Ontario Court of Justice

Date: June 10, 2021

Between:

HER MAJESTY THE QUEEN

— AND —

JACOB OLMSTEAD

Before: Justice R.S. Gee

Heard on: May 27, 2021

Ruling on Accused’s 11(b) Application released on: June 10, 2021

Counsel: Anthony Minelli, for the Crown Megan Stuckey, for the defendant

Gee J.:

[1] On November 5, 2018, the Brantford Police were granted a search warrant for the residence of the accused, Jacob Olmstead. The police seized computers and other electronic devices and after a search of them, Mr. Olmstead was charged with possession of child pornography.

[2] Mr. Olmstead has now brought an Application for a stay of proceedings alleging his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter has been infringed.

[3] For the reasons that follow, the Application is dismissed.

Factual Basis for Application

[4] I wish to begin by commending counsel on how this Application was argued. The issue in the matter was distilled down to one time period; how the delay occasioned by the COVID-19 pandemic ought to be treated. All other issues, except one minor one, the starting date for the pandemic caused delay which in the end did alter the outcome, were agreed to. When counsel cooperate like this, and are focused and fair in their arguments, it is beneficial for all and deserves recognition.

[5] Mr. Olmstead was arrested on November 6, 2018, and released on bail on November 7, 2018. The Information was sworn on November 7, 2018, as well.

[6] Since much of this Application is not in dispute and the issue focused on the one time period, it is not necessary to recite in great detail a history of the proceeding. Disclosure was made available to the accused on his first appearance after release on December 7, 2018. However, further disclosure, some of which was significant, such as forensic reports and the ITO sworn to support the search warrant, came in some time later.

[7] It appears counsel cooperated throughout and the expected trial management discussions were held between counsel for the Crown and defence as were several Judicial Pre-Trials. Eventually, three days of court time were reserved for the matter. January 13, 2020, was set for pre-trial Applications and a two-day trial was scheduled for February 28 and March 2, 2020.

[8] For a variety of reasons, including new disclosure and counsel not completing their Application materials, the pre-trial Application and the trial did not proceed on these dates. The dates were ultimately reset with the pre-trial Application set for April 9, 2020, and the trial reset for June 8 and 9, 2020.

[9] On March 2, 2020, the trial coordinator emailed counsel to advise the trial dates as reset, conflicted with a homicide preliminary inquiry that was also set in the same court for the same time. As counsel and the trial coordinator began to explore if other dates may be available for this matter, the COVID-19 pandemic was declared and all in person matters ceased as of March 16, 2020.

[10] As a result, the matter did not proceed on the dates then set and was presumptively adjourned from time to time as a result of Court directives issued as a result of the pandemic. On October 26, 2020, the matter was reset. January 26, 2021, was set for the pre-trial Application and a two-day trial was set for March 1 and 2, 2021.

[11] The pre-trial Application, a s. 8 Charter challenge to the issuance of the search warrant was heard January 26, 2021, and dismissed for reasons released on February 10, 2021.

[12] On February 26, 2021, the accused brought an Application to adjourn the trial set for March 1 and 2, 2021, and instead proceed with this 11(b) Application. The Crown consented on the basis that the end date for the purpose of any 11(b) delay calculation will be March 2, 2021.

The Jordan Framework

[13] The Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631 established a framework to be applied when an accused alleges a s. 11(b) infringement has occurred. The framework establishes a presumptive 18-month ceiling for cases tried in a provincial court.

[14] How to apply the framework was summarized by the Court of Appeal in R. v. Coulter, 2016 ONCA 704, in paragraphs 34 to 40 as follows:

(a) Calculate the total delay, from the charge to the anticipated end of trial.

(b) Subtract from this total delay any defence delay to get the net delay.

(c) Compare this net delay to the presumptive 18-month ceiling.

(d) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. The Crown can rebut this presumption if it can establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

(e) 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.

(f) 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.

(g) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[15] This is not a case, where the defence is arguing that delay below the presumptive ceiling is unreasonable.

The Framework Applied

[16] Counsel have agreed on most of the calculations required by the Jordan framework. It is agreed the total delay is from November 7, 2018, the date the Information was sworn, to March 2, 2021, the anticipated end of trial. This is a total delay of 846 days or 27 months and 23 days.

[17] Counsel have also agreed the delay attributable to the defence totals 82 days. When this defence delay is subtracted from the total delay, the net delay is 764 days or 25 months and 3 days.

[18] This delay is still above the presumptive 18-month ceiling but counsel have acknowledged the pandemic wrought by COVID-19 is a discrete event that qualifies as an exceptional circumstance. Where the parties differ, is how much of this delay ought to be classified as a discrete event.

[19] The Crown’s position is the entire period between June 9, 2020, when the trial was adjourned as a result of the pandemic to March 2, 2021, the end of the trial after it was reset, was a discrete event. This is 266 days or 8 months and 21 days. If this argument is accepted, deducting this discrete event period from the net delay results in remaining delay below the presumptive ceiling of 498 days or 16 months and 13 days.

[20] The accused takes a different position. The accused argues the trial dates of June 8 and 9, 2020, cannot be used as a starting point for the calculation of the discrete event time as the conflict with the trial dates and the homicide preliminary inquiry noted earlier would have meant the trial would not have proceeded on those dates irrespective of the pandemic.

[21] The defence also argues that it is not appropriate to use March 2, 2021, as the end date for the discrete event time as sufficient efforts were not made to ameliorate the delay caused by the pandemic. It is the defence position that, even prior to the pandemic, this was a matter that was approaching the 18-month presumptive ceiling. Given that, more attention should have been paid to mitigating the delay caused by the pandemic to this particular case.

[22] The defence argues the time to be deducted as a discrete event due to the pandemic is from June 18, 2020, the date which a further Judicial Pre-trial was held and approval to set 3 days for the matter was given, to October 16, 2020. It was on this date that the matter was ultimately reset. January 26, 2021, for the s. 8 Application and March 1 and 2, 2021, for trial.

[23] This time period from June 18, 2020, to October 16, 2020, is 120 days or 3 months and 28 days. When deducted from the net delay of 764 as calculated above, this results in a remaining delay of 644 days or 21 months and 3 days which is above the presumptive ceiling of 18 months.

[24] For the reasons that follow, I agree with the Crown position in this matter. I find that the entire period from June 9, 2020, to March 2, 2021, was a discrete, exceptional circumstance caused by the COVID-19 pandemic. This entire period is to be deducted from the net delay, resulting in remaining delay below the presumptive ceiling.

[25] Dealing first with the issue of why it is appropriate to calculate this time from June 9, 2020, even though the matter was scheduled in conflict with another case, I would note that Jordan urged all judicial system participants to take steps to address all issues that may cause delay (see Jordan, par. 5, 40 and 116). In this case, that is what the trial coordinator did. When the scheduling conflict was identified, she immediately brought it to the attention of counsel. Counsel were also doing what was expected of them; they were in the process of addressing the issue to determine how to deal with it. It was only a matter of days after counsel began this task, that the pandemic overtook these events.

[26] I find it is simply too speculative to presume this matter would not have proceeded as scheduled on June 8 and 9, 2020, absent the pandemic. Counsel had only begun the process of canvassing new dates when the pandemic made it clear all matters then set would not be proceeding. That this matter would have been delayed due to the scheduling conflict is only one of several possible outcomes. Earlier dates may have been able to be secured. The other matter may not have proceeded for some unknown reason. Further judicial resources may have been secured to ensure both matters proceeded.

[27] It was simply too early in the process of addressing the conflict to guess which of these outcomes may have resulted. As such I find for the purposes of this Application, the most appropriate starting point from which to start calculating the delay that arose from the pandemic is to select June 9, 2020, the end of the trial dates as then set.

[28] In any event, even if I were to agree with the accused and calculate the start of the exceptional circumstances time period from June 18, 2020, as he suggests, I would still find the end date for the calculation to be March 2, 2021. This would only be a difference of 9 days between the two calculations and would still result in remaining delay below the presumptive ceiling.

[29] I have also determined that the entire period from June 9, 2020, to March 2, 2021, should be considered a discrete event caused by the pandemic and deducted from the net delay. The delays caused by the pandemic have spawned an evolving body of legal jurisprudence. We ought not lose sight of what the pandemic was and still is. It is a once in a lifetime event. It is an event not seen in the last hundred years. It disrupted every aspect of society, not just the justice system, from the healthcare system, educational system, to all aspects of the economy and industry.

[30] The effects of the virus as well were not well known or understood as the pandemic began to rage. It became clear very quickly as the virus spread through long-term care homes that its effects were often deadly and it seemed to have a disproportionate effect on some of society’s most vulnerable individuals. Proper health and safety protocols and the requirements necessary to limit transmission of the virus were rapidly evolving. How to retrofit workspaces and implement effective social distancing measures to ensure the safe operation of workplaces was occurring everywhere, including courthouses.

[31] It is in this context that decisions had to be made to ensure the justice system could continue with the essential work it does while trying to also provide a safe working environment for all justice system participants. See also the comments of Justice Faria in R. v. Gharibi, 2021 ONCJ 63 at paragraphs 48 to 56 which are particularly apt. As are the comments of Justice North in R. v. Truong, 2020 ONCJ 613 in paragraphs 73 to 75.

[32] As Doherty J.A. stated in R. v. Allen (1996), 92 OAC 345, at p. 348, “no case is an island to be treated as if it were the only case with a legitimate demand on court resources.” The COVID-19 pandemic disrupted and delayed every case that was in the system when it struck. Crime did not cease due to the pandemic and new cases continued to be added to the backlog created by delay. Decisions had to be made to deal with this backlog in the context of a pandemic that was then, and still is ongoing. Priority in resetting cases was given, rightfully so, to in-custody matters. Out of custody and other matters were then allowed to reset their dates on a staggered basis, depending on when they were presumptively adjourned. The decision by the court to address these cases in this fashion was reasonable in the circumstances.

[33] The staggered approach to resetting trial dates was published in a Notice to the Profession published by the Ontario Court of Justice on August 12, 2020. It meant that this case was eligible to be reset for trial beginning no later than September 14, 2020. In order to begin the process for resetting trial dates counsel were required to complete and submit a trial Scheduling Form. In this case Crown and defence counsel completed and submitted this form on September 23, 2020. On October 16, 2020, dates were secured. January 26, 2021, for a one-day s. 8 Charter Application and two days for trial on March 1 and 2, 2021.

[34] Notwithstanding the backlog in the system created by the pandemic the first full day provided for this matter was just over three months from the date it was being selected and approximately 7.5 months from when the matter was delayed. The trial dates were then able to be heard 34 days later and just under 9 months from when delayed by the pandemic. It should be also remembered, the s. 8 Charter Application in this matter had to be heard at least 30 days before the trial date. In all the circumstances, that this matter was able to be accommodated in such a period of time after the scale of the disruption caused by the pandemic is nothing short of remarkable.

[35] I would note as I write this, Ontario is now only moving out of the third wave of the pandemic. Stay at home orders issued in April have only recently been lifted. All non-essential businesses are still closed to in-person activity. Notwithstanding increased vaccination rates, the pandemic is still affecting all aspects of daily life. Another cohort of cases were adjourned between the stay at home orders issued in April until May 21, 2021. In spite of this, the justice system continues to respond to these challenges.

[36] In this context, in this case, I find the steps taken by all parties to address the delay, move the matter forward and reset the trial dates were reasonable. This matter, even though it was approaching the 18-month presumptive ceiling prior to the pandemic caused delay, was not left to languish. The manner in which cases were prioritized to be reset was reasonable in the overall context of the pandemic and the disruption it caused. Furthermore, there is no evidence before me this prioritization methodology was not adhered to in resetting the dates in this case, or that other matters were inappropriately prioritized over this case. It is for these reasons that I find the entire period of delay caused by the COVID-19 pandemic from June 9, 2020, to March 2, 2021, is a discrete, exceptional circumstance and will be deducted from the net delay.

[37] As noted earlier, this area of jurisprudence is evolving. The body of cases emerging though seems to establish for the most part that the entire period of delay caused by the pandemic will be considered a discrete, exceptional circumstance. In addition to Gharibi and Truong mentioned above, see: R. v. Drummond, 2020 ONSC 5495, R. v. Gutierrez, 2020 ONSC 6810, R. v. Simmons, 2020 ONSC 7209, R. v. Stack, 2020 ONCJ 544, and R. v. G.R., 2020 ONCJ 578.

[38] When this pandemic related exceptional delay is deducted from the net delay, the remaining delay is 498 days or 16 months and 13 days. This is below the presumptive ceiling.

[39] As a result, the delay in this case is not unreasonable and the accused’s Application is dismissed.

Released: June 10, 2021 Signed: Justice R.S. Gee