Court File and Parties
Court File No.: 4860 999 00 7116055Z 00 Date: October 21, 2021 Court: Ontario Court of Justice (Toronto Region)
Re: HER MAJESTY THE QUEEN (The City of Toronto), Respondent And: MOHAMMAD SULEMAN YAQOOBI, Applicant
Nature of Hearing: Section 11(b) Charter Ruling
Before: Justice of the Peace R. Rodrigues
Counsel: Ms. I. Benjamin, Counsel for the Prosecution Mr. C. Walpole, Agent for the Applicant
Heard: October 5, 2021 Reasons Released: October 21, 2021
Introduction
[1] On October 5, 2021, and prior to entering a plea, agent for the Applicant brought a motion for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (“the Charter”) on the ground that the Applicant's right to be tried within a reasonable time, as secured by section 11(b) of the Charter, has been infringed. The prosecution opposes this motion seeking a stay of proceedings.
[2] Agent for the Applicant provided the court with a brief Motion Record, as well as an affidavit confirming the Provincial and Federal Attorneys General were served with a copy of the Motion Record in accordance with section 109 of the Courts of Justice Act. Transcripts of prior appearances were not filed as October 5, 2021 was the matter’s first appearance. With the consent of the parties, and as the hearing of the motion extended well past the time fixed for the tier, I adjourned the matter to October 22, 2021 to provide my decision and reasons on the motion.
[3] For the reasons below, the application is dismissed.
Background and Chronology
[4] On June 24, 2019, the Applicant was charged with failing to stop for a red light, contrary to section 144(18) of the Highway Traffic Act (the “HTA”) and served with a Part I certificate of offence. What follows is a chronology of events in this matter:
On July 3, 2019, the Applicant filed his notice of intention to appear for trial and requesting the matter be set down for trial.
A trial date was scheduled for May 19, 2020.
On January 27, 2020, disclosure in the form of the officer’s notes was provided to the Applicant’s agent.
On March 17, 2020, the Government of Ontario enacted a Declaration of Emergency to help contain the spread of COVID-19. The said Declaration was lifted on July 22, 2020.
On March 23, 2020, a public notice was posted on the Ontario Court of Justice (the “OCJ”) website advising Provincial Offences Act (“POA”) matters scheduled from March 16, 2020 through to and including May 29, 2020 would be “rescheduled to a later date.” Consequently, the Applicant’s trial did not proceed as scheduled on May 19, 2020 as scheduled.
Starting on March 15, 2020 and continuing until November 25, 2020, the Chief Justice of the OCJ issued several orders pursuant to section 85 of the POA extending certain time periods for proceedings in the OCJ.
Starting March 19, 2020 and continuing until September 1, 2021, several notices to counsel/paralegals and the public were posted on the OCJ website regarding POA matters proceeding in the OCJ. The March 31, 2021 notice, the only notice provided by the prosecution in this matter, states, in part:
The Ontario Court of Justice continues to work with stakeholders to ensure all courts, including Provincial Offences courts, can return to operations in a safe manner. The Ministry of the Attorney General’s Recovery Secretariat is working with the municipalities that administer Provincial Offences courts to facilitate a consistent, province-wide recovery plan for all Provincial Offences courts. To ensure that municipalities safely reopen physical courthouses to meet provincial public health standards the Recovery Secretariat will take a leadership role in guiding a safe physical reopening of courthouses, based on provincial public health advice.
Remote hearings by video conference may begin as described in s. 4.1.2. This includes both trial and non-trial proceedings (guilty pleas, withdrawals, judgment delivery, first appearances, and adjournments). Remote proceedings currently being conducted by the Court, including proceedings by audio conference described in s. 4.1.1 will continue.
4.1 Remote Hearings
4.1.1 Remote Hearings by Audio Conference
Beginning September 28, 2020, the Ontario Court of Justice will hear non-trial POA proceedings (e.g., guilty pleas, withdrawals, judgment delivery, first appearances, and adjournments) remotely by audio conferencing. In addition, beginning October 19, 2020, the Ontario Court of Justice will hear closing submissions of trials, sentencing submissions and impose sentences remotely by audio conferencing subject to the direction of the Justice of the Peace assigned to the matter.
If you have a matter that will be proceeding by audio conferencing, you or your representative will receive notice of your hearing date from the court office. Please ensure your contact information is up to date with the court office where your matter is being heard.
4.1.2 Remote Hearings by Video Conference
Provincial Offences Act proceedings may begin by video conferencing. Both trial and non-trial proceedings (guilty pleas, withdrawals, judgment delivery, first appearances, and adjournments) may proceed by video.
Proceedings will be scheduled by video conference as soon as the court location makes the technology available and has advised the Ontario Court of Justice of their readiness to support video proceedings.
On September 28, 2020, additional disclosure, in the form of a DVD presumably containing camera footage pertaining to the alleged offence, was provided to the Applicant’s agent.
A revised notice of trial for October 5, 2021 was issued on August 19, 2021.
On September 16, 2021, the Applicant, through his agent, gave notice to the Crown of the within Application and properly served the Attorneys General.
The October 5, 2021 trial date was the Applicant’s first appearance.
The Law
Jordan and the POA
[5] It is now well established that section 11(b) of the Charter applies to regulatory matters. The Charter itself refers to “offence” not to “criminal charge”. Indeed, the Supreme Court of Canada, in R. v. CIP Inc., [1992] S.C.J. No. 34 (S.C.C.), held, at paragraph 44, the Charter does not distinguish between types of offences, since an accused’s interest in the availability and reliability of substantiating evidence will exist irrespective of the nature of the offence with which that person is charged. But more important, the Supreme Court held that the right to be tried within a reasonable time is engaged when a person is charged with “an offence”.
[6] In R. v. Jordan, 2016 SCC 27 (“Jordan”) the Supreme Court of Canada set a presumptive ceiling of 18 months for the trial of matters in provincial courts. Where the time to trial is under this ceiling, the delay is presumed to be reasonable and the onus is on an applicant to establish that it is unreasonable. To do so an applicant must establish that s/he took meaningful sustained steps to move the case along; and that the case took markedly longer than it reasonably should have. When the delay is beyond the 18-month ceiling for OCJ matters, it is presumptively unreasonable, and the Crown bears the onus of justifying that delay. If the Crown cannot rebut the presumption a stay follows. Justification for delay is restricted to "exceptional circumstances."
[7] The within proceedings were instituted under Part I of the POA. The Applicant did not argue a lower presumptive ceiling should apply to Part I provincial offences and it is now well-established the 18-month presumptive ceiling established in Jordan applies to proceedings under Part I of the POA: R. v. Nguyen, 2020 ONCA 609.
The Jordan Analytical Framework
[8] In determining whether an individual's section 11(b) right has been infringed, first the court must assess the total delay. Here, this is a straightforward exercise beginning with the laying of the HTA charge and service of the Part I certificate of offence and ends with the actual or anticipated conclusion of the trial: Jordan, para. 48.
[9] Second, defence delay must be deducted from that total, which is the “net delay”: Jordan, para. 66.
[10] Third, if that delay is beyond the 18-month ceiling for OCJ matters, it is presumptively unreasonable: Jordan, para. 68. The Crown bears the onus of justifying that delay: Jordan, para. 47. If the Crown fails to rebut the presumption a stay follows: Jordan, para. 47. Justification for delay is restricted to "exceptional circumstances": Jordan, para. 47.
[11] 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. 69.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] Neither party submitted this matter is complex, and I agree.
[17] Neither party alleged any defence delay, and I agree. As well the Applicant provided timely notice of the within Charter s.11(b) application, and it was argued on the re-scheduled trial date.
The Position of the Parties
[18] The Applicant submits the delay “is prima facie and manifestly excessive” and while POA and criminal courts were closed on March 16, 2020, criminal courts re-opened on July 6, 2020 and this “should have trickled down to the less difficult court stream” as “POA court matters are less complex than criminal court matters.” The Applicant adds, in his written materials, on July 6, 2020 the “criminal courts reopened utilizing phone audio and zoom hearings. Despite the provincial offences court already having phone audio capabilities, neither the court administration, nor the prosecution did anything to bring this matter forward.” The Applicant further maintains “It is factually incontrovertible that the Provincial Offences court could have continued to work and remained open. While criminal court [sic.] did not have such a mechanism, the mechanism already existed in POA proceedings.”
[19] Given the July 6, 2020 date, above, the Applicant submits 3 months and 20 days should be subtracted for exceptional circumstances as the COVID-19 pandemic is a discreet event, which leaves 23 months and 15 days of net delay, up to and including the October 5, 2021 trial date, for the prosecution to justify.
[20] The prosecution concedes the net delay exceeds the presumptive 18-month ceiling and the issue to be determined is how much time should be subtracted for exceptional circumstances, as the COVID-19 pandemic is a discreet event, and “due to [the courts’ and prosecution’s] compliance with the [Provincial government’s] emergency order.”
[21] The prosecution submits, in compliance with the “order” of the Toronto Regional Senior Justice of the Peace (“RSJP”) “directing” all POA matters scheduled to be heard between “March 16, 2020 and January 22, 2021” be “re-scheduled”, thereafter a revised notice of trial, for October 5, 2021, was sent to the Applicant. As stated above, agent for the Applicant stated the revised notice was sent out on August 19, 2021. The prosecution submitted “at minimum” the period from “March 15, 2020 to October 5, 2021”, or 18 months and 19 days, should be attributed to the COVID-19 discreet event and subtracted from the net delay, leaving a remaining delay of 8 months and 22 days.
Analysis
[22] The initial step in a Jordan analysis is to determine the total delay. By my calculation the total delay in this case, from the date of the HTA charge to the anticipated end of the trial date, that is from June 24, 2019 to October 5, 2021, is a period of 27 months and 12 days (834 days). As no delay is attributable to the Applicant (defence delay), the net delay is 27 months and 12 days, which is above the Jordan ceiling of 18 months and is presumptively unreasonable.
[23] The Crown may rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. As already stated, exceptional circumstances lie outside the Crown’s control if they are (i) reasonably unforeseen or reasonably unavoidable, and (ii) cannot be reasonably remedied once they arise: Jordan, para. 69. The parties are in agreement the impact of the COVID-19 global pandemic declared on March 11, 2020 by The World Health Organization is an exceptional discrete event as described in Jordan.
[24] Clearly, the sole issue remaining to be determined is how much time should be deducted from the net delay as an exceptional circumstance flowing from the COVID-19 pandemic. There is no doubt the global pandemic, which we continue to experience, bears all the hallmarks of an exceptional discrete event capable of justifying delay in the courts. The COVID-19 pandemic has seriously interrupted the ordinary court processes in the Old City Hall (“OCH”) courts, and courts at all levels throughout the Province, since March of 2020 and it continues to do so to the present time. Out in the community, the pandemic continues with new daily cases in Ontario hovering around the 300 to 450 range and daily COVID-19-related deaths continue. While the numbers of daily cases are, thankfully, decreasing in Toronto, I can take judicial notice the City remains, as it has throughout the pandemic, a COVID-19 hot spot.
[25] Turning to the period of COVID-19-related delay at issue in this case, the Applicant’s trial was initially scheduled to proceed on May 19, 2020. The Province’s emergency was declared by the Provincial government on March 17, 2020, two months before the trial date. As stated by the Court in R. v. Pinkowski, 2021 ONCJ 35, at paragraph 27, the time, in this case, from March 17 to May 19, 2020 “would have no bearing on pandemic-induced delay” because the Applicant was still waiting for his trial date to arrive when the pandemic struck and “It would be unrealistic to expect the court, Crown and trial coordinator to start taking steps to mitigate delay as of March 15th because it was unclear what immediate effect the pandemic might have on court operations.” Accordingly, the COVID-19 delay, here, starts on May 19, 2020.
[26] In terms of the end of the clock under the presumptive Jordan ceiling, the time period ends once the deliberations begin. The rights under s. 11(b) continue throughout the proceedings, but simply not under the Jordan timetable: R. v. K.G.K., 2020 SCC 7, at paragraph 23. For the reasons that follow, the COVID-19 delay, here, ends on October 5, 2021, and amounts to a period of 16 months and 18 days (505 days).
[27] I have to start by saying the record in this application is rather thin and limiting. From the prosecution, I was not provided with a copy of the directive(s) of the RSJP, referred to by the prosecution, that all matters scheduled from March 16, 2020 to January 22, 2021 be rescheduled. Similarly, and as not every courthouse in the Province followed a similar protocol, I was not provided documentary evidence when OCH court staff were directed to start scheduling POA trials rescheduled due to the pandemic. As well, I was provided with a single POA-related notice to counsel/paralegals and the public posted on the OCJ website and revised March 31, 2021. Similarly, only a single notice to the public, dated March 23, 2020, posted on the same website, was provided. It would have been very helpful to have a more complete timeline supported by related documentary evidence.
[28] The Applicant, through his agent, makes very strong assertions as outlined in paragraph 18, above, yet no evidence was provided supporting such claims, including going to the alleged total inaction on the part of court administration and prosecution to bring POA trial matters forward after July 6, 2020—including what such action might entail. I heard no evidence, apart from the existence of “phone audio capabilities” in the courtrooms, to support the allegation POA courts “could have continued to work and remained open.” In legal proceedings it is seldom, if ever, the case that assertions are made, and findings of fact necessarily follow. While I can rely on my experience at OCH, that only goes so far. As well, it is well-established it is highly improper for a trier-of-fact to do independent research, such as visiting the OCJ website in search of pronouncements and directives by the Chief Justice or others during the material time, in the course of post-trial or post-hearing deliberations as any relevant product of such research must be presented to the parties for a review and submissions. In the end, my decision must be made based on the evidence presented in court and the applicable jurisprudence, and not on sheer conjecture and/or speculation, or no evidence—which would amount to a serious error of law.
[29] 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 R. v. Gharibi, 2021 ONCJ 63 (“Gharibi”) (a case submitted by the Applicant) and R. v. Simmons, 2020 ONSC 7209 (“Simmons”) reference many cases deeming the entire time from the start of the impact of COVID-19 up to the new trial date as appropriately deducted from net delay and not solely the period of the court suspension.
[30] However, the fact of the pandemic per se does not provide a blanket immunity from the state’s obligations to meet the constitutional needs of its participants, including the s. 11(b) right to a trial within a reasonable time. It is incumbent upon the court to examine the specific circumstances of the Charter applicant’s case to assess whether the delay was in fact occasioned by a discrete event and to assess whether there were also other causes contributing to delay during that same period. As already stated, here, and given the fleeting record before me, I was not provided evidence of any such other causes.
[31] As is evident from paragraph 18 above, the crux of the Applicant’s position is the Provincial Offences court at OCH, “could have continued to work and remained open” as it had “phone audio capabilities” and, as such, should have accommodated the Applicant’s trial (the Applicant did not suggest an acceptable date in this regard). As well, or perhaps in the alternative, the Applicant submits court administration and the prosecution should have scheduled a new trial date on, or shortly after July 6, 2020, when the “criminal courts reopened utilizing phone audio and zoom hearings” in part as this “should have trickled down to the less difficult court stream” because “POA court matters are less complex than criminal court matters.” The Applicant adds, in his written materials, on July 6, 2020, the “criminal courts reopened utilizing phone audio and zoom hearings. Despite the provincial offences court already having phone audio capabilities, neither the court administration, nor the prosecution did anything to bring this matter forward.” The Applicant further maintains “It is factually incontrovertible that the Provincial Offences court could have continued to work and remained open. While criminal court [sic.] did not have such a mechanism, the mechanism already existed in POA proceedings.” I do not accept the Applicant’s submissions—not only because they are not grounded in any evidence provided, but also as they do not find support in the extensive and persuasive body of applicable jurisprudence.
[32] While I will not refer to all the caselaw submitted, and for the Applicant I was only provided with citations, I will start with R. v. Truong, 2020 ONCJ 613, cited by the Applicant. In Truong, the Court states at paragraph 75:
The COVID-19 pandemic has had an impact on every case that was before the Ontario Court of Justice during this period. Almost every trial and preliminary inquiry had to be rescheduled. At the same time, based on the expert advice of public health professionals, a wide range of health and safety measures were implemented at every courthouse in Ontario. This was an enormous undertaking. A number of factors had to be taken into account when decisions were made regarding court operations, including access to justice, public health and court resources. These decisions were informed by the input of stakeholders in the criminal justice system.
Especially applicable to the instant case, given the thrust of the Applicant’s arguments, the Court states, in part, at paragraph 77:
As Doherty J.A. stated in R. v. Allen (1996), 110 C.C.C. (3d) 331, 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.” As a result of the COVID-19 pandemic, courts were faced with a backlog of cases. Decisions had to be made about which cases should be prioritized.
[33] In Simmons, Justice Nakatsuru provided, at paragraphs 69-77, five compelling reasons why the entire period of delay between the court suspension and the new trial date should be deemed to be a discrete exceptional event to be subtracted from the net delay. These five reasons include: (i) the jurisprudence supports an approach to deduct the entire time impacted by COVID-19, (ii) the pandemic had far reaching impacts beyond the period impacted by the suspension of court proceedings, (iii) the effect of the discrete event of the pandemic does not end when courts are ready to resume normal court operations, (iv) the discrete event caused by the pandemic continues into the future and (v) courts should be reluctant to cast individual blame during a pandemic during extraordinary circumstances. Justice Nakatsuru’s reasoning is entirely persuasive and directly applicable to this case.
[34] Also relevant to this case, and especially so to the Applicant’s assertion “neither the court administration, nor the prosecution did anything to bring this matter forward” are the pronouncements of the Court in Gharibi—also cited by the Applicant. The Court states as follows:
[48] The impact of the COVID-19 pandemic on the criminal justice system is still yet to be fully determined and efforts to minimize both its impact on the system and the spread of the virus continues in a frequently changing landscape.
[49] New health screening procedures had to be put in place, the use of personal protective equipment was implemented, new cleaning protocols were required, plexi-glass protections had to be installed in every courtroom, safe air flow levels had to be measured and monitored daily, and building and room capacity levels were reduced. This is just to name a few changes that had to be implemented before courts could resume.
[50] In addition, the Court had to move from an ages-old system founded on in-person hearings and primarily reliant on paper, to a virtual, electronic, technology- dependent Court – in the colloquial – ‘over night’.
[51] As efficient as technology may appear, it is not always as secure and reliable as required to operate a criminal justice system. From security to sound quality to bandwidth to any number of other technology problems, operating virtually is to operate with frequent challenges, even when all parties are adept with the technology.
[52] Moreover, accommodations must be designed and implemented so that those with limited technological ability and access are not further marginalized in their participation in the criminal justice system.
[53] It is frequently said that ‘we are all in this together’, but the impact of this pandemic is not the same on all of us. It has exposed and amplified vulnerability and systemic inequity for vulnerable populations that interact with, and are subject to, the criminal justice system: homeless people; victims of violence, particularly women; people with mental challenges; those who struggle with substance addiction; and racialized people who bear the weight of racism, to name a few.
[54] These wide-spread changes are taking time. They have presented and continue to present challenges in terms of accessibility, consistency and availability to justice participants, particularly self represented accused persons, victims, witnesses, support workers of all types and support resources of all kinds.
[55] The efforts of Justice participants to mitigate the impact of COVID-19 on the operation of the criminal justice system in Ontario has been exceptional. The demands on professionals in the legal system deemed essential, and whose responsibility it is to ‘pivot”, in effect ‘create’ new ways to do just about everything is extraordinary.
[56] In the meantime, offences continue to be committed and people continue to be arrested. The backlog is piling up.
[35] The Court in Gharibi, a criminal matter, went on to deduct 10 months and 1 week for COVID-19-related delay.
[36] The Applicant also cited R. v. Greenidge, 2021 ONCJ 57. In my view that case is distinguishable. First, Greenidge is a criminal case out of Brampton—a different jurisdiction with particular COVID-19-related protocols. More significantly, in Greenidge and unlike in the present case, there was significant and well-documented pre-COVID-19 delay. 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”. In the Applicant’s case, there is a direct link between the pandemic and the delay in being able to set a new trial date.
[37] In R. v. Ottewell, 2020 ONCJ 623, a case out of Guelph, also cited by the Applicant, the circumstances also differ from the Applicant’s case as there was significant, and again well-documented, Crown disclosure-related delay, notwithstanding the pandemic, and preventing the matter from proceeding to trial. Had that not been the case, the Court stated, at page 32, in part:
I will state for greater clarity, I would be prepared to include the whole period from March 12, 2020 to January 2021 as a discrete event if the matter had been completely ready to have a trial date set and only the COVID-19 pandemic court closure prevented setting trial dates.
[38] I will address some of the Applicant’s other assertions. While, generally speaking, POA matters are less complex than criminal matters that is not always the case and it is not uncommon for POA trials to stretch over several days due to the volume of documentary evidence and number of witnesses; we need only consider cases involving careless driving causing bodily harm or death, the Occupational Health and Safety Act and the Environmental Protection Act. Moreover, even if the Applicant’s case were to be accorded some priority in rescheduling due to it not being complex, I cannot see how by simply looking at the charge court staff or the prosecution could make a complexity assessment and determination and it is unreasonable, in light of the voluminous backlog of cases and other considerations, to expect court staff or prosecution to audit the entirety of the backlog purging non-complex cases for earlier re-scheduled trial dates. Needless to say, this would also be unfair to the parties involved in more complex cases, adjourned earlier due to the pandemic, and waiting in the queue. As well, it is reasonable to assume it would be entirely out of the control of the prosecution and court administration to dictate when trials should be re-scheduled in these extraordinary times—especially as scheduling priorities were being set by the Chief Justice of the OCJ. While no evidence (or submissions) was presented in this regard, it is reasonable to assume the Applicant’s case, like other cases, was likely re-scheduled based on the initial trial date—a first-adjourned, first re-scheduled type model.
[39] As stated in paragraph 4 above, beginning September 28, 2020, the Ontario Court of Justice began to hear non-trial POA proceedings (e.g., guilty pleas, withdrawals, judgment delivery, first appearances, and adjournments) remotely by audio conferencing. Beginning October 19, 2020, the Ontario Court of Justice began to hear closing submissions of trials (already in progress), sentencing submissions and imposing sentences remotely by audio conferencing subject to the direction of the Justice of the Peace assigned to the matter. While no evidence was provided when backlog cases like the within matter began to be rescheduled, it is likely such began after mid-October 2020 and even into 2021. As already stated, the new notice of trial in this matter was issued on August 19, 2021.
[40] Given the voluminous amount of non-trial matters that had to be scheduled in September and October 2020 and the sheer volume of cases like the Applicant’s in the backlog awaiting rescheduling, I cannot see, and indeed no evidence or suggestions were offered, how the prosecution or the court had the ability to mitigate any of the delay to October 5, 2021. This is especially so as the rescheduling of matters such as this had to adhere to the directives and notices referred to in paragraph 4 above and the reality of the immense task facing court administration as acknowledged by the Court in Gharibi and outlined in paragraph 34 above. Based on the evidence before me, I am satisfied that the prosecution and court administration took reasonable steps to move this case forward after normal operations of the Court were suspended back in March 2019 due to the COVID-19 pandemic. While the Applicant alleges inaction by the prosecution and court administration “to bring this matter forward”, this submission unduly minimizes the steps taken by the justice system to mitigate a systemwide delay and I agree with Nakatsuru J.’s conclusion in Simmons, at paragraph 63:
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. [Emphasis added]
[41] It is my view on this record that the court administration and prosecution could not have reasonably done more during this period to mitigate delay—this is especially so as the Applicant has provided no evidentiary basis to support the inaction alleged and/or that a different and more efficient re-opening schedule could have or should have been devised and followed amid a public health crisis which created such a vast and regenerating backlog of cases. Therefore, I find on the facts of this case, the evidence presented and the recent jurisprudence on this very issue, the delay from the original trial date of May 19, 2020 to the new trial date October 5, 2021 was as a result of COVID-19 pandemic re-scheduling and should not be visited upon the prosecution. The said period is 16 months and 18 days, which constitutes an exceptional discreet circumstance and shall be deducted from the net delay.
[42] As said, the total and net delay in this case, from the date of the HTA charge to the anticipated end of the trial date is a period of 27 months and 12 days (834 days). Upon deducting 16 months and 18 days as delay caused by the exceptional discrete event, the remaining delay is approximately 11 months and is well below the presumptive 18-month ceiling as set out in Jordan.
Should the matter be stayed even if the total delay is below the presumptive ceiling?
[43] Jordan provides that in cases such as this, where the net delay is under the presumptive ceiling, the onus shifts to the Applicant to show that: i) he took meaningful steps to demonstrate a sustained effort to expedite the proceedings and, ii) that the case took markedly longer than it should have.
[44] In Jordan, the Supreme Court made clear that stays beneath the ceiling are expected to be rare and limited to clear cases: Jordan at paras. 48 and 82-83. Jordan mandates that determining whether the time taken has been markedly longer than was reasonably required is not a precise calculation and requires stepping back from the minutiae and taking a bird’s eye approach.
[45] Here, the Applicant, through his agent, did not provide any evidence or submissions he took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it should have to get to the May 19, 2020 trial date. In my view, the only reason this trial was not completed in May 2020, and well under the Jordan ceiling, was the onset of a global pandemic in March 2020.
ORDER:
[46] For the reasons set out above, the Applicant’s motion is dismissed as his s. 11(b) Charter rights were not violated.
Released: By email to the parties on October 21, 2021. Signed: Justice of the Peace Roger Rodrigues