Court and Parties

Date: June 14, 2021 Ontario Court of Justice Central West Region Brampton Ontario

Between:

HER MAJESTY THE QUEEN

-and-

FORTUNATO ZAPPONE

Before: Duncan J.

Counsel: E Guimond, for the Crown T Sivarajah, for the defence

Reasons for Judgment

[1] This defendant is charged with several assault related offences against a woman, SG. The dates of the offences range from 2016 to 2019.

[2] This is an application to stay proceedings for delay. It is the second such application in this case, the first being dismissed by me in September 2020.

[3] Briefly, the history of the case is as follows:

May 9 2019 – information sworn October 31 2019 – trial date set for three days December 7-9 2020, 13 plus months from set date and 19 plus months from charge. Defence raises 11b concern. Court recommends that it come back in January to confirm whether 11b application will be brought and, if it is, to set the date for hearing of the application and “to give the Crown the opportunity to see if they want to take some other steps” January 7 2020 – defence confirms instructions to pursue 11b application. Date for hearing application set for September 23 2020. February 12 2020 – Crown sends first of two emails to defence counsel asking her to provide dates to reschedule trial. No response received February 21 2020 – Crown sends second email to defence counsel requesting dates. No response received. March 17 2020 – Covid pandemic hits. Courts shut down. July 2020 – Courts start to re-open in limited way September 23 2020 – 11b application heard and dismissed. I held that the failure to respond to the offer to set earlier dates was deductible defence delay that brought net delay below 18 months. December 7 2020 – Trial adjourned for reasons discussed below. In days following counsel alert trial co-ordinator to need to set new trial dates. Trial co-ordinator responded that it will be a while before that can occur due to the backlog of cases to be rescheduled due to covid. February 19 2021 – Zoom meeting with trial co-ordinator to set dates. First dates offered were March 24-26. Defence available but Crown rejects dates because OIC unavailable. Next dates offered were June 23-25 2021. These dates were accepted by both parties. June 25 2021 – Expected completion of trial.

Delay to Expected End of First Trial – December 9 2020

[4] Total delay: May 9 2019 – Dec. 9 2020 = 581 days (19 mos 1 day) [1]

[5] Defence delay: The Crown submits that there are two periods of deductible defence delay:

[6] The first is a one-month period (September 4 2019 – October 4 2019) between the holding of a Crown pre-trial meeting and setting the date for a judicial pre-trial. The Crown submits that the defence delayed setting the JPT dates even though the assigned Crown had provided his available dates by leaving them on Scope. The defence says that it tried repeatedly to get those dates but was unable to do so until the end of September.

[7] I do not think this is defence delay. At worst it was a miscommunication or misunderstanding between counsel. The defence does not have to be perfect. The over-all picture is the defence being more than diligent in trying to move the case forward to the point of the defence “hounding” [2] the Crown’s office to get the required information.

[8] The other, longer, more significant period of alleged defence delay is that which can be attributed to the failure of the defence to respond to the Crown’s invitation in February 2020 to set earlier dates.

[9] The Crown filed an affidavit of senior Crown counsel NJ Bridge which asserts, to paraphrase, that had the defence responded to the offer and but for the pandemic, re-scheduling would have been successful and that new dates would have been available almost any time from March on. This assertion was not challenged or contradicted.

[10] The Crown submits that this failure to respond makes the defence responsible for almost all of the time between the offers in February and the trial date of December 7. [3]

[11] The issues of defence delay and covid as an exceptional circumstance are interwoven but both affect the calculation of acceptable delay in the same way – by being deductible from total delay.

[12] In my earlier 11b ruling I focused on defence delay resulting from the failure of the defence to respond to the offer of earlier dates. I found that it was not necessary to quantify that delay because it was at least enough (one month) to bring the net delay below the presumptive ceiling.

[13] But since the trial did not go ahead on December 7 and the time to trial has now been extended, it becomes necessary to quantify the extent of defence delay in this first period, in order to conduct an 11b analysis of the whole extended period.

[14] In my view both sides share responsibility for the delay in setting new dates. The Crown bears responsibility because the issue was flagged at the set date on October 31 and confirmed on January 7 th – but the Crown took no steps to re-schedule for over a month, until its first email sent on February 12 followed by a second on February 21. The defence then failed to respond by the time the courts were shut down on March 17. Accordingly, both parties were almost equally responsible for new dates not being set before covid rendered re-scheduling impossible.

[15] My earlier ruling finding defence delay had in mind the approximately one-month period of no defence response from the date of the Crown email invitations to the covid lockdown. On reflection I think that might have been somewhat unfair to the defence in that it assumed that an almost immediate response was required. I don’t think it was.

[16] As is often said in 11b cases, no one case is an island. Defence counsel have many cases on the go at any time and can’t be expected to give immediate attention to every communication. Further, apart from its other cases, defence counsel who had just been put through a fairly arduous process to get to the point of setting a trial date – and then be told that the earliest possible date is almost 14 months away – cannot reasonably be expected to then spring into immediate action to redo the whole process at the Crown’s request. It took the Crown over a month to respond to the January 7 confirmation of the 11b application [4] . I think it would be fair to give the defence at least half that time to respond before characterizing its inaction as defence delay.

[17] Accordingly, in my view, the first 2 weeks to about March 3 was not defence delay. The next two weeks to the covid shutdown was defence delay. The time thereafter throughout the covid period was not “solely” caused by the defence and was therefore not defence delay. [5]

[18] In summary, to the first trial date in December 2020, Defence delay = 14 days.

Discrete Exceptional Circumstances

[19] The covid pandemic is clearly a discrete exceptional circumstance. But in this case it did not have a direct effect on the delay to trial since the set date to trial date (October 2019 – December 2020) leap-frogged the covid shutdown and did not prevent the trial on December 7 from being able to proceed.

[20] However, covid had an indirect effect in that it prevented the re-scheduling of the trial to dates falling within a constitutionally acceptable period. I have discussed this in greater detail in a recent decision, R v Khan, 2021 ONCJ 195, [2021] OJ 1718 . As in that case, I am satisfied that, had it not been for the pandemic, the Crown would have been successful in re-scheduling this trial to some date below the presumptive ceiling. [6]

[21] In most cases where that finding of likely success in rescheduling is made, it is not necessary to determine what new date might have been set since any date within the permissible Jordan period would defeat an 11b claim. But where, as here, the case is further adjourned, it becomes necessary to quantify to determine the extent of the covid deduction that applies to the ultimate delay.

[22] To make the determination, it should first be recognized that there must be a causal link between the covid event and any deductible delay. As Monahan J wrote in R v Greenidge, [2021] OJ No 468 , 2021 ONCJ 57 at para 26:

….it is not sufficient for the Crown in this case to point to the pandemic as an exceptional event and then say that it sought to provide an earlier trial date in the SCJ. This misses a critical point in the legal analysis. In my view, the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic. The Supreme Court in Jordan at paragraph 75 said that the "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" (my emphasis). .

[23] So for example, if a trial set in June 2020 could not proceed due to covid and was adjourned to a new trial date in January 2021, it could not be contended that the period from the start of the lockdown in March 2020 should be included in the deductible delay to the January trial date. The covid-caused delay would only run from the June date.

[24] However, where no date has been set, it is not obvious what the start date for calculation of the covid deduction should be. The whole covid period from March should not be included unless it is assumed that any new date would have been at the start of the covid period. [7] On the other hand, it cannot be assumed that the new date would have been close to the ceiling, thereby allowing only a minimal covid-caused deduction.

[25] In my view the only fair resolution of this problem is to assume a date halfway in the period in which the date could have been set – i.e. the remaining period before the presumptive ceiling is reached.

[26] So in this case, the new date had to be before November 9 2020, the 18 month point from date of the charge. From set date, March 3 to that date is 8 months 6 days. The midpoint is therefore 4 months 3 days – being the delay caused by the pandemic exceptional circumstance.

[27] In summary: Total time to first trial: 19 mos 1 day Less Defence delay: 0 mos 14 days Net delay: 18 mos 17 days Less Covid deduction: 4 mos 3 days Net/net delay: 14 mos 14 days

The December 7 Adjournment

[28] On opening of the court on Monday December 7 2020, Crown counsel advised that he had just received some late disclosure that morning, apparently consisting of photos and video clips that had been in the possession of the complainant. He needed time to review this material himself and to make copies and disclose it to defence counsel. He asked for an hour to do that.

[29] Over an hour later, on reconvening, the Crown told the court that he required further time as he was experiencing technical difficulties. He had still not viewed or disclosed the new material. He added that a further difficulty had arisen in that the complainant’s grandmother had died that weekend and the complainant would not be available to testify the next day, December 8. The Crown asked to hold the case down and speak to it again at 12:30.

[30] On return, the Crown sought an adjournment of the trial. He told the Court that in his estimation there was no longer sufficient time to complete the complainant’s evidence that day. She could not return the next day, Tuesday, due to the funeral arrangements that she, a licensed funeral director, would be handling. She was also not available on the third and last day set for trial, Wednesday, as that was the day of the funeral. The defence agreed that the complainant’s evidence could not be completed on Monday and that there was no alternative but to adjourn the trial. The adjournment was granted. It was adjourned to January 8 th to be spoken to.

[31] The setting of the new trial date was very protracted. Due to covid protocols in place, trial dates had to be booked by email. Counsel first submitted a time estimate and availability dates to the TC. This was done within a couple of days of December 7. The trial co-ordinator advised that it would be some time before she could set the dates as the court was busy setting dates on all the covid backlogged cases. When the time came, there would be a Zoom meeting with counsel and dates set.

[32] It was not until February 19 that the Zoom meeting was held, and dates were selected. The first dates offered were March 24-26, but the Crown rejected them because the OIC was unavailable. The next dates offered were accepted by both – June 23-25

Characterizing the Delay: December to June

[33] The time from December 7 2020 to June 25 2021 is 201 days or 6 months and 19 days.

[34] Two separate events or circumstances came together to cause the adjournment of the trial on December 7. One, the late disclosure of the video and photographic evidence may or may not be a discrete exceptional occurrence. More would have to be known before if could be concluded that it was unforeseeable or beyond the Crown’s control. The other – the death of the grandmother – was clearly a discrete exceptional event.

[35] Neither event, had it stood alone, would have resulted in an adjournment. Had the disclosure issue not arisen, the complainant would likely have finished her evidence on the Monday. The death would not have affected the trial. On the other hand, had the grandmother not died, the complainant would have been available for the next two days and the disclosure problem would have had no impact because there would have been ample time to complete the trial. In these circumstances, it is my view that the grandmother’s death caused the adjournment in the “sine qua non sense – “but for” that event, the trial would not have been adjourned.

[36] The delay was therefore caused by a discrete exceptional event. The ensuing delay is to be deducted from the total delay – but only to the extent that it could not reasonably be mitigated by the Crown. In Jordan, the Court said this 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 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).

[37] I think the Crown clearly failed to mitigate by rejecting the March dates in the absence of some indication that the OIC’s unavailability was not solvable. [8] Three months (March – June) should therefore be excluded from the deduction.

[38] The prolonged process of setting the new date is also concerning. It took two and a half months just to set the new trial date. There is no evidence that the Crown did anything to try to move the process along more quickly [9] .

[39] It is argued that the Court should have treated this case as deserving of special attention and the Crown failed to urge that it be put on a faster track to setting dates. The argument would be compelling at almost any other time. But at the relevant time all or almost all cases had a history of delay and disruption due to covid and the lockdown. In this rare context, this case was not exceptional and had no claim for special treatment in relation to all or most of the other covid backlogged cases.

[40] Further, if the system failed to mitigate delay to the setting of a new date, that failure is offset by the very early March date that was first offered – just slightly over a month down the road. This would be the bare minimum lead time to trial to allow for preparation. I have already faulted the Crown for not accepting those March dates and excluded the ensuing three months from any covid deduction. [10]

[41] The bird’s eye view is that following the adjournment in December, dates were offered for a three day out-of-custody trial just over 3 ½ months later. Even if relentlessly pressed by the Crown to expedite this case, it is hard to imagine the system doing much better, particularly in the context of the pandemic.

[42] In summary: Net/net delay to first trial date: 14 months 14 days Additional delay to June dates: 6 months 19 days. Total delay to end: 21 months 3 days Less discrete event deduction: 3 months 18 days Net/net delay to end: 17 mos 15 days

Delay Below the Presumptive Ceiling

[43] No submission has been made by the defence that this case comes within the sub-ceiling exception.

Conclusion

[44] The defendant’s right to trial within a reasonable time has not been infringed or denied. The application is dismissed.

June 14 2021 B Duncan J.

Footnotes

[1] This is slightly different than counsels’ calculation. I use Date Duration Calculator: Days Between Dates (timeanddate.com) . [2] The description used by defence counsel in her factum. I agree with it. [3] The Crown concedes that any re-scheduled trial would have to be at least one month away to allow time for preparation. That would exclude any pre-covid dates. [4] And over 3 months since an 11b concern was first raised by the defence and flagged for action by the Court [5] This re-assessment would not change my earlier ruling. There was still plenty of covid time to bring the net delay to the first trial date below the presumptive ceiling, as discussed below. [6] The new date would be some time below the ceiling because that would be the whole point in the re-scheduling exercise. [7] In this case the start of covid and the start of the remaining Jordan period into which the case could be rescheduled pretty much coincide. The goal was to set a new date within the Jordan period; there would be no reason to prefer an earlier rather than a later date in that period. [8] The OIC was not likely going to be a witness at the trial unless something unexpected arose. It is unknown whether he was unavailable because he had another case that day, it was his day off, whether he was on vacation or whatever. Some effort to work around this was required.. [9] In submissions Crown counsel said that the case was on the TC’s priority list. [10] The defence in its factum makes much of the Crown’s request on December 7 to put the case over to January 8 to set or have a JPT and set trial dates. But it was no longer possible to just go down to the TC and get new dates the same day. Covid protocols required dates to be set by email. The parties took the steps to provide the necessary information to the TC almost immediately after December 7. The delay thereafter was caused by the covid backlog and covid procedures. The requested adjournment to January 8 caused no delay.