a further JPT was required by the Rules of Court. Accordingly, a further JPT was held before Allen J. and the present s. 11(b) Application was scheduled. I will address the proper characterization of this last and critically important two year period of delay in the next section of these Reasons.
C. Analysis
[8] The modern Jordan framework for analysing s. 11(b) delay is now well-known and I need not recite it in these Reasons. The parties agree, as do I, that the total delay in this case is 43 months. There is also substantial agreement between the parties that there are two periods of “defence delay”, as summarized above, and that they total nine months. I will briefly discuss these two periods of “defence delay”.
[9] The first period of “defence delay” was the six month period when the Applicant repeatedly obtained further adjournments so that she could have more time to raise the funds needed to finalize a retainer of counsel. There had already been a five month intake period which, in my view, was a reasonable and sufficient amount of time to retain counsel. Indeed, the Applicant had stated on the record during the last month of this intake period that she was retaining counsel “next week,” and disclosure was then provided to that counsel. The leading authority on the meaning of “defence delay” is R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 at paras. 28-35 (S.C.C.). By the end of the initial five month intake period, the Crown and the Court were ready to proceed with the usual next steps (a Crown pre-trial followed by a JPT). However, the Applicant Andrew was not ready to proceed. She repeatedly asked for further delay during the ensuing six month period, exhibiting the kind of “marked indifference toward delay” which the defence should not be able to seek “and then have it count towards the Jordan ceiling”, as the Court put it in Cody. Also see: R. v. Pogachar, 2021 ONSC 5826 at paras. 24-32.
[10] The second period of “defence delay” was the three month period after a resolution agreement was reached at the October 27, 2021 JPT before Chisvin J. This delay was sought by the defence because the Applicant needed more time to raise restitution monies, which could then be paid into court prior to a guilty plea and which would significantly mitigate any sentence to be imposed. This kind of delay, sometimes described as putting the case on a “resolution track”, has the effect of stopping the case from proceeding to trial. It is of obvious benefit to the defence and to the administration of justice and so this kind of adjournment is routinely granted. Express waivers of s. 11(b) often accompany these kinds of delays and, in other cases, a s. 11 (b) waiver can be implied from the communications between Crown and defence counsel. See e.g., Duncan J.’s thoughtful and well-reasoned decision in R. v. Busch, 2021 ONCJ 200. In the present case, there was no express waiver on the record and there is no evidence of any communications between Crown and defence counsel about these further delays. In these circumstances, I cannot find an express or implied waiver of s. 11(b). However, I agree with Woollcombe J. in R. v. Coutinho, 2019 ONSC 1492 at paras. 40 and 104, which was a case where there were repeated ongoing delays due to resolution discussions (sometimes with express s. 11(b) waivers and sometimes without). She held that when the defence stops the progress of a case, in order to negotiate a resolution agreement, it amounts to “defence delay” in the Cody sense because it exhibits “marked indifference toward delay”. I do not mean this in any pejorative sense in the present case, where a resolution was successfully agreed to but delay was needed in order to carry out the agreement. The defence was indifferent to this delay because the delay was beneficial to their interests. If the defence efforts to implement the resolution agreement had succeeded, there never would have been any s. 11(b) issue. When those efforts failed, the defence should not be allowed to argue that the Jordan clock continued to run while they were failing to implement a resolution agreement that had stopped the case from progressing to trial.
[11] As a result of the two periods of “defence delay” totalling nine months, the net delay for Jordan purposes is 34 months. The Crown must justify the resulting delay, which exceeds the presumptive Jordan ceiling, on the basis of “exceptional circumstances”.
[12] There is an overwhelming body of binding authority to the effect that the COVID-19 pandemic was an “exceptional circumstance” that can justify delay. See: R. v. Agpoon, supra at para. 4. The only issue in the present case is whether the pandemic actually had an impact on scheduling the trial date and, if so, the extent of that impact. In my view, both the factual and legal aspects of this issue are relatively straightforward. As a factual matter, the present case entered the Ontario Court of Justice on August 7, 2020, a few months after the outbreak of the COVID-19 pandemic in March 2020 and after the courts had begun to completely shut down and/or limit access in various ways. On February 28, 2022, the Applicant appeared in the Superior Court of Justice for the first time, shortly after her committal. This date probably represents the very worst time for the “pandemic backlog”. By the end of February 2022, that backlog had been building up in this Court for almost two years. There had been repeated suspensions of jury trials, by Order of the Chief Justice, with the last such suspension ending on February 28, 2022 (the very same day that the Applicant Andrew’s Indictment first arrived in this court). In other words, the “pandemic backlog” in the Superior Court, especially for jury trials, would have been at its worst state on the date when the Applicant’s Indictment arrived. Jury trials resumed on that date (as they had previously resumed for certain periods in the summer and fall of 2021) but there were a limited number of court rooms and jury deliberation rooms that had been reconfigured in a way that would allow social distancing between jurors, court staff, and counsel. More significantly, there were a large number of serious crimes of violence with accused in custody, where previous trial dates during the preceding two years had already been adjourned due to the pandemic closures, suspensions, and limitations. These cases were obviously given priority access to the newly available dates for jury trials.
[13] Turning to the legal effect of these court closures, jury trial suspensions, and court room limitations and reconfigurations during the pandemic, it is set out in the Court of Appeal’s recent decision in R. v. Agpoon, supra at paras. 32-34. The Court reasoned as follows:
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.
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.
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. [Emphasis added].
[14] Applying the above principles from Agpoon to the facts of the present case, I am satisfied that the “pandemic backlog” must have had a significant impact on the date set for trial. The Trial Confirmation Form that was filed with the Court on April 25, 2022, when setting the trial date, stated that the “Court’s First Available Date” was February 26, 2024. This earliest available date was 22 months away, which is not normal. Forestell J., who manages the long criminal trial list in Toronto, recently stated in R. v. Alli, 2023 ONSC 5829 at para. 15:
Trials are generally scheduled in this jurisdiction anywhere from 5 to 18 months from the time of the first appearance. The delay varies within that range depending on factors such as the complexity of the case, whether the accused person is in custody, and the need to have applications heard in advance of trial. [Emphasis added].
In R. v. Buick and Marsh, 2023 ONSC 42 at paras. 33-35, my colleague Schabas J. addressed delays when setting a date on May 31, 2021 for a three week jury trial. This was a point in time when the “pandemic backlog” had been building up in this Court for about a year (and not for two years, as in the present case). The earliest available trial date in May 2021 in Buick and Marsh was 19 months away. Schabas J. reasoned as follows:
In May 2021, the earliest trial dates that could be obtained for the trial of this matter were in January 2023. This was due to the COVID-19 pandemic. The comments of counsel at the time and during the summer of 2021, the placing of the matter on a priority list to try to obtain earlier dates, and the scarcity of trial court availability, show that the strain on the courts caused by the pandemic was recognized by everyone as the cause of the lengthy delay until trial.
As Dunphy J. observed in Titus, 2023 ONSC 3484, in June 2022, at para. 17:
The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.
There is no doubt, therefore, that the long delay in reaching trial in this matter is due to the COVID-19 pandemic. I observe that many of the cases in which similar lengthy delays have occurred arise from dates which were set in 2021, all due to the backlog caused by the pandemic: see, e.g., Titus; Hassan; R. v. Cann, 2022 ONSC 2699; R. v. Hamblett, 2022 ONSC 5726.
[15] I agree with Schabas J. If a 19 month delay in setting the trial date in Buick and Marsh in May 2021 was due to the pandemic backlog, then the 22 month delay in setting the trial date in the present case in April 2022 was even more affected by that same backlog, which had continued to grow during late 2021 and early 2022 (until at least March 1, 2022 when some jury trials resumed in some court rooms).
[16] The remaining issue is quantifying the amount of delay that is attributable to the pandemic “discrete event”, when setting the trial date in this case. This is an inherently difficult hypothetical exercise and some judges have held that it is unnecessary. As Schabas J. explained in R. v. Buick and Marsh, supra at paras. 48-52:
In concluding that the Crown has met its onus to rebut the presumption of unreasonableness that arises from a 34-moth delay, the question arises as to how much time should be deducted. This is difficult to answer as it would require constructing a hypothetical scenario of what dates would have been available to the Court, the Crown, and the defence in the absence of the suspension of court activities.
There is no need to engage in such an exercise, for at least two reasons. First, but for the pandemic, there is no question that this case would have been tried within 30 months. Secondly, although Jordan created presumptive ceilings, the Court stressed that reasonableness is still the test, and is not merely a mathematical exercise.
In other cases in which the pandemic has caused delay beyond the 30-month threshold, judges have not felt it necessary to precisely quantify the delay, noting the difficulty in doing so: Robinson, at para. 103; Cann, at para. 24.
In this case, the total length of the delay to the end of the trial is 34 months, or four months over the 30-month ceiling. Jury trials had already been suspended for 12 months, creating a large backlog when the trial date was set in May 2021. Jury trials were suspended for an additional three months thereafter (through June 2021 and then from December 2021 to February 2022) creating even more difficulty as the Crown sought earlier dates. In my view it is reasonable, if necessary, to conservatively attribute at least six months of delay to the exceptional circumstance of the pandemic, resulting in a net delay of 28 months. [Emphasis added].
[17] If six months was a conservative assessment of the impact of the “pandemic backlog” on the trial date set in Buick and Marsh in May 2021, then the impact on the trial date set in the present case in April 2022 would be greater, simply because the backlog had continued to grow during late 2021 and early 2022. Mr. Bonsu fairly conceded that two week jury trials could usually be scheduled within 12 months in Toronto, prior to the “pandemic backlog”. This concession is consistent with Forestell J.’s assessment in Alli, quoted above, and with my experience. Accordingly, I am satisfied that approximately ten months of the 22 month delay in setting the trial date in this case was due to the “pandemic backlog”. This is not a precise calculation, given the hypothetical nature of this exercise.
[18] The Crown and the Court must take steps to mitigate the effects of “discrete events”. This is not a significant issue in the present case and Mr. Bonsu did not press the point. The two appearances by counsel, both at the JPT before Himel J. in March 2022 and when setting the trial date in Practice Court in April 2022, left the impression that the parties accepted the reality that the earliest available trial date was a few months beyond the “net Jordan date”. There was no expression of concern and no mention of any s. 11(b) Charter Application that was being considered. The practical reality at that time was that trials were proceeding on dates beyond their “net Jordan date”, because of the “pandemic backlog”. By the time that the Applicant first mentioned any s. 11(b) issue, and then scheduled the required further JPT before Allen J. on October 31, 2023, it was too late to realistically reschedule or to meaningfully mitigate the delay caused by a trial that was set to proceed on February 26, 2024. Mr. Bonsu fairly conceded that this late notice of the s. 11(b) issue in the present case is a relevant consideration when assessing the duty to mitigate.
[19] After deducting approximately ten months due to the “pandemic backlog” exceptional circumstance, the remaining delay is 24 months, which is below the 30 month presumptive Jordan ceiling. There is no suggestion in this case that delay below the ceiling violates s. 11(b).
D. Conclusion
[20] For all the above reasons, I dismissed the s. 11(b) Charter Application at the end of oral argument on January 19, 2024.
M.A. Code J.
Released: January 26, 2024