Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 23, 2021 COURT FILE No.: Hamilton 18-11152

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NIKITA VORONTSOV

Before: Justice P. H. Marjoh Agro

Heard on: 9 March 2021 Reasons for Judgment released on: 23 March 2021

Counsel: Brett Moodie........................................................................................ counsel for the Crown Ernst Ashurov............................................................................................... for the defendant

AGRO, J.:

[1] On 18 November 2018, the applicant Vorontsov was charged with and arrested for a sexual assault contrary to section 271 of the Criminal Code. The information was sworn 29 November 2018.

[2] A one day trial was scheduled on 15 August 2019 when the applicant elected trial in this court. The trial was scheduled for 8 May 2020, 17 months and 10 days from the date the information was sworn, but nonetheless within bounds for trials in the Ontario Court of Justice: R v Jordan, 2016 SCC 27, at para.

[3] With the interruption of normal court business due to the onset of the COVID-19 pandemic, that trial was rescheduled for 25 March 2021, 27 months and 26 days from the date the information was sworn.

[4] The applicant now seeks a stay of proceedings against him on the basis that his s. 11(b) Charter rights have been infringed.

A. ANALYTICAL FRAMEWORK

[5] Jordan sets out the analytical framework for delay calculation and analysis as follows:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
• Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
• Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66)
• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
• Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [^1]

B. ANALYSIS

1. Total Delay

[6] As earlier noted, the total delay between the swearing of the information and the anticipated completion of this one day trials 27 months and 26 days, well beyond the presumptive limit of 18 months for trials in this court.

2. Net Delay: Subtract Defence Delay

[7] There are no express waivers of any time periods by the applicant and only periods of defence delay, as defined in Jordan, will be deducted.

[8] Jordan characterized defence delay as: …those situations where the accused’s acts either directly caused the delay … or the acts of the accused [that] are shown to be a deliberate and calculated tactic employed to delay the trial” [^2].

[9] The Crown has identified three periods of defence delay:

• 7 March 2019 - 4 April 2019

[10] A Crown pre-trial was held on 30 January 2019 with a subsequent appearance on 7 February of that year to receive instructions. By the appearance of 7 March 2019 a judicial pre-trial had yet to be scheduled and that was the case on 21 March as well. the matter was again adjourned on 4 April to hold that judicial pre-trial scheduled for 1 May 2019.

[11] The defence does not take issue with this period of 28 days defence caused delay.

• 30 May 2019 to 15 August 2019

[12] According to the defence affidavit of Irina Ashurov [^3], the applicant applied for Legal Aid on 13 December 2018 and the certificate was issued on 28 January 2019. The case notes disclose that a request for financial documents was sent to the applicant by regular mail on 29 April 2019. The applicant advised the affiant that that request was never received and that it wasn’t until 15 May 2019 that he learned from counsel that his certificate had been cancelled.

[13] Once informed of the need for further information, the applicant provided legal aid with bank statements.

[14] On 30 May 2019 the appellant appeared with the assistance of duty counsel & requested a four week adjournment as “they [Legal Aid] need a confirmation of his ongoing ineligibility. There hasn’t been a change so he needs to provide them with a verification of his current income” [^4].

[15] The Legal Aid case note of 29 May 2019 notes that “bank account statements are illegible” but it was not until 18 June 2019 that the difficulty was conveyed to the applicant.

[16] Thereafter the applicant repeatedly provided Legal Aid with documentation but it wasn’t satisfactory to Legal Aid. The issue was that the applicant was being paid a net amount by direct transfer and Legal aid wanted pay stubs outline gross income & deductions. Ultimately the issue was resolved on the first of August 2019 when Legal aid acknowledged a satisfactory letter from the applicant’s employer and reinstated the certificate.

[17] At the appearance of 8 August 2019 the defence advised the court of the reinstatement of legal aid and sought a 1 week adjournment for instructions before setting a trial date.

[18] On 15 August 2019 the accused was put to his election, seeking a trial in the Ontario Court of Justice. A trial date of 8 May 2020 was set for this one day trial, there being no earlier dates provided by the court.

[19] The defence quite properly argues that much of the delay in this period was due to Legal Aid processing, relying on R v Isaacs & Hussian, 2016 ONSC 6214, at par 77. The applicant provided what he believed to be the necessary documentation but legal aid kept requiring more information.

[20] I find the applicant to have responded in a timely fashion and as adequately as he was able. However, there was ample time between the reinstatement of the certificate on 1 August and the court appearance of 8 August 2019 to seek instruction particularly as the judicial pretrial was held 1 May, 15 days before counsel was informed of the certificate cancellation.

[21] I find the defence caused delay is limited to the 8 days between 8 and 15 August 2019.

• 8 March 2021 to 25 March 2021

[22] The trial date of 8 May 2020 was adjourned because of the COVID-19 public health crisis. While the Ontario Court of Justice in Hamilton continued operations from the lockdown of 16 March 2020, those operations were restricted to bail hearings, judicial pre-trials, guilty pleas and, in the discretion of the presiding jurist, trial continuations and continuations of preliminary hearings. For the most part, the wheels of justice were turning ever so slowly. With rare exception most matters were proceeding by video and or teleconference.

[23] Policy & Practice Directions mandated by the Chief Justice of this court, presumptively adjourned the applicant’s trial, and ultimately a new trial date was obtained for 6 July 2021 with any 11(b) hearing scheduled for 7 April. 2021. Those dates were obtained from the trial co-ordinator and put on the record at the appearance of 3 December 2020.

[24] On 11 February 2021 the Crown wrote to the Trial Coordinator seeking earlier dates. On 16 February dates of 8, 12, 24 & 25 March 2021 were offered. All were agreed to by the Crown but only 25 March was acceptable to the defence. The Trial Co-ordinator was unable to provide a date for the 11(b) hearing but directed the parties to appear before Leitch, J. on 22 February to confirm this date and any other issues to be addressed.

[25] The Crown argues that the pre-Jordan decision of R v Godin[^5] is no longer applicable, but concedes that not every single offer of a date for which the Crown and the court are available will count as defence delay without further analysis.

[27] A review of the transcript before Leitch, J. [^6] discloses that the defence reluctance to accept the earlier offered March dates was due to the necessity of needing time before the trial to argue this 11(b) motion before the assigned trial judge: MR. ASHUROV:…….The main issue was if we accept - if the March 25 date is accepted for trial what is the date for the 11(b) hearing? I asked [the trial coordinator] to schedule it. She said no, you have to do it before Justice Leitch. THE COURT: So Mr. Ashurov, this changes the completion date of the trial but it’s still your intention to bring an 11(b) application in spite of that? MR ASHUROV: That’s correct your Honour. This movement, according to my calculations, would result in 28 - just under 28 months delay. THE COURT: All right. So you're still at 28 months, even with March 25th? MR. ASHUROV: Yes, sir.

[28] After some further discussion among counsel, the court and the trial coordinator, the offered date of 9 March 2021 for the argument of this motion was agreed upon, with consents to abbreviate time for service of materials & reply thereto.

[29] I agree with the applicant’s submission that his change of counsel in November 2020 did not affect the pace of the proceeding in anyway. Mr. Ashurov attended for the previously scheduled mandatory COVID judicial pre-trial, forwarded the trial scheduling form to the trial coordinator the same day, attended the previously scheduled court appearance of 26 November 2020 and the earliest trial scheduling teleconference on 1 December 2020. Indeed the Crown makes no argument to that effect save for this discrete period in March 2021.

[30] It is clear that despite having had a trial scheduled for July 2021 brought forward by several months on only a few weeks’ notice, the applicant’s counsel was ready and able to proceed at the earliest date available to him, but for finding an date for argument of the motion, and was able to generate his motion materials on equally short notice.

[31] I find that there is no defence causing action or inaction as contemplated in Jordan and R v Cody[^7] considering the legitimate time requirements for trial preparation as well as time required to serve, file and argue an 11(b) application with all the requisite supporting transcripts and case notes from Legal Aid as were required in this case.

[32] There will be no deduction for this time period as sought by the Crown.

3. Calculation of Net Delay

[33] I find the net delay after deduction for defence caused delay to be 26 months and 20 days.

[34] The delay therefore is presumptively unreasonable.

4. Deduction for Discrete Event: COVID-19 Public Health Crisis

[36] The unprecedented worldwide COVID-19 pandemic is undoubtedly a discrete event as provided for, but not likely contemplated, by the Supreme Court of Canada in Jordan.

[37] The Crown, relying on R v Simmons[^8], and other decisions made thereafter by several trial courts, urges me to ascribe all of the time, from the adjournment of the May 2020 trial to the new trial date of 25 March 2021, as delay attributable to this discrete event.

[38] If the Crown submission is acceded to by this court, the discrete event would account for 10 months 18 days, for a total delay of 16 months and two days, saving this trial from the remedy of stay.

[39] The applicant submits that the proper allocation for “COVID delay” is from the date of the original trial in May of 2020 to the “reopening” of courts in July 2020 resulting in a total delay of 25 months and some days, or alternatively 31 August 2020 when out of custody trials were being reset, for a total delay of 23 months, 20 days. Either of those calculations would invite a stay.

The Simmons analysis

[40] In Simmons, at paras. 65 & 65, Nakatsuru, J. acknowledged that that one needs to be cautious about what period of the discrete event delay should be deducted, citing Moldaver, J. in Jordan:

[64] In analyzing this issue, I must be careful about exactly what period of delay should be deducted from the net delay. In Jordan, Moldaver J. acknowledged that there are limits to what delay can be justified by a discrete event. He said at para. 75: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the 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 (see R. v. Vassell, 2016 SCC 26). 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).

[65] This obligation is consistent with the more general requirement that exceptional circumstances exist only where the Crown cannot reasonably remedy the delay from the circumstances when they arise.

[41] Thereafter Nakatsuru, J. discusses five reasons why he held that the entire time, from the date of Simmons’ first trial to the end of the newly scheduled trial date should qualify as a discrete event deduction [^9].

[42] In summary those reasons are:

• other trial court decisions have deducted the entire time impacted by COVID-19
• the pandemic had system wide impacts upon how the criminal justice system does things and those who do them
• the impact of an exceptional circumstance does not end on any specified date given the reality of trial rescheduling and that reality of trial scheduling must be taken into account when calculating the appropriate time period and “in assessing what the Crown and the Court can reasonably do in mitigating the delay” [ italics mine]
• the discrete event of the pandemic continues into the future [^10]
• courts should be reluctant to cast blame or be overly critical of the justice system or its participants while meeting the challenges posed by the ongoing pandemic.

[43] Simmons, and other authorities cited by both counsel, is a trial level decision and not binding upon me. It reflects considerations specific to the Superior Court of Justice, and in particular the scheduling of jury trials.

[44] To apply the Simmons reasoning without reference to, or further analysis of, the circumstances prevailing in this jurisdiction since the initial province wide lockdown of 16 March 2021 would fail to pay respect to the contextual analysis mandated by Jordan.

Calculation of COVD delay in this case

[45] With the imposition of the province wide lockdown and its effect on the administration of justice, the Ontario Court of Justice developed its own Policies and Practice Directions in consultation with a broad spectrum of stakeholders within and outside of the Ministry of the Attorney General.

[46] As set out in paragraph 22, supra, the court, its administrative staff and judicial officers, all part of an essential service, continued operations, albeit on a restricted basis, to ensure the health and safety of those participants and members of the public.

[47] For Phase 1 courthouses, of which Hamilton was one, trials and preliminary hearings, scheduled to begin after 6 July 2020 were to proceed on their scheduled dates.

[48] Out of custody trials scheduled between 16 March 20 & 6 July 20, were to follow a regime of presumptive adjournments, with the earliest possible date for arranging a new trial date being 31 August 2020, and in any case, only after a mandatory “COVID” judicial pre-trial. The purpose of the COVD pre-trial being to discuss amongst other things, possible resolution, admissions and any other steps that might be taken to promote the proper use of hearing time.

[49] In the Applicant’s case that pre-trial took place on 18 November 2020. That date was provided to the defence by the trial coordinator and confirmed on the record on 1 October 2020.

[50] The new trial date of 6 July 2021 was obtained on 1 December 2020 during a teleconference with the Crown and trial co-ordinator, along with a date for this 11(b) hearing. It is noteworthy that every trial verification form that must be filed on the trial set date is signed by both the Crown and the defence and must contain the applicable Jordan date. This would have been the case for both the original trial in March of 2020 as well as the reassigned trial date.

[51] To further assist with the scheduling of trials, a trial readiness court was convened on a weekly basis commencing 29 June 2020. The purpose of these courts being a triage of cases set for the following week so that additional matters could possibly be brought forward to the vacated dates.

[52] The applicant is correct in his submission that by the time his first trial date had to be cancelled due to COVID-19, the delay had already exceeded 17 months and by the time the courts opened for other trials in July 2020, the delay already exceeded the presumptive ceiling. This fact could not, or should not, have escaped the Crown.

[53] Given the practice directions by the Court and the presumptive adjournment schedule, there was little the applicant could do to expedite trial at least until the COVID pre-trial was held, and his counsel did so within 13 days of that pre-trial by having a teleconference with the Crown and trial coordinator on 1 December 2020.

[55] In Jordan, the court considered the obligation of the Crown in exceptional circumstances at para. 70:

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. and at para. 75:

[75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate [page666] 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 (see R. v. Vassell, 2016 SCC 26). 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).

[56] In view of that direction from the Supreme Court, it was incumbent on the Crown, knowing its inventory of trials, to lay the ground for the mitigation of delay once the original trial date was first presumptively adjourned.

[57] While I acknowledge that a new trial date could not be set before 31 August 2020, I have no evidence before me that this matter had been red flagged for priority by the Crown as being in Jordan territory or that the Crown sought direction from a case management judge or raised the issue with the trial coordinator before that date.

[58] Indeed the Crown did not so until 11 February 2021, over 2 months after the July 2021 date was obtained.

[58] This is a jurisdiction of 7 full time jurists. By September 2020 Hamilton was operating with a full complement of judges available with 5 courtrooms for either in person or remote trials and two plea courts on any given day. We have also had the benefit of assistance from a number per diem judges to ensure all of our available courtrooms are in operation at all times.

[59] Certainly it would not be expected that all matters adjourned after 16 March be given new trial dates on 31 August 2020, but giving this trial some priority might have considerably shortened the overall delay. This is not a complex matter. It is a one day trial.

[60] As stated in Jordan, the Crown need not satisfy me that any steps taken were ultimately successful, “ rather, just that it took reasonable steps in an attempt to avoid the delay” [^11].

[61] On my review of the circumstances in this jurisdiction and of this case, I find that appropriate deduction for the exceptional circumstance of COVID-19 is limited to the period from the date of the original trial, 8 May 2020 to 18 November 2020 when the mandatory COVID judicial pre-trial as set by the trial coordinator was completed. That results in a further deduction of 6 months and 11 days.

[62] The total net delay, at 20 months and 9 days, is then presumptively unreasonable.

C. CONCLUSION

[70] The proceedings against the applicant are stayed.

Released: 23 March 2021. Signed: P. H. Marjoh Agro, J.

Footnotes

[^1]: R v Coulter, 2016 ONCA 704, paras 34-41. [^2]: Jordan, supra at paras. 60-66. [^3]: Exhibit 1, sworn 5 March 2021, with Legal Aid Ontario Financial Cases Notes attached. [^4]: transcript R v Vorontsov, 30 May 2019, p. 1, l. 20-22. [^5]: 2009 SCC 26, at para 23. [^6]: transcript, 22 February 2021, p 2, l. 11-14 & p. 3., l. 1-10. [^7]: 2017 SCC 31, para 29. [^8]: [2020] O.J. No. 5183, 2020 ONSC 7209. [^9]: Simmons, supra, paras. 69-74. [^10]: Simmons was decided in November 2020. [^11]: Jordan, para 70, supra.