ONTARIO COURT OF JUSTICE

CITATION: R. v. Lieu 2021 ONCJ 402

DATE: 2021 July 27

COURT FILE No.: Newmarket 4911 998 19 03599 02

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TIEN LIEU

Before Justice A. A. Ghosh

Heard on March 15, 21, April 14, 22, 28, May 10, July 12, 20, 2021

Reasons for Judgment released on July 27, 2021

S. Montefiore .......................................................................................... counsel for the PPSC

R. Rusonik ...................................................................................... for the applicant Tien Lieu

GHOSH J.:

Overview:

[1] Mr. Tien Lieu is being tried before me for possession of methamphetamine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act (CDSA). He has applied pursuant to s.11(b) of the Charter that his right to a trial within a reasonable time has been violated, and he seeks the presumptive remedy of a stay of proceedings. Much of the delay in this case has been informed by the COVID-19 public health crisis.

[2] I provided summary reasons dismissing the application. These are my final reasons.

Summary of the Procedural History:

[3] The following dates and events are relevant to the application:

May 2, 2020 Swearing of the information

July 18, 2019 Judicial pre-trial

August 1, 2019 Trial date set

March 16, 2020 Temporary cessation of non-urgent, out-of-custody hearings – COVID-19

May 4 and June 22, 2020 Start / end of COVID-19-adjourned trial

July 6, 2020 Resumption of out-of-custody hearings

Oct. 30, 2020 New trial dates set

March 15 and April 28, 2021 Start / anticipated-end dates of trial

Analysis:

The Jordan Framework for S.11(b) Unreasonable Delay

[4] In R. v. Jordan,[^1] the Supreme Court set out the contemporary framework for determining the reasonableness of delay to trial pursuant to s.11(b) of the Charter. As the Court summarized at paragraph 105:

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court… Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

Net Delay – Defence Delay Deducted from Total Delay

[5] Any delay caused by the defence must first be subtracted from the total delay. The total delay in this case was 24 months, spanning the swearing of the Information to the end of the anticipated trial. “Defence delay” involves either a waiver of the s.11(b) right or delay solely caused by the conduct of the defence.

[6] The applicant had not waived delay at any stage. Counsel agreed that one month of defence unavailability for the first trial could be characterized as defence delay. The net delay after accounting for defence delay is 23 months.

Exceptional Circumstances – COVID-19 Crisis as a Discrete Event

[7] As the net delay has exceeded the presumptive ceiling, the Crown must establish that either case complexity or the delay caused by a discrete event rebutted the presumption of unreasonableness. This case is not complex.

[8] It is agreed that the COVID-19 public health crisis is a discrete event and thus an exceptional circumstance that warrants some deduction from the net delay. It must be determined how much of the time between the two scheduled sets of trial dates must be deducted as a result.

[9] The first scheduled trial would have resulted in the completion of this matter within 13 months from the time of arrest. Less than two months before the scheduled trial date, the public health crisis intervened along with the related direction to pause all non-urgent, out-of-custody hearings. This caused the adjournment of applicant’s trial.

[10] The Crown submitted that the entire 10-and-a-half-month delay between the end of the adjourned trial in June of 2020 to its expected completion this past April should be deducted due to the crisis. The applicant only conceded that 2 months attributed to the crisis is deductible for the discrete event. This is the period between the adjournment of the trial and July 6th, 2020, when the resumption of relevant proceedings included this matter for rescheduling eligibility.

[11] Not all delay that follows a discrete event is necessarily deducted from the total delay. Only the delay “caused by” the discrete event must be deducted. Where the Crown and the system could reasonably have mitigated the delay caused, that delay may not be deducted. Within reason, the system should be capable of prioritizing cases affected by a discrete event.[^2]

[12] This reasoning animates the applicant’s position that as soon as similar trials first resumed on July 6th, 2020, in the absence of mitigating steps by the State, the ensuing delay should not be deducted. To this end, the defence had promptly offered a virtual trial and was available throughout much of the summer and fall. It was submitted that this case should have been reprioritized and that it should not have taken until the end of October to set the trial for the spring of 2021.

[13] Acceptance of the applicant’s submission would require me to unduly minimize the steps taken by the justice system to mitigate systemwide delay in response to the crisis and to ignore the maxim that “No single case is an island”. Trials throughout the province were adjourned during this time. Once the public health crisis struck, all court operations were impacted in obvious and subtle ways. Without taking judicial notice, it cannot be disputed that this contributed to a significant and regenerating backlog of cases that required unprecedented scheduling attention. It placed pressure on the system, and notably on the offices of the trial coordinator.

[14] The expectation on the Crown and the system to properly prioritize and mitigate any delay to Mr. Lieu’s trial must be informed by the fact that this discrete event also impacted almost every case in the province. The defence offer of a virtual trial, while helpful, cannot be dispositive of delay attribution here. It is accepted that the immediate and indefinite availability of the defence during normal times would not drive the analysis. If this were ever true, it would be during a pandemic. There is no evidence that court resources notably expanded to accommodate any influx of virtual trials.

[15] July 6th, 2020, only signalled the start of the incremental reopening for out-of-custody hearings in a limited number of courtrooms in selected courthouses, including our own. At the time Mr. Lieu was subject to the presumptive remand protocol awaiting direction as to when his case could be rescheduled. His trial was not yet eligible to be heard after July 6th. There was an existing inventory of previously scheduled cases.

[16] I disagree that the court and the Crown did little to mitigate the delay. The pandemic protocols themselves were mitigating in nature and properly constrained any Crown endeavours to prioritize as the applicant preferred. Also, “prompt resort to case management processes”[^3] was made through the mandated participation in a “COVID-19- pretrial” before the new trial dates could be set. Neither the Crown nor the system could reasonably have done more in this case to mitigate the delay caused by the crisis.

[17] The court’s August 12th “Notice to the Profession” directed that “scheduling will begin no later than” August 31st for the applicant’s trial and others throughout the province that had been adjourned during the same window. The applicant’s trial was rescheduled two months later on October 30th. While Mr. Lieu submitted this was unreasonable, the rescheduling protocol did not assure the prompt setting of new dates as soon as eligibility arose. It was reasonable given the scope of the rescheduling undertaking.

[18] I have discussed the pressures that prevailed on the system at the time. I would not attribute to the system the delay between August 31st (rescheduling eligibility) and October 30th (trial date set). However, for discussion, I will hold the system responsible for these two months. Another six weeks will be attributed to the Crown for its unavailability for the second scheduled trial dates. The rest of the delay between the end of the first scheduled trial on June 22nd and the anticipated end of the trial this past April must be deducted as delay caused by the discrete event of the public health crisis. At its highest, the remaining delay is 16.5 months and below the ceiling.

Remaining Delay Below the Presumptive Ceiling – Reasonableness

[19] The remaining delay of 16.5 months is below the ceiling for presumptive unreasonableness. In clear cases, such delay may still be unreasonable if the defence took meaningful steps to show a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have.

[20] I accept that the defence consistently endeavoured to expedite the trial. However, the case has not taken markedly longer than it should have. Again, the trial would have completed approximately 13 months after the arrest had the public health crisis not been declared less than 2 months before the adjourned trial date. The delay that followed was unfortunate but necessary and reasonable in the circumstances.

Post-Script – Mid-trial Delay

[21] During final submissions on July 20th, 2021, the delay application was orally renewed. The trial will not be finally determined until the beginning of August. I summarily dismissed the renewed application. I accept that once the trial began there were some unanticipated delays that cannot be attributed to the conduct of the defence.

[22] This trial was a s.8 Charter challenge to various authorizations. While I ordered disclosure of certain items, the Crown had opposed the application on a principled basis that was founded in law. I ruled on disclosure and delay within a day, but the disclosure process took time. The generation of the final judicial summary of the redacted materials was properly informed by the applicant’s submissions. As a result of those submissions, the Crown and I reconsidered some of the redactions and the draft summary. This required both independent and collective deliberation and took some further time.

[23] Counsel offered to file written submissions. While the Crown received a largely realized draft of the applicant’s written submissions, the final version was filed four days before the hearing. It would have been reasonable for the Crown to wait until the final version was served before even beginning to craft her response. Fairness dictated that I grant her request for a further week to respond. I afforded myself a little over two weeks to finally determine the matter.

[24] “Trials are not well-oiled machines.”[^4] The delay that arose during trial was reasonable. This delay did not cause the overall delay to become unreasonable. Allowing for reasonable mid-trial delay and the time to rule on the application, the remaining delay is still below the ceiling and remains reasonable. The application is denied.

Released: July 27, 2021

Signed: Justice A. A. Ghosh

[^1]: 2016 SCC 27, [2016] S.C.J. No. 27 [^2]: R. v. Jordan, paragraph 75 [^3]: R. v. Jordan, paragraph 70 [^4]: R. v. Jordan, paragraph 73