Court of Appeal for Ontario

Citation: R. v. Perreault, 2020 ONCA 580 Date: 2020-09-15 Docket: C66449

Before: Paciocco, Nordheimer and Thorburn JJ.A.

Between:

Her Majesty the Queen Appellant

and

Francois Perreault Respondent

Counsel: Andrew Cappell, for the appellant Howard L. Krongold, for the respondent

Heard: September 9, 2020 by video conference

On appeal from the order of Justice David Berg of the Ontario Court of Justice, dated December 21, 2018.

REASONS FOR DECISION

[1] The issue in this Crown appeal is narrow. If the trial dates of November 21, 2018 and November 22, 2018 were lost as the result of “exceptional circumstances”, the trial judge erred in finding that the net delay in Francois Perreault’s trial exceeded the presumptive 18-month Jordan deadline in the provincial court, requiring a stay of proceedings pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. If those dates were not lost as the result of “exceptional circumstances”, the trial judge was correct, and this appeal must be dismissed.

[2] We find no error in the trial judge’s characterization of this delay as “systemic” or institutional delay, or in his decision to allow Mr. Perreault’s s. 11(b) application. Those trial dates, the first dates to be set, were scheduled to occur less than a week before the presumptive Jordan deadline. There was no margin for error. Yet, Mr. Perreault’s case was set to be heard in an overbooked court. For example, twenty-five matters were set to be heard on November 21, 2018, in what turned out to be six provincial courtrooms open for trials in the notoriously busy Ottawa jurisdiction. Eighteen of those matters were expected to proceed. Things were not materially better on November 22, 2018. Mr. Perreault attended for his trial on both dates, but there was no judge available to hear his case on either day, and so it was adjourned outside of the presumptive 18-month Jordan deadline. In announcing, on November 22, 2018, that the case would not be reached yet again, the assigned trial Crown commented that Mr. Perreault’s case was “one of the matters that was stacked on top of other matters and there has been very little movement”.

[3] The Crown urges that, notwithstanding this course of events the trial judge erred in staying Mr. Perreault’s prosecution because “exceptional circumstances” caused the loss of the two trial dates, namely: (1) two judges were attending a compulsory education program, and (2) a third judge was unexpectedly ill.

[4] We do not agree that the assignment of judges to education programs qualifies as an exceptional circumstance. To qualify as an “exceptional circumstance” the Crown must show that the delay is “reasonably unforeseen or reasonably unavoidable”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 69. Judges are expected, indeed required, to attend judicial education programs. This is part of their judicial assignment and therefore it is reasonably foreseeable that when they are engaged in judicial education, they will not be available in courtrooms. If courts are left understaffed because judges are required to attend judicial education programs, this is a systemic or institutional problem, not an exceptional circumstance. It is also a problem that is avoidable if adequate judicial resources are made available to conduct trials within a reasonable time within a system that appropriately requires judicial education.

[5] Nor does it matter that the prosecuting Crown can do nothing about the staffing of courts. The Crown at large is responsible for preventing systemic delay. The fact that one out-of-town judge was brought in to sit two half days while two judges were away was insufficient to mitigate the shortfall.

[6] The Crown argues, in the alternative, that the unexpected illness of another assigned judge on November 21 and 22, 2018 is an exceptional circumstance that caused Mr. Perreault’s delay. The Crown’s theory is that even though several cases were not reached on November 21 and 22, 2018, Mr. Perreault’s was the priority case for the provincial Attorney General and would have been heard but for this judge’s unexpected illness.

[7] We agree that the illness of a judge is a quintessential example of an exceptional circumstance, however the Crown has not met its burden of showing that this judge’s illness explains the loss of Mr. Perreault’s trial dates. Two federal criminal matters scheduled for the same days were not reached, and, as the Crown concedes, matters prosecuted by the federal Crown are given priority over provincially prosecuted matters. We cannot find, in the circumstances, that Mr. Perreault’s matter would have been heard had a trial judge not been ill. That trial judge may well have dealt instead with one or both federal matters. What we do know is that Mr. Perreault’s matter would have been heard had sufficient judges been scheduled to preside on Mr. Perreault’s set trial dates.

[8] The Crown’s appeal is therefore dismissed.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“J.A. Thorburn J.A.”