Court File and Parties

Court of Appeal for Ontario Date: 2024-08-01 Docket: COA-23-CR-0022

Gillese, Thorburn and Gomery JJ.A.

Between

His Majesty the King Appellant

and

Angelo Kirkopoulos Respondent

Counsel: David Quayat, for the appellant Michelle Biddulph, for the respondent

Heard: February 27, 2024

On appeal from the stay entered by Justice Andrew J. Goodman of the Superior Court of Justice on November 18, 2022, with reasons reported at 2022 ONSC 6440.

Overview

Thorburn J.A.

[1] The Crown appeals the application judge’s decision to stay drug trafficking charges against the respondent, Angelo Kirkopoulos, on the grounds of unreasonable delay.

[2] A person charged with an offence has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated, the remedy is a stay of proceedings. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court set out the process for assessing delay to determine whether the right to be tried within a reasonable time was violated.

[3] The application judge noted that the total delay from the time the charges were laid to the anticipated end of the scheduled trial was 56.5 months. While acknowledging that certain periods were attributable to defence delay and the exceptional circumstances of the COVID-19 pandemic, the application judge held that the period from May 20, 2022 to January 20, 2023 was institutional delay and that the remaining delay was 35.5 months, which exceeded the acceptable limits in Jordan, and contravened s. 11(b) of the Charter. As such, he stayed the charges.

[4] The appellant Crown claims the application judge erred by attributing the 8-month period between May 2022 and January 2023 to institutional delay instead of to an exceptional circumstance arising from the COVID-19 pandemic.

[5] The Crown submits that the exceptional circumstance of COVID-19 did not simply end when courts started rescheduling trials. The Crown submits that the knock-on effects of the pandemic (i.e., the backlogs) are real and the period between May 20, 2022 and January 20, 2023 should therefore also have been treated as an exceptional circumstance, bringing the delay within the acceptable limits prescribed in Jordan.

[6] The respondent claims the application judge made no error. He accounted for the exceptional circumstances of the pandemic, attributing 14 months of delay to the pandemic, including the period from approximately June 2021 to December 2021 (when jury trials could proceed but no trial time was available), and February 2022 to May 20, 2022 (the time after it became possible to hold the jury trial which accounted for the backlog accumulated as a result of the suspension of jury trials). The time from May 2022 to January 2023 by contrast was correctly characterized as institutional delay.

[7] For the reasons that follow, I would dismiss the appeal.

The Evidence of Delay

[8] The background for the analysis of delay in this case is as follows.

[9] On May 8, 2018, the respondent was charged with various drug trafficking offences. These are serious drug charges: the Crown alleges that the respondent was a minority shareholder in a pharmacy and personally ordered controlled substances from a pharmaceutical supplier and directed others to do so as well. The Crown further alleges that the respondent trafficked those substances.

[10] On July 24, 2019, a judicial pre-trial was held and the parties estimated that four days would be required for pre-trial motions, and three weeks for the trial by jury. Pre-trial motions were to begin on August 31, 2020, with a trial scheduled for September 21, 2020.

[11] On June 23, 2020, the respondent’s counsel indicated that the respondent had discharged him and was in the process of retaining new counsel. The respondent’s new counsel contacted the Crown on June 29, 2020. A judicial pre-trial was scheduled for July 23, 2020.

[12] On August 21, 2020, the respondent brought an adjournment application. The pre-trial motions were adjourned.

[13] On October 13, 2020, the pre-trial motions ultimately began and on October 15, 2020, the defence application to exclude certain evidence pursuant to s. 8 of the Charter was granted.

[14] On November 25, 2020, a further judicial pre-trial was held to estimate the time required for additional pre-trial motions. The parties ultimately agreed to schedule the additional motions on March 29, 30, and 31, 2021.

[15] On April 12, 2021, defence counsel wrote to the trial coordinator seeking to schedule a two-week jury trial. The first available date was August 23, 2021, but neither Crown nor defence counsel were available on that date. The next date was December 6, 2021, but defence counsel was not available. In the end, the parties agreed to a trial start date of January 17, 2022.

[16] On December 17, 2021, jury trials were suspended until February 7, 2022 due to the pandemic, and this was later extended to February 28, 2022. The parties attended by Zoom on January 17, 2022, and the trial was adjourned as jury trials were suspended.

[17] On March 8, 2022, the Crown wrote to the trial coordinator seeking new trial dates. The trial coordinator advised that she did not “have any available dates for any Judge until 2023.” A Crown motion was scheduled for November 25, 2022, and the trial was scheduled to commence on May 1, 2023.

[18] On May 25, 2022, the trial coordinator wrote to counsel to inform them that the judge now had a scheduling conflict on the trial date, and asked the parties if they would be available to commence the trial on January 9, 2023. Both parties agreed.

[19] The respondent brought a s. 11(b) application to stay the proceedings for delay, which was heard on October 5, 2022.

The Legal Principles and the Application Judge’s Reasons

[20] In order to determine whether the s. 11(b) right has been infringed, the total time from the laying of charges to the actual or anticipated end of trial must first be calculated. The reasons for delay are then considered.

[21] Delay attributable to the defence is subtracted from the total delay, which results in the net delay: Jordan, at para. 66; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35. The net delay is then compared to the presumptive ceiling: Coulter, at para. 36.

[22] A net delay that exceeds the ceiling is presumptively unreasonable: Jordan, at para. 68; Coulter, at para. 37. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68; Coulter, at para. 37. Institutional delay, by contrast, results from the lack of institutional resources such as the inability of courts to hear proceedings. Such delays are not subtracted from the overall delay: Jordan, at para. 81.

(1) Total Delay

[23] The application judge held that the total delay between the date charges were laid on May 8, 2018, and the anticipated end of trial, which was expected to be January 20, 2023, was 56.5 months.

(2) Defence Delay

[24] The application judge then considered defence delay and subtracted those portions from the total delay: see Coulter, at para. 35. There are two types of defence delay: delay waived by the defence and delay caused solely or directly by the conduct of the defence: Jordan, at para. 66.

[25] The application judge attributed two periods to defence delay: the period from June 23, 2020 (the day that the Crown was advised of the respondent’s change in lawyer) to October 13, 2020 (the first day of pre-trial motions), and the period from December 18, 2020 to March 29, 2021 (seemingly related to scheduling additional pre-trial motions).

[26] He subtracted this cumulative 7-month defence delay from the total delay, resulting in a net delay of 49.5 months. This attribution of defence delay is not in issue.

(3) Exceptional Circumstances

[27] The application judge then considered whether there was any delay attributable to exceptional circumstances arising because of the COVID-19 pandemic.

[28] The net delay of 49.5 months (after subtracting defence delay) exceeds 30 months and is therefore presumptively unreasonable. The onus was therefore on the Crown to demonstrate that the delay was nevertheless reasonable, taking into account exceptional circumstances: Jordan, at para. 68.

[29] “Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69.

[30] Exceptional circumstances include discrete events and particularly complex cases: Jordan, at para. 71. The COVID-19 pandemic, which affected Ontario courts for extended periods starting on March 17, 2020, has been held to be a compelling example of an exceptional circumstance: see e.g., R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at paras. 4, 19, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon).

[31] If the Jordan ceiling is breached, however, the Crown must show that it took reasonable steps to avoid and address potential delay. It need not prove that the steps taken were successful or that it “exhaust[ed] every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 54; Jordan, at para. 70.

[32] Delay caused by exceptional circumstances is subtracted from the total delay minus defence delay to determine the remaining delay: see Jordan, at para. 75; Coulter, at paras. 34-38.

[33] The application judge attributed 14 months to exceptional circumstances due to the COVID-19 pandemic. He held that in this case:

What causes delay in this matter is two instances: firstly, the January 17, 2022 trial being adjourned due to COVID-19 measures which prevented juries from sitting, and secondly, the difficulties in rescheduling the trial caused by lack of dates being available in the Superior Court of Justice in Hamilton.

Due to [the] Omicron variant, however, jury trials were again suspended as of January 19, 2022, until February 28, 2022. Once jury trials were ready to resume on February 28, 2022, there were some delays with respect to rescheduling the trial. On March 18, 2022, the transcripts reflect that the Crown and the defence were ready to reschedule dates but that the court was not able to offer dates until May 20, 2022.

[34] He held that the period from January 19, 2021 to May 20, 2022 amounted to exceptional circumstances due to the pandemic, but noted that he had already deducted the period of January 19, 2021 to March 29, 2021 as defence delay. He noted that when jury trials resumed on February 28, 2022, there were some delays with respect to rescheduling the trial which meant that new trial dates were not obtained until May 20, 2022.

[35] After subtracting the 14-month deduction for the COVID-19 pandemic, this resulted in a remaining delay of 35.5 months.

(4) Institutional Delay

[36] The application judge addressed the remaining 8-month period of delay in dispute (between May 2022 and January 2023) and the difficulty of calculating delay caused by the pandemic. He noted that:

In R. v. Robinson, 2021 ONSC 2445 at para. 102, Akhtar J. recognized the difficulty in calculating the delay caused by the COVID-19 pandemic in addressing s. 11(b) of the Charter:

It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months is a more specific time period, it cannot be disputed that there was a "knock on" effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.

I agree with Ahktar J.’s overall assessment. The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances.

[37] The application judge recognized that there was a backlog in scheduling and rescheduling cases related to the COVID-19 pandemic but held that the delay from May 2022 to January 2023 was institutional delay:

I agree with the applicant that having no available dates left following the re-opening of courts in 2022, by March 2022 demonstrates institutional delay and that there must have been a serious backlog in the courts.

As such, I have only deducted specific segments of time due to delay attributable to COVID-19, as follows: The eligible period is from January 19, 2021 to May 20, 2022, due to the subsequent shutdown of the courts according to the provincial directives. [The application judge noted in a footnote that he had already deducted the period from January 19, 2021 to March 29, 2021 as defence-caused delay.] It is clear that the parties were ready to proceed but the court could not set dates due to the pandemic. Eventually, the court offered January 2023 for trial. This latter period falls as institutional delay with a backlog of criminal cases. [Emphasis added.]

[38] He concluded that there was a remaining delay of 35.5 months, which was 5.5 months above the presumptive ceiling set in Jordan.

[39] As such, the application judge granted the application and issued a stay of proceedings.

Analysis of the Application Judge’s Reasons

[40] The appellant Crown claims the application judge erred in attributing the 8-month period from May 20, 2022 to January 20, 2023 to institutional delay. The Crown claims this too, like the 14-month period attributed to exceptional circumstances due to the COVID-19 pandemic, should have been considered exceptional circumstances.

[41] For the reasons that follow, I disagree.

[42] Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewed on a standard of correctness. However, deference is owed to a trial judge’s underlying findings of fact: R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 30; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.

[43] In R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, at para. 21, this court specifically noted that the application judge had “knowledge of the culture at the court location where she sits” and held that there was no error in the application judge’s conclusion that the pandemic had no impact on the scheduling of that particular case. Similarly, in R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, at para. 54, leave to appeal refused, [2024] S.C.C.A. No. 41, this court held that “[t]he trial judge was in the best position to evaluate the reasonableness of the steps that the Crown took to ameliorate delay in this case.” In restoring the trial judge’s decision this court held that the summary conviction appeal judge erred by failing to defer to the factual findings of the trial judge who “correctly stepped back and took a bird’s-eye view of the surrounding circumstances of this case” and “properly employed his expertise and local knowledge of his jurisdiction”: Coates, at para. 72.

[44] In Agpoon, at paras. 33 and 34, and in Coates, at para. 59, this court noted that where access to the courts has been limited by disruptions to the operation of criminal courts in Ontario caused by the pandemic, the attributable delays will generally be treated as discrete exceptional circumstances.

[45] However, there is no rule that all periods of delay during the COVID-19 pandemic, including those resulting from scheduling backlogs, should be attributed to exceptional circumstances. Even in the case of pandemic-related delay, the Crown must “make reasonable efforts to mitigate the delay resulting from COVID-19" and delay that could reasonably have been mitigated “may not be subtracted": Coates, at para. 42; Jordan, at para. 75.

[46] This is so because as stated in Jordan, at para. 75:

[T]he Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Citation omitted.]

[47] In Agpoon, this court determined that a trial judge erred by failing to attribute 14 months of delay to exceptional circumstances where the preliminary hearing was cancelled due to the COVID-19 pandemic. The 14-month period represented the period between March 17, 2020, the date all Ontario courts first closed, and May 19, 2021, the date on which the direct indictment was preferred. The court did not hold however that all periods of delay during the COVID-19 pandemic be necessarily attributed to exceptional circumstances.

[48] In this case, the application judge acknowledged that the pandemic caused backlog in rescheduling cases, and that backlogs can be deducted as exceptional circumstances. However, he stated: “I am not persuaded that the entire period – as alleged by the Crown, approximately 28 months of delay, which leaves a net delay of 26 months (sic) as claimed, is to be attributable to the COVID-19 pandemic and or comingled with defence caused delay.”

[49] He held that he was not satisfied that the Crown took reasonable steps to mitigate the delay. Moreover, there was insufficient evidence to justify any greater deductions.

[50] The parties knew as of December 17, 2021 that the trial would not proceed in January 2022, as the court issued a notice to the profession that the Superior Court “will not commence any new jury selection in any court location until February 7, 2022.” [1] The parties appeared before the court on January 17, 2022 (i.e., what was supposed to be the first day of trial) and the matter was adjourned to March 18, 2022, “to set date for trial”.

[51] The Crown took no steps to obtain new trial dates until March 8, 2022 – over two months after learning that the second scheduled trial date would have to be adjourned, and 46 months after the charges were laid.

[52] Further, the application judge did acknowledge the effect of the COVID-19 pandemic and deducted the 14-month period from March 29, 2021 to May 20, 2022 as an exceptional circumstance. He recognized that the suspension of jury trials and the backlog in scheduling and rescheduling cases were relevant considerations and factored them into his consideration. His attribution balanced the assessment of the impact of COVID-19 with the respondent’s right to be tried within a reasonable time.

[53] In any event, there is no evidence as to the nature of the backlog in the trial coordinator’s office, how it compared to the pre-COVID-19 backlog, or what steps, if any, were being taken to mitigate the effect of the backlog. Thus, the application judge was not obliged to find that the entire scheduling backlog was caused by COVID-19, or that the entire period of delay in rescheduling the trial was attributable to exceptional circumstances.

Conclusion

[54] For these reasons, I would dismiss the appeal.

Released: August 1, 2024 “E.E.G.” “Thorburn J.A.” “I agree. E.E. Gillese J.A.” “I agree. S. Gomery J.A”

[1] The suspension was later extended to February 28, 2022.