ONTARIO COURT OF JUSTICE
CITATION: R. v. D.L., 2021 ONCJ 385
DATE: 2021 03 23
COURT FILE No.: Collingwood 19-0904
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
D. L.
Before Justice Cecile Applegate
Heard on March 15, 2021
Section 11(b) Charter ruling released on March 23, 2021
M. Flosman........................................................................................... counsel for the Crown
D. Humphrey and P. Hamm................................................. counsel for the accused D.L.
APPLEGATE J.:
Introduction
[1] On January 23, 2019, D.L. was charged with two counts of sexual assault and six counts of assault in relation to his wife and daughters. His matter is set for trial with an anticipated completion date of May 5, 2021. The total amount of time from the date of charge to the anticipated end date of the proceedings is 833 days or 27.4 months. Even with concessions made for defence delay and exceptional circumstances, the defence submits that the remaining delay is presumptively unreasonable and violates D.L.’s s. 11(b) Charter rights.
[2] The Crown argues that, once the defence delay is deducted and exceptional circumstances are considered, the total delay would not be unreasonable.
Position of the Parties
[3] The parties submit that this is not a law-intensive application. They agree on the Jordan analysis and that COVID-19 is an exceptional circumstance to be considered.
[4] The areas of contention are: (1) characterizing the reason for the adjournment of the first trial dates scheduled in July of 2020; and (2) attributing the delay following the adjournment of the first trial dates.
[5] The defence argues that the vacating of the July 2020 trial dates was a result of late disclosure by the Crown and not a COVID-19 adjournment. The Crown submits that the entirety of the delay from the time courts were asked to shut down in March of 2020 until the trial was rescheduled is COVID-19 delay and ought to be deducted as an exceptional circumstance. Mr. Flosman argues that COVID-19 was a factor in the delayed Crown disclosure as well as the adjournment of the trial.
[6] In addition, the Crown submits that the requirement to hold a second judicial pretrial in the Ontario Court of Justice (“OCJ”) arose as a result of the applicant changing counsel. As such, a delay of 2-3 months ought to be deducted as defence delay. Mr. Humphrey resists this characterization by pointing out that this second judicial pretrial (and the pretrial held in the Superior Court of Justice) were conducted after further disclosure was received and were meaningful. In fact, they resulted in the Crown withdrawing certain charges and streamlining the trial issues and trial time estimates.
Procedural History
[7] Between January 23, 2019 to June 18, 2019, D.L. retained three counsel. All three counsel appeared to have reviewed the disclosure in a timely fashion and a first judicial pretrial was held with the first counsel on May 6, 2019. In June and July of 2019, D.L. found himself in bail court dealing with allegations of breaching his release conditions. At the same time, he was also addressing separate charges regarding a different complainant which were ultimately resolved on September 17, 2019. On September 10, 2019, current counsel set a second judicial pretrial to be held November 4, 2019. Despite some of these events having the potential to delay proceedings[^1], the parties agree that the matter continued to move “seamlessly” in the OCJ and that no delay ought to be deducted from January 23, 2019 – September 10, 2019.
[8] Given this concession, the relevant chronology from September 10, 2019 onwards is as follows:
DATE
EVENT
10 Sept 2019 (Collingwood)
Matter set for a judicial pretrial on November 4, 2019. The court offered an earlier judicial pretrial date of October 7, 2019.
4 Nov 2019 (Collingwood)
Judicial pretrial completed before Waddilove, J. Matter adjourned to next date to set a date for an expected preliminary inquiry.
19 Nov 2019 (Collingwood)
As a result of R. v. R.S., 2019 ONCA 906, the accused, no longer entitled to a preliminary inquiry, formally elects to proceed in the Superior Court of Justice (“SCJ”).
10 Jan 2020 (Barrie SCJ)
SCJ judicial pretrial commenced before Fuerst, J. Matter adjourned for defence to consider judicial pretrial discussions.
20 Jan 2020 (Barrie SCJ)
Application to re-elect to the OCJ. Defence waives delay from date of election to SCJ (Nov 19, 2019) to date that a trial date is set in OCJ (Feb 25, 2020).
28 Jan 2020 (Collingwood)
Matter adjourned for Crown to consider several issues. Section 11(b) waiver to the next date is confirmed.
4 Feb 2020 (Collingwood)
Adjourned to next date to set trial dates.
18 Feb 2020 (Collingwood)
D.L. is in custody. Defence attempts to set trial dates, but the Crown in charge of the matter, Fred Temple, is on vacation. Matter adjourned.
25 Feb 2020 (Collingwood)
D.L. is in custody. Trial dates of July 14, 16 and 17, 2020 set in Barrie.
At that time, counsel is advised by Mr. Temple that there may be additional disclosure involving materials received by the complainant [See Ex W of Affidavit of Michelle Agoston sworn March 3, 2021 - Mr. Hamm’s Letter to the Crown’s office dated May 20, 2020]
16 Mar 2020 (to 27 Nov 2020)
Due to the COVID-19 pandemic, criminal case management appearances for out-of-custody accused persons between March 16, 2020 and November 27, 2020 were adjourned, in the accused person’s absence, to another date. As of March 20, 2020, the OCJ was no longer setting criminal trials or preliminary inquiries, subject to a judge seized with a matter ordering otherwise.
As of March 26, 2020, the OCJ was not setting new trial dates including for in-custody matters. Trials scheduled to proceed on or after June 1 were deemed confirmed, subject to submissions otherwise.
As of March 27, 2020, in-custody persons were no longer appearing in courtrooms. Courtroom attendances were limited to judicial officials and essential court staff with appropriate social distancing measures. Courthouse entries were monitored with controlled entry for those attending for court-related purposes only.
[See OCJ Notices and Directives]
11 May 2020
OCJ Notice released advising that the court will not be returning to full operations on May 29, 2020 and that no trials or preliminary inquiries would be conducted until July 6, 2020 at the earliest.
20 May 2020
Mr. Hamm writes to Mr. Temple requesting whatever outstanding disclosure exists to be provided in advance of the upcoming trial.
8 Jun 2020
Trial readiness conference call held with Nichols, J. Defence advises they are ready to go subject to the outstanding disclosure. Mr. Flosman follows up.
25 Jun 2020
Binder of disclosure provided to the defence. It contains: (1) text messages between the accused and complainant around the time of some of the alleged offences; (2) photographs of marks or injuries purportedly attributable to the alleged offences; and (3) typed narratives prepared by the complainant providing additional details of the alleged offences.
2 Jul 2020
OCJ Notice outlining that courts identified to be healthy and safe to re-open in Phase One would resume hearing criminal trials and preliminary inquiries as of July 6, 2020 with a limited number of courtrooms. The Barrie Courthouse did resume OCJ operations with two in-person courts (Courtrooms #7 and #8). In addition to hearing those matters already scheduled for court, the Chief Justice issued a priority order and timeline regarding the rescheduling of trials and preliminary inquiries as follows:
Category
Scheduling will begin no later than
In-custody continuations
July 6, 2020
In-custody hearings adjourned due to COVID-19
July 7, 2020
Hearings adjourned March 16 – April 9
July 7, 2020
Hearings adjourned April 14 – May 8
July 9, 2020
Hearings adjourned May 11 – June 5
July 14, 2020
Hearings adjourned June 8 – July 3
July 16, 2020
New in-custody hearings and in-custody hearings adjourned on or after July 6
July 21, 2020
Out-of-custody continuations
August 5, 2020
Out-of-custody hearings adjourned due to COVID-19
To be announced
New out-of-custody hearings
To be announced
6 July 2020 (Barrie TMC)
Trial management court (“TMC”) before Bliss, J. Defence describes new disclosure as “game-changing”. Late disclosure is complicated by the fact that the accused no longer has his copies of text messages and emails.
Continuing judicial pretrial held before Nichols, J.
At the TMC following the judicial pretrial, Bliss, J advised that an adjournment of the trial dates is sought because of the new disclosure and that the disclosure “may entail a s. 276 application”.
Defence indicates that they were first advised of the new disclosure by Mr. Temple on January 28, 2020. Mr. Temple said it would be assigned to an officer to review it. Mr. Flosman “took charge of the situation” following the June 8 judicial pretrial and provided the disclosure to defence on June 24.
The Crown clarified that the texts came in two sets and that Mr. Temple may only have been in possession of the first set when discussing it with counsel earlier in the year. The Crown agreed that an adjournment was “inevitable” given the s. 276 application.
Neither party were in a position to set new dates given the defence was attempting to recover data from the accused’s laptop and the requirements of the s. 276 application.
Bliss J agreed to adjourn the trial dates. He commented that “the question is what happens next, in terms of scheduling, is something that needs further clarification - which hasn’t been received yet in terms of what we’re doing with matters”. He referenced the OCJ Notice regarding scheduling and “certain priorities” and not knowing where this matter would fall on the priority list. He anticipated that there would be further direction about the “scheduling of these matters” closer to July 31st.
The defence suggested the matter go over 4 weeks given “we’re not only in COVID-19 times” but the accused “is under house arrest and can’t leave except with one of his sureties” to allow the s. 276 materials to be prepared and filed.
9 Jul 2020
In order to address matters currently scheduled for trial and preliminary inquiries in the closed satellite courts, LAJ Bliss issued the following practice direction:
Effectively immediately, until in-person proceedings recommence in Bradford, Collingwood, Midland and Orillia, all trials and preliminary hearings scheduled to be heard in those court locations will be spoken to in the Trial Readiness Court in Barrie on the Monday of the week before the scheduled trial or preliminary hearing date . Where the Monday is a holiday, the Trial Readiness Court will be held on Tuesday. In advance of that date, it is expected that defence and crown counsel will have addressed the following and are able to advise the Court:
• Whether they and their witnesses are prepared to travel to Barrie to have the matter heard;
• If they are prepared to travel to Barrie, whether any portion of proceeding can/should be conducted remotely;
• If they are not prepared to travel to Barrie, whether they are nonetheless content to have the matter procced in Barrie with any required counsel or witnesses appearing remotely;
• If they are not prepared to travel to Barrie and are not prepared to have the matter conducted remotely, counsel will not have to call into the Trial Readiness Court provided they have sent an email to their counterpart confirming that the matter cannot be heard in Barrie and are content that the email communication form part of the record. The matter will then be put to its presumptive adjournment date according to the date it would have been heard.
10 Aug 20 (Barrie TMC)
Bliss, J advised that the defence has served and filed their s. 276 materials. The Crown is in the process of arranging counsel for the complainant.
The trial coordinator advises that “…we are now in the process of rescheduling matters under the Chief’s direction, I don’t think we’d be prepared to offer dates for this matter within the next two or three weeks seeing as the accused is not in custody”. She suggested adjourning to the presumptive date and “if we are able to offer dates prior to that we can always bring the matter forward”.
Bliss, J adjourns the matter to Sept 21, 2020 (being the presumptive date as of the trial date of July 14, 2020) and states “I expect that the Trial Coordinator's Office will ultimately get to these matters in terms of when they're being set, and it may well be that there will be some time to schedule it for a 276 application obviously in advance of when it's being scheduled for trial considerably earlier. And there may be earlier dates because there's sometimes these dates that become available with the matters resolving or other issues arising”.
The trial coordinator invites counsel to send in the trial scheduling forms once the complainant has counsel.
12 Aug 2020
OCJ Notice indicating that, as of August 17, 2020, the Court will begin scheduling out-of-custody cases adjourned due to COVID-19 as follows:
The Direction of the Chief Justice was refined to account for the satellite court structure in Simcoe County. In accordance with the Chief’s direction, the following scheduling priority regime was authorized for Simcoe County for matters adjourned due to COVID-19 and communicated/distributed to the Crown and defence (through the CLA):
i. Barrie in-custody continuations
ii. Satellite in-custody continuations
iii. Barrie in-custody matters that have not commenced scheduled in the order in which they were adjourned from March 16th
iv. Satellite in-custody matters that have not commenced scheduled in the order in which they were adjourned from March 16th
v. Barrie out of custody continuations
vi. Satellite out of custody continuations
vii. Out of custody matters adjourned due to COVID in order of when they were adjourned from March 16th.
Once vii was completed, the TC’s office would begin scheduling matters
originally scheduled in Barrie, then rescheduling Orillia and Muskoka as
part of Phase 2 expansion of court operations, and then rescheduling the
the satellites as those court locations resume in phase 3.
21 Sept 2020 (Barrie CMC)
The trial scheduling forms are completed and filed with the trial coordinator. Mr. Hamm advises they are waiting for dates from the trial coordinator. Matter is adjourned for two weeks.
14 Oct 2020 (Barrie CMC)
No transcript provided for this court appearance.
Mr. Hamm writes to the trial coordinator for an update and provides availability of all counsel. An assistant trial coordinator (“A/TC”) responds “we are not yet re-scheduling matters from Collingwood court as the courthouse has yet to re-open. Once it does, you will be contacted.”
18 Nov 2020 (Barrie CMC)
Mr. Hamm advises that the matter is to be adjourned to December 1, 2020 to await for trial dates and that the trial coordinator is still not giving dates for Collingwood matters.
24 Nov 2020
The trial coordinator reaches out to counsel regarding defence counsel’s August 4, 2020 email filing of the s. 276 materials and asks if this matter is completed or whether new dates are required. Mr. Hamm responds that they still require dates for the application and the trial. The trial coordinator advises that they have not commenced rescheduling out-of-custody Collingwood matters.
1 Dec 2020 (Collingwood CMC)
Mr. Hamm confirms they are waiting to set trial dates and a date for a 276 motion. Ms. Janiuk (one of the Collingwood Crowns) confirms she still does not have dates back from the trial coordinator and suggests adjourning into the new year where “they’ll have a better idea at that point…”.
5 Jan 2021 (Collingwood CMC)
Mr. Hamm re-iterates that the defence is still waiting to set trial dates and a date for a s. 276 application. Ms. Janiuk states “I have no idea at this point (indiscernible) setting dates (indiscernible). I suggest it go over a month”.
Jan 29 – Feb 1, 2021
An A/TC reaches out to the Collingwood Crowns to obtain a list of Collingwood matters that were adjourned due to COVID-19 and that have not yet been rescheduled in order to cross-reference with their tracker sheet. The purpose is to ensure that all previously adjourned matters have been addressed prior to scheduling new Collingwood matters. The A/TC believed that only self-represented matters were left to be addressed.
Ms. Janiuk provides a list which includes the D.L. matter. Mr. Flosman confirms that the parties are “ready, willing and one might go so far as to say eager” to set new dates.
The A/TC responds that “I do see this matter in my tracker, on a spread sheet in which was being used for something else, for some reason”. She confirms receiving the trial scheduling forms and arranges for the parties to attend the Zoom Scheduling Office.
9 Feb 2021 (Collingwood CMC)
Mr. Hamm advises that there is a trial scheduling meeting on February 11, 2021. Matter adjourned to February 16, 2021.
16 Feb 2021 (Collingwood CMC)
Dates are set for a s. 11(b) application by Zoom (March 15, 2021 in Barrie #10 plea court), s. 276 application (March 29, 2021 in Barrie #7 trial court) and for an in-person trial on May 3, 4, and 5, 2021 (Barrie #7 trial court).
As of today, as posted on the OCJ website, the courthouses that have resumed in-person criminal trials and preliminary inquiries in Simcoe-Muskoka include Barrie, Bracebridge, Bradford and Orillia. The Collingwood courthouse remains closed.
The Jordan Framework & Analysis
[9] The total delay from January 23, 2019 to May 5, 2021 is 833 days or 27.4 months.
What is the Net Delay?
[10] Net Delay is determined by subtracting any defence delay from the total delay. Defence delay includes: (1) delay arising from defence waiver; and (2) delay caused solely by the conduct of the defence. Any waiver must be informed, clear and unequivocal.[^2]
[11] The only deductible defence delay is delay that: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate because it was not taken to respond to the charges. Where the court and the Crown are ready to proceed but the defence is not, that delay should also be deducted. However, even where the Crown and court are ready to proceed, the defence is entitled to preparation time and non-frivolous applications by the defence should not be deducted as defence delay. The Jordan ceiling accounts for such procedural requirements.[^3]
[12] Inaction may lead to illegitimate defence conduct. For example, where defence counsel do not actively advance their client’s right to trial within a reasonable time or collaborate with the Crown to use court time efficiently.[^4]
[13] In this case, there is a clear and unequivocal defence waiver from November 19, 2019 to February 25, 2020 (99 days). In addition, the defence was not available for the first offered dates to complete the rescheduled trial on April 21, 2021 (14 days deducted between Apr 21 – May 5, 2021). Total delay to be deducted = 113 days.
[14] With respect to setting a second judicial pretrial, I agree with the Crown that, but for another counsel coming on board, such a judicial pretrial did not appear to be necessary at the time of these proceedings. Further, there was an earlier judicial pretrial date available to the court and the Crown. I find that the time between September 10, 2019 to November 4, 2019 is delay solely caused by the defence. Delay to be deducted = 55 days.
[15] Upon deducting the total defence delay of 168 days, the Net Delay is 665 days or 21.9 months which exceeds the presumptive ceiling of 18 months as set out in Jordan. This delay is presumed to be unreasonable.
Has the Crown established exceptional circumstances to rebut the presumption?
[16] To rebut the presumption, the Crown must establish that there were exceptional circumstances. If not, the delay is considered unreasonable and a stay will issue. Exceptional circumstances generally fall into 2 categories: (a) discrete events and (b) particularly complex cases. They include circumstances which usually lie outside the Crown’s control in that they are reasonably unforeseen or unavoidable and are such that the Crown cannot reasonably remedy the delay caused. The seriousness or gravity of the offence, chronic institutional delay and the absence of prejudice to the accused do not factor into this analysis.[^5]
[17] Discrete events can include a medical or family emergency for the accused, important witnesses, counsel or the trial judge, extradition proceedings or unexpected events at trial. Unforeseen or exceptional events that occur during a trial (ie. an unexpected recanting witness) can constitute a discrete event, as can trials that run longer than the realistic good faith time estimates made by the parties. Delay caused by the discrete event is deducted from the Net Delay. Any portion of the delay that could have been mitigated by the Crown or the system should not be subtracted.[^6]
[18] The parties agree that there was nothing particularly complex about this case. The Crown relies on COVID-19 as an exceptional circumstance to rebut the presumption.
[19] To date, several cases have concluded that the COVID-19 global pandemic meets the definition of exceptional circumstance.[^7]
[20] “A finding that the COVID-19 pandemic and consequent court suspension was a discrete event does not necessarily qualify the entire time period thereafter as an exceptional circumstance justifying delay beyond the presumptive ceiling. The Supreme Court of Canada made it clear in Jordan that judges must scrutinize the efforts of the Crown and justice system in mitigating delay. Portions of the delay that the Crown and justice system could have reasonably mitigated may not be subtracted from the net delay”.[^8]
[21] “Most of the cases addressing delay from COVID-19 have found the entire period of delay between the court suspension and the new trial date to be a discrete exceptional event to be subtracted from the net delay. The decisions of Gharibi and Simmons cite multiple examples of cases where the entire time from the start of the impact of COVID-19 up to the new scheduled trial date is deducted from net delay rather than just the period of the court suspension [citations omitted]. This does not preclude, however, the s. 11(b) judge's responsibility to assess whether there were also other causes contributing to delay during that same period [citation omitted]”.[^9]
[22] I agree with the defence that the cause of the adjournment of the July 2020 trial dates was the late disclosure provided by the Crown. While there is no denying that COVID-19 and its effect on the court system from March to July of 2020 would have impacted the ability to retrieve, screen and disclose evidence, my view is that there was ample time in the six months or so that the Crown/police had the new disclosure to take the necessary steps to vet it and disclose it in a timely fashion so as to not delay the July 2020 trial dates. Therefore, I find that COVID-19 does not explain the delay in providing the disclosure. No delay is deducted as an exceptional circumstance from March 16 – July 6, 2020 (the date the trial was adjourned).
[23] The defence argues that, because COVID-19 was irrelevant as a reason why the July 2020 trial dates were adjourned, the Crown cannot now rely on COVID-19 as an exceptional circumstance. I disagree. Regardless of the reason for the adjournment, COVID-19 is a significant factor when assessing the Crown and the court’s ability to mitigate the delay between the date the original trial was adjourned and the rescheduled trial date. The substantial impact that the pandemic has had on the ability of the criminal justice system to prioritize and reschedule matters with fewer resources has been referenced in several decisions dealing with this issue. In order to determine how much delay is an exceptional circumstance, a case-by-case factual analysis must be done.[^10]
[24] The defence, citing Greenidge, submits that, in order to rely on the pandemic as an exceptional circumstance the Crown must establish on a balance of probabilities that, but for the pandemic, earlier dates would have been obtained for this case to be tried and completed within the 18 month ceiling.[^11]
[25] I note that there are differences between Greenidge and our case. Firstly, in Greenidge, the original trial date was set outside the presumptive ceiling. The Crown realized it just before the pandemic and tried to rectify it. Further, as pointed out by Monahan, J, Greenidge was “not a case where the trial was scheduled to take place under the presumptive ceiling during the COVID-19 partial court shut-down and then had to be adjourned to a later date. Nor is it a case where the parties have requested a trial date and they are waiting to be assigned a trial date behind the cases the court had to reschedule which were adjourned cases due to COVID-19. If either of these circumstances were the case, then there could potentially be a direct link between the pandemic and the delay”.[^12] In our case, there is a direct link between the pandemic and the delay in being able to set a new trial date.
Analysis
[26] Bearing in mind these principles, when assessing whether the Crown has shown that the delay from July 6, 2020 (the date the first trial was adjourned) to April 21, 2021 (the anticipated completion of the first offered trial dates) constitutes an exceptional circumstance, I take into account the following factors.
[27] D.L.’s matter was a Collingwood matter. In normal circumstances, it would have been prosecuted in the Collingwood court. Pre-COVID-19, a Collingwood matter could be set in another court within Simcoe County (most often Barrie) when there were unique circumstances and with the trial coordinator’s approval. In this case, D.L. obtained July 2020 trial dates in Barrie because he was in custody at the time they were set.
[28] At all times during the pandemic, the Collingwood courthouse has remained closed. No trials are being held in the two Collingwood courtrooms and the case management court is being heard virtually. Despite this, a scheduling priority list was implemented to address the rescheduling of Collingwood matters adjourned during the COVID-19 closures, existing matters not yet scheduled as well as new matters entering the criminal justice system.
[29] Until Phase 2 was completed in September of 2020, Barrie was the only courthouse open to conduct trials and preliminary inquiries in Simcoe-Muskoka. At that time, there were only two in-person courtrooms. Thereafter, two more have been added (albeit one is temporarily on loan from the SCJ from January 2021 – May 2021). In September and October of 2020, the Phase 2 courthouses – Bracebridge and Orillia – reopened and began addressing their matters. In December of 2020, one of the Phase 3 courthouses – Bradford – reopened. To date, Collingwood, Midland and Huntsville all remain closed with their matters having to be funnelled into the open courthouses.
[30] Once the trial was adjourned, D.L. was no longer in custody. His matter was classified and streamlined in priority as a Collingwood out-of-custody matter. It was not a trial continuation as no trial had commenced. In my view, given the pressures on the trial coordinator’s office, the limited in-person courtrooms available in Simcoe County and the scheduling priorities set by the Chief Justice, this categorization was entirely reasonable. Even if it were not reasonable, the trial coordinator had no choice but to follow the priority set out. Given this, neither the Crown nor the court had the ability to mitigate any delay by placing the D.L. matter into a higher scheduling priority category in order to expedite it.
[31] On July 6, 2020, there was no ability to set any out-of-custody matters let alone satellite out-of-custody matters. Out of custody matters did not begin to be rescheduled until August 5, 2020 with those matters having been adjourned after July 6, 2020 commencing to be set September 21, 2020. D.L.’s matter would have been near the bottom of the priority list as a result of being an out of custody matter set for trial in July of 2020 and needing to be rescheduled.
[32] On the evidence before me, I accept that the trial coordinator was not yet scheduling Collingwood matters until some time after December 1, 2020. Therefore, there was no ability for the court or the Crown to mitigate the delay in setting a new trial date from July 6, 2020 to December 1, 2020. However, I find that the delay from July 6, 2020 to August 10, 2020 is directly related to the reason the trial date was adjourned. This time was used by the defence to prepare and file their s. 276 application in response to the new disclosure. Even if the courts had been able to accommodate setting new trial dates, none would have been set in that time period. For this reason, I find that this delay is directly related to the disclosure delay and not the COVID-19 circumstances. The Crown has not shown that the delay from July 6, 2020 to August 10, 2020 [35 days or 1.2 months] is an exceptional circumstance.
[33] The evidence becomes less clear as to whether Collingwood dates were being set between December 1, 2020 and February 1, 2021. The transcript from the January 5, 2021 court appearance contains several “indiscernible” and is unhelpful as the Crown appears to not know about dates being set. It is possible that counsel were not being advised that Collingwood dates were being set by January 5, 2021. It is equally apparent, however, that the trial coordinator’s office had begun rescheduling Collingwood matters when they sent their January 29, 2021 email to the Collingwood Crowns to ensure they had not missed any matters. Clearly, the D.L. matter had been missed. While the oversight was immediately addressed once discovered, I am unable to find that the delay from December 1, 2020 to February 1, 2021 is as a result of the inability to set new trial dates brought about by the pandemic. Specifically, on the evidence before me, the Crown has not established that the delay from December 1, 2020 to February 1, 2021 [62 days or 2.0 months] was delay that could not be mitigated by the Crown or the system.
[34] Once it was discovered that the D.L matter had been overlooked, the case appears to have been expedited through the trial-setting process and trial and application dates were promptly set.
[35] But for the periods mentioned above, I find that the Crown has established that the balance of the time is an exceptional circumstance due to COVID-19. To be clear, this is 289 days or 9.5 months (July 6, 2020 to April 21, 2021) less 35 days (the delay related to the delayed disclosure and not COVID-19) and 62 days (where the Crown failed to establish that the delay could not be mitigated by the Crown or the system) resulting in a discrete event of 192 days or 6.3 months. [Total delay of 192 days to be deducted].
[36] Upon deducting a further 192 days as delay caused by a discrete event, the remaining delay is 473 days or 15.5 months which does not exceed the presumptive ceiling as set out in Jordan.
Conclusion
[37] I find that D.L.’s s. 11(b) Charter rights were not violated. The application is dismissed.
Released: By email to the parties on March 23, 2021.
Justice Cecile Applegate
[^1]: See R. v. Cody, 2017 SCC 31, ¶ 40; R. v. Wookey, 2021 ONCA 68, ¶ 105 regarding assessing delay due to changes in counsel.
[^2]: R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27, ¶¶ 60 - 64; R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005, ¶¶ 35, 42-44 (C.A.); Cody, ¶¶ 22, 26, 27.
[^3]: Jordan, ¶¶ 63, 64, 65 and Cody, ¶ 30.
[^4]: Cody, ¶ 33; Jordan, ¶¶ 113, 121, 138.
[^5]: Coulter, ¶¶ 37, 46, 47; Jordan ¶¶ 47, 69, 71, 81; and Cody, ¶ 48.
[^6]: Coulter, ¶¶ 49, 50 and Jordan ¶¶ 72, 73, 75, 81.
[^7]: R. v. Ali Ismail, 2020 BCPC 144, ¶ 137; R. v. Folster, 2020 CarswellMan303, ¶ 28; R. v. Truong, 2020 ONCJ 613, ¶¶ 71-71; R. v. Greenidge, 2021 ONCJ 57, ¶ 23; R. v. Ali, 2021 ONSC 1230, ¶¶ 38 – 39; R. v. Simmons, 2020 ONSC 7209; R. v. Gharibi, 2021 ONCJ 63; R. v. Drummond, 2020 ONSC 5495.
[^8]: Ali, ¶ 40 relying on Jordan, ¶ 75.
[^9]: Ali, ¶ 42
[^10]: Drummond; R. v. Campbell, 2020 ABQB 624; Truong, ¶ 77, R. v. Simmons, 2020 ONSC 7209, ¶ 70.
[^11]: Greenidge, ¶ 30
[^12]: Greenidge, ¶ 27.