Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 06 03 COURT FILE No.: Brampton, 18-13559

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHARABIL MOHAMED

Before: Justice Paul T. O’Marra

Heard on: May 31, 2021

Reasons for Judgment on a Delay Application released on: June 3, 2021

Counsel: Ryan Mullins........................................................................................ counsel for the Crown Ravi Sahota............................................................. counsel for the defendant MOHAMED

O’MARRA J.:

[1] These are my amplified written reasons for judgment in an application for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms as a result of an alleged infringement of the applicant's right to a speedy trial pursuant to s. 11(b) of the Charter.

[2] The Applicant was investigated, arrested and charged with Impaired Operation by Drug on November 6, 2018. The Information was sworn on November 9, 2018. The trial in this matter is set to commence before me in the Ontario Court of Justice on June 7, 2021, and anticipated to conclude on June 9, 2021, which is 944 days or 31 months and 1 day from the date of the Information. On May 31, 2021, the application was argued before me and I reserved until today, June 3, 2021 in order to deliver my oral reasons.

The History of the Case:

The allegations:

[3] On November 6, 2018 at 5:21 p.m., the applicant was investigated by Peel Police after a motor collision was reported at the intersection of Gore Road and Cotrell Boulevard in Brampton.

[4] It was alleged that the applicant rear ended a stopped motor vehicle.

[5] Witnesses at the scene observed the applicant exit his motor vehicle and he appeared to be swaying side to side and detected a strong odour of alcohol.

[6] At 5:41p.m., a constable attended the scene and spoke to the applicant, made observations and arrested the applicant for impaired operation by drug. The constable made a demand that the applicant submits to an examination of by a Drug Recognition Expert (DRE).

[7] The applicant was transported to 21 Division to conduct an examination by a DRE.

[8] At 6:59 p.m., the applicant was examined by a DRE.

[9] After he conducted his examination, the DRE opined that the applicant was impaired by a central nervous system depressant and subsequently made a demand for the applicant's urine. The applicant complied and was released.

The Chronology:

[10] The history of the proceedings was accurately set out in the applicant's factum and the Crown's response. I do not propose to recite the pace of the proceedings in its entirety or cite specific transcripts; however, the history is based on all the transcripts, Crown disclosure, an affidavit from Kristyn McFayden, an affidavit from Greg Hendry, e-mails, and other litigation documents and records.

• November 6, 2018 arrested, charged and released with a first appearance on November 22, 2018.
• November 9, 2018, Information was sworn.
• November 22, 2018, first appearance, retained counsel's agent attended and filed a designation, initial disclosure was provided, matter was adjourned to December 13, 2018.
• December 13, 2018, agent attended, matter was adjourned to January 3, 2019 for a Crown Pre-Trial (CPT) to be scheduled.
• January 3, 2019, agent attended, matter was adjourned to January 24, 2019 for a CPT to be scheduled.
• January 7, 2019, counsel wrote to the Crown Attorney's Office, Brampton, requested further disclosure including all audio and video produced during the DRE testing process.
• January 22, 2019, counsel conducted a CPT with Crown counsel, Greg Hendry.
• January 24, 2019, agent attended, matter was adjourned to February 14, 2019, for the Crown Attorney's office to provide the DRE report and video recordings.
• February 14, 2019, agent attended, matter was adjourned to February 28, 2019, the agent was advised that the DRE report and video were available in the Crown Attorney's Office. On the same day, the disclosure was picked up by another counsel from the same law firm.
• February 28, 2019, agent attended, matter was adjourned to March 14, 2019, for counsel to review the DRE material and obtain the applicant's instructions.
• March 14, 2019, agent attended, matter was adjourned to April 4, 2019, for counsel to receive medical documentation from the applicant and to schedule a follow up CPT. Crown asked for a waiver of 11(b) right. No waiver was provided, just a reiteration of the reason for the adjournment and to underscore that the adjournment was at counsel's request.
• March 21, 2019, counsel forwarded to the Crown Attorney's Office the applicant's medical documentation in advance of the CPT scheduled for April 1, 2019.
• April 1, 2019, the CPT did not proceed due to the unavailability of the pre-trial crown.
• April 4, 2019, agent attended, matter was adjourned to April 25, 2019, to re-schedule another CPT and to obtain further instructions from the applicant. (presumably after the future CPT was conducted)
• April 8, 2019, the second CPT was conducted.
• April 25, 2019, agent attended, the first available Judicial Pre-Trial (JPT) was scheduled for June 17, 2019, at 12:10 p.m. The transcript reflected that the matter was adjourned to "June 19, 2019" in 103 at 11:00 a.m. "on the same day." However, the JPT was held on June 17 according to the trial coordinator's form and an e-mail to the agent from counsel's office.
• June 17, 2019, counsel attended and conducted a JPT. Three (3) days were estimated for trial.
• June 19, 2019, agent attended. Trial dates were set for June 24, 25 and 26, 2020. The trial coordinator's verification of trial date form indicated that the first available dates for both the court and the Crown for a three (3) day trial was June 22, 23 and 24, 2020. Counsel was not available.
• March 16 to July 6, 2020, Ontario Court of Justice trials and out-of-custody appearances were suspended due to the Covid-19 pandemic.
• May 4, 2020, counsel received the toxicology report from the Crown Attorney's office.
• June 24, 2020, the trial dates were vacated, matter was adjourned to September 2, 2020, pursuant the Chief Justice's directive.
• August 12, 2020, the Ontario Court of Justice published a Notice to the Profession and Public regarding the scheduling of criminal trials and preliminary hearings. The Notice prioritized the re-scheduling and scheduling of in-custody trials for the next six (6) weeks prior to re-scheduling any out-of-custody trials adjourned due to the Covid-19 pandemic.
• September 2, 2020, as a result of the Chief Justice's directive the court adjourned the applicant's matter to October 7, 2020.
• September 14, 2020, the Ontario Court of Justice issued a directive to begin re-scheduling of out-of-custody trials and preliminary hearings that were scheduled to begin between June 8, 2020 and July 3, 2020 but were adjourned due to the Covid-19 pandemic.
• September 17, 2020, counsel's firm e-mailed the Trial Coordinator's Office to reschedule the applicant's trial and a mandatory second JPT.
• October 6, 2020, counsel's firm scheduled a second mandatory JPT for November 6, 2020.
• October 7, 2020, agent called in, and the matter was adjourned to November 18, 2020.
• October 26, 2020, current counsel assumed carriage of the applicant's file and due to a prior commitment could not attend the JPT scheduled for November 6, 2020.
• October 29, 2020, counsel e-mailed the Trial Coordinator's Office a request to request the second JPT.
• November 9, 2020, the Trial Coordinator's Office scheduled the applicant's second JPT on the first available date which was December 15, 2020.
• November 18, 2020, agent attended, the matter was adjourned to December 23, 2020, to conduct the second JPT.
• December 15, 2020, counsel conducted the mandatory JPT and the same three (3) day estimate was approved.
• December 16, 2020, counsel's firm submitted the trial scheduling form to the Trial Coordinator's Office.
• December 23, 2020, January 21, 2021 and February 4, 2021, agent attended each court appearance to advise that counsel was waiting to schedule the new trial date.
• February 12, 2021, the Trial Coordinator's Office advised counsel's office that the trial scheduling conference was scheduled for February 22, 2021.
• February 22, 2021 the scheduling conference was held, and the matter was re-scheduled for trial for June 7, 8, and 9, 2021. This was the first date when the court and the Crown were available.
• March 4, 2021, agent attended and new the trial dates were formally set on the record for June 7, 8, and 9, 2021.

The Jordan Analytical Framework:

Now turning to the Jordan analytical framework:

[11] In determining whether a person's section 11(b) right has been infringed: First, the court must assess the total delay. This is a straightforward approach that begins with the laying of an information and ends with the actual or anticipated conclusion of the trial. (R. v. Jordan, 2016 SCC 27, para. 47)

[12] Second, defence delay must be deducted from that total, which is the Net Delay. (Jordan, para. 66)

[13] Third, if that delay is beyond the 18-month ceiling for Ontario Court matters, it is presumptively unreasonable. (Jordan, para. 66) The Crown bears the onus of justifying that delay. (Jordan, para. 47) If, the Crown cannot rebut the presumption a stay follows. (Jordan, para. 47) Justification for delay is restricted to "exceptional circumstances."(Jordan, para. 47)

[14] Exceptional circumstances lie outside the control of the Crown in that they are (i) reasonably unforeseen or reasonably unavoidable, and (ii) cannot be reasonably remedied once they arise. (Jordan, para. 68)

[15] Exceptional circumstances are recognized as discrete events or case complexity. In the case of the former, the delay attributable thereto is deducted from the total. In the case of the latter, if found, delay beyond the ceiling may be deemed reasonable. (Jordan, para. 71)

[16] 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).

[17] 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).

[18] 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).

[19] The total delay in this matter is 31 months and 1 day.

[20] It is agreed in this case that the matter is not complex.

Issues:

[21] Counsel have framed two issues in order for me to decide the application:

• How much time should be deducted from the total delay as an exceptional circumstance flowing from the COVID-19 pandemic?
• Was there pre-Covid-19 pandemic defence delays in this case?

Issue #1. – How much time should be deducted from the total delay as an exceptional circumstance flowing from the Covid-19?

[22] For the purposes of this discussion I have not reached any conclusion at this stage of the analysis that there is no defence delay and that the presumptive ceiling has been breached and that the Crown must rebut the presumption and establish the presence of exceptional circumstances.

[23] But for arguments sake I will assume that the there was defence delay, the net delay was below the presumptive ceiling and the case does not fall withing the sub ceiling exception. In other words, I wish to address this issue as if the application turned on whether the Covid-19 Pandemic constitutes in whole or in part is an exceptional circumstance.

[24] It is not controversial that the Covid-19 pandemic is an exceptional circumstance as described by the SCC in Jordan. The pandemic was without question a reasonably unforeseen and unavoidable discrete event. A court must consider whether there are any periods of delay resulting from the Covid-19 pandemic that should be subtracted. (See: R. v. Drummond, 2020 ONSC 5495, [2020] OJ No. 3908, at para. 76, and R. v. Khattra, 2020 ONSC 7894, at paras. 75-78) Counsel submitted the period that trials were suspended should be subtracted from the delay; however, counsel also urged me to not treat the pandemic as a blanket waiver of the applicant's section 11(b) rights.

[25] I have detailed in the chronology the stages at which the Ontario Court of Justice began to re-open. In custody preliminary hearings and trials that had been adjourned were prioritized in setting new trial dates. Subsequent to those matters, out-of-custody trials that were adjourned were to be rescheduled in the order that they were adjourned. Essentially, counsel argues that it took 5 months and 24 days for the OCJ to recover from the shut down of the courts and to subtract anymore as an exceptional circumstance would be inappropriate.

[26] In support of his argument, and I agree with counsel on this point, that is incumbent on all parties to including the Crown and the Court as an institution to bear the responsibility in responding to the pandemic's impact on trial scheduling by ensuring that priority was given to rescheduling of trials that were over the 18 month presumptive ceiling.

[27] However, beyond the shut down period, courts have been taking a case by case approach to the question of how or if the pandemic continued to delay the progress of the case in rescheduling new trial dates.

[28] The backdrop of local conditions and the reality of the courthouse must be kept in mind when calculating the appropriate time period in assessing what the Crown and the court must reasonably do in mitigating delay. (R. v. Simmons, 2020 ONSC 7209, paras. 67-74)

[29] The impact of Covid-19 on the Region of Peel was expressively stated by Woollcombe J. in Khattra, at para 62,

It is reasonable to take judicial notice that in Brampton, one of the busiest jurisdictions in the country, the unprecedented closure of the courts and suspension of jury selection for months over the course of 2020 and into 2021, has and will have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209, at para 63:

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

[30] Her Honour in referring to other cases went on to say at paras. 82 and 83 of her judgment,

82 I agree with my colleagues that, in principle, in most cases that were adjourned because the pandemic precluded the commencement of jury trials, the entire period of the delay until the new trial is fairly characterized as attributable to the pandemic. This makes sense. It reflects the reality that the administration of justice could not instantly re-start all those many cases that had been delayed on the very first day jury trials resumed. The justice system must acknowledge and take account of the fact that it required, and will in the future require a reasonable time for trials to be re-scheduled, bearing in mind the significant challenges that this poses for both the courts and for counsel.

83 One need only consider the huge number of cases that were adjourned, by the orders of the Chief Justice, from March to June to July and then to September 2020, to appreciate the weight put onto the administration of justice by the pandemic. It is unfathomable to think that they could all have proceeded to trial in September. This is particularly so when, in Brampton, as the RSJ's Notice made clear, there were only a limited number of courtrooms that were properly configured, fitted and available to hear cases that were proceeding in the Superior Court.

[31] R. v. Gutierrez, 2020 ONSC 6810 is a further case that dealt with the same issue regarding the amount of delay that should be attributable to rescheduled cases. In this case, a trial had been set for July 4, 2020. As a result of the pandemic and shutdown, the trial date was vacated in June and the trial was then re-scheduled for May 17-June 4, 2021. Byrne J. found that the delay caused by the pandemic was 10 months and 12 days from the trial scheduled in July 2020 to the new trial scheduled on May 17, 2021. She did not deduct as a discrete event the delay from the suspension of court proceedings on March 17 to July 4, 2020.

[32] Therefore, I find that on the facts of this case and recent jurisprudence on this very issue, the delay from the original trial date of June 26, 2020 to the end of new trial date June 9, 2021 was as a result of pandemic re-scheduling.

[33] The delay from June 26, 2020 to June 9, 2021 is 349 days or 11 months 14 days, constitutes an exceptional circumstance and shall be deducted from the total delay.

Issue #2: Was there pre-Covid-19 pandemic defence delays in this case?

[34] Now, I turn to the issue of Defence caused delay as raised by the Crown in its responding material.

[35] The Crown argues that the defence is responsible for three discrete time periods of pre-Covid 19 pandemic delay and they are as follows:

• January 3, 2019 to January 24, 2019 = 22 days
• February 28, 2019 to March 14, 2019 = 14 days
• March 14, 2019 to April 4, 2019 = 22 days

[36] It was clear from the transcript that on December 13, 2018 after receiving initial disclosure the agent indicated to the court that the matter should go over to January 3, 2019 and in the interim a CPT would be scheduled. The CPT was never scheduled. On January 3, 2019 the same agent requested that the matter go over again to January 24, 2019, in order to schedule a CPT. The record was silent as to the failure to set a CPT before January 3 and what, if any efforts were made by counsel's office to schedule the CPT over the holiday break. I view this timeframe through a very different lens, than the Crown. The adjournments on December 13, 2018, January 3, 2019 and January 24, 2019, were still necessary as the Crown had not provided the critical disclosure of the DRE evidence. Even if a CPT had been scheduled between December 15, 2018-January 3, 2019, nothing meaningful could have occurred since the important disclosure was not in the Crown's possession. The Defence wrote both a disclosure letter and conducted a CPT with Mr Hendry on January 22, 2019, however, the case was no further ahead. The Crown should not turn the tables on the defence and level criticism against the defence for not setting up a futile CPT when the Crown has not met its obligations in providing timely disclosure. (R. v. Vitalis, 2018 ONCJ 43, para. 44) Perhaps, if the Crown met its disclosure obligation by providing basic, but essential disclosure sooner than February 14, 2019, which was 85 days or 2 months and 24 days after the first court appearance, both the scheduling of a JPT and subsequent trial dates would not have been delayed. On February 23, 2017 the SCC in R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 ruled that a DRE opinion on impairment by drug was no longer subject to a voir dire. The 12-step drug evaluation was established by Parliament under the former section 254(3.1) which has been replaced by section 320.28 of the Code. The DRE's evidence is essential to the prosecution of any impaired operation by drug matter. This evidence is fundamental. It should be attained, prepared and submitted to the Crown and Defence just as efficiently and swiftly as the breath room video, certificate of analysis, calibration printouts, officer notes regarding field sobriety notes for an impaired operation by alcohol matter. I find that this period of delay is not defence caused delay.

[37] The second period of delay from February 28, 2019 to March 14, 2019, was necessary due to counsel's inability to review the disclosure and obtain his client's instructions during the previous 14-day period (February 14, 2019-February 28, 2019). The Crown submitted that half of the 28 days required to obtain and review the disclosure and seek the applicant's instructions should fall on counsel's shoulders. I do agree with the Crown's argument that the period of 28 days in order for counsel to review disclosure, show the video and other material to his client and seek instructions, is unreasonable, despite counsel's busy practice and commitments to other clients. (Vitalis, paras. 49-50). However, the initial period from February 14, 2019, to February 28, 2019, was entirely reasonable given the critical disclosure had been recently received. Therefore, the 14-day period from February 28, 2019, to March 14, 2019, is defence caused delay.

[38] With respect to the third time period from March 14, 2019 to April 4, 2019 the Crown submitted that because counsel was waiting to obtain medical documents the 22 days should be considered defence delay and or there was an implicit waiver of the applicant's section 11(b) rights. While I am unaware the materiality and relevance the documentation may have had on the charge of impaired operation by drug, counsel was seeking it and needed to pursue follow up discussions with the Crown. At first, this may be on the face of it possibly defence delay; however, there was still the necessity of conducting a CPT for the purposes of moving the matter along. The CPT held on January 22, 2020 accomplished the movement on making critical and important disclosure available. The second CPT was necessary to estimate the time for trial and or for the parties to discuss whether a JPT was necessary if, of course, the matter could not be resolved. I view this time frame just as important for the Crown as it was for the defence. During this period the Defence did set up a CPT for April 1, 2021. I find it quite ironic that the Crown attributed the delay to the Defence when in fact the PT Crown was not available on April 1, 2020 and the obligatory CPT had to be re-scheduled.

[39] In my view, this period should not be considered as defence delay. The scheduling of a CPT was still necessary which is a requirement in the normal progression of a case as it moves through the system. The second CPT was conducted on April 8, 2020, in which the parties agreed that a JPT was required. That JPT was scheduled on April 25, 2020. In my view, had the Crown been available on April 1, 2020, the JPT could have been set on the seventh appearance, April 4, 2020, rather on the eighth appearance, which was April 25, 2020.

[40] The Total Delay was 944 days, I have subtracted 14 days for Defence Delay. From the Net Delay I have subtracted 349 days for exceptional circumstances as the Covid-19 Pandemic is categorized as a discrete even which leaves 581 days or 19 months and 2 days of delay up to and including the end of the first trial date.

[41] In the result, the delay in this case is above the ceiling and is presumptively unreasonable. The Crown has not rebutted the presumption by establishing the presence of any further exceptional circumstances beyond what I have already decided and therefore, the application is granted, and there will be stay of proceedings.

Released: June 3, 2021 Signed: Justice Paul T. O’Marra