Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 09 02

BETWEEN: HER MAJESTY THE QUEEN — AND — YI SHUAI YANG

Before: Justice A. A. Ghosh

Heard on: August 12, 2021 Reasons for Judgment released on: September 2, 2021

Counsel: G. Elder, for the Crown Attorney P. Locke, for the Applicant, Mr. Yang

Endorsement

GHOSH J.:

Overview

[1] Mr. Yi Shuai Yang is scheduled for trial for the offence of “80 plus”, contrary to s.320.14(1)(b) of The Criminal Code. 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. The total delay is almost 27 months. Some of the delay in this case has been informed by the COVID-19 public health crisis.

Summary of the Procedural History

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

• May 22, 2019: Swearing of the Information
• July 14, 2019: Trial date set for March 26 and 27, 2020
• March 16, 2020: COVID-19 – Temporary cessation of non-urgent, out-of-custody hearings
• March 26 and 27, 2020: Start/end dates of COVID-19-adjourned trial
• July 6, 2020: Resumption of out-of-custody hearings
• August 14, 2020: Request for Trial form submitted
• August 17, 2020: Trial eligible to be reset
• August 21, 2020: Mandatory “COVID-JPT”
• October 22, 2020: Remand for Trial Coordinator to respond to request to set trial
• November 4, 2020: 2nd submission of trial setting form
• December 17, 2020: Remand for Trial Coordinator to respond to request to set trial
• January 7, 2021: Trial #2 set for June 7 and 8, 2021
• June 7 and 8, 2021: Trial date #2 adjourned (not reached)
• June 15, 2021: Trial #3 set for September 9 and 10, 2021
• September 9 and 10, 2021: Trial #3 – anticipated end of proceeding

Analysis

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

[3] In R. v. Jordan, 2016 SCC 27, 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.

Firstly, the “net delay” must be calculated by subtracting defence delay from total delay (charge to trial’s end). If the net delay exceeds the ceiling, it is presumptively unreasonable unless the Crown establishes that exceptional circumstances (case-complexity or a discrete event) caused the delay to be under the ceiling. The delay deducted due to the exceptional circumstance is the “remaining delay” to be compared against the presumptive ceiling: R. v. Coulter, 2016 ONCA 704.

Net Delay – Defence Delay Deducted from Total Delay

[4] Any delay caused by the defence must first be subtracted from the total delay. The total delay in this case was 843 days (almost 28 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.

[5] The applicant had not waived delay at any stage. It is not disputed that defence delay should be calculated as 47 days. The net delay after accounting for defence delay is 793 days (or about 26 months).

Exceptional Circumstances – COVID-19 Crisis as a Discrete Event

[6] 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.

[7] 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 COVID-adjournment and the anticipated end of the trial must be deducted as a result. I adopt my reasoning from a recent COVID-informed delay analysis in R. v. Lieu, 2021 ONCJ 409, as the procedural histories are somewhat comparable.

[8] 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. (R. v. Jordan, at paragraph 75)

[9] The first scheduled trial would have resulted in the completion of the trial within about 10 months. Ten days before trial, 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 system instituted procedures to mitigate delay from the crisis. As I had observed before, the pandemic protocols themselves were mitigating. Also, there was a mandated COVID-pretrial. Although July 6th, 2020, marked the limited resumption of out-of-custody hearings, Mr. Yang’s trial was not eligible to be heard. There was an existing inventory of previously scheduled trials that would be heard.

[11] The applicant was still in the presumptive remand stream awaiting August 17th when his matter was eligible to be rescheduled. The Crown could not have reprioritized this matter to be heard that summer, as the pandemic protocols properly did not permit discretionary reprioritization.

[12] The time between the end of the COVID-adjourned trial on March 27th and August 17th, 2020 at a minimum, must be deducted as being caused by the discrete event of the public health crisis. That is 143 days, or 4 months and 3 weeks. Another year would follow before the trial would be scheduled to end.

The delay between COVID-scheduling eligibility and the setting of the new date

[13] The court’s August 12th “Notice to the Profession” directed that “scheduling will begin no later than” August 17th for the applicant’s trial. The applicant promptly filed a trial scheduling request two days later and did so a second time in November when no response came. The trial would ultimately be set on January 7th, 2021. That is also a delay of 143 days, or 4 months and 3 weeks. This is a long time to set a trial date and requires discussion.

[14] Such a lengthy delay between trial readiness and trial confirmation does not seem right, but I must apply the delay framework. In Lieu, I discussed the pressures that the crisis put on the system and especially on the offices of the trial coordinator. Here, I will take note of commonly known local practices.

[15] Prior to the crisis, as in most jurisdictions, defence counsel in our courthouse could obtain and set trial dates the very day they were ready to do so. A review of the court record in our practice court on any given day prior to the crisis will confirm this. That was suddenly no longer the case after the pandemic caused relevant court operations to pause and then resume. This supports that this delay was directly and only caused by the discrete event of the crisis and should be deducted. However, should evidence have been led on this issue, for discussion I will err in the applicant’s favour and not deduct the 143 days required to set the trial date.

The delay between setting the new date and the trial itself

[16] The 152 days between the January 7th set date and the expected end of trial on June 8th of this year must be deducted as being caused by the crisis. The January set-date only arose due to the adjournment of the trial caused by the discrete event. The delay until the next trial date should be deducted.

[17] Once the trial was able to be set down, it did not follow that the system was expected to offer trial dates beginning soon thereafter. In any event, 5 months from set-date to trial for a 2-day hearing is a relatively short turnaround in our jurisdiction.

[18] As is frequently observed, “no single case is an island”. Almost all trials in the province were impacted by the discrete event of the crisis. A backlog resulted. I find that this delay must be deducted, having been caused by the discrete event of the crisis.

The delay between the second and third scheduled trial dates – “Not reached”

[19] The Crown submits I should also deduct the time between the second and third trial dates when the trial was “not reached”. This was 94 days between June 8th and September 10th of this year when the trial is expected to end. I do not find this delay can easily be attributed to the discrete event of the crisis. Well before June of this year, we had essentially resumed somewhat normal court operations.

[20] I appreciate the layered impact of the crisis-informed backlog and how it can theoretically impact trial prioritization on a given day. However, I cannot speculate. In the absence of evidence, this delay will not be deducted due to the crisis. The 94 days will count towards the ceiling.

Remaining delay calculation

[21] The net delay (total minus defence delay) is 793 days. Two 5-month periods totalling 295 days will be deducted as being caused by the discrete event of the pandemic. The remaining delay is 498 days (or 16.5 months). This is below the ceiling and presumptively reasonable.

Remaining Delay Below the Presumptive Ceiling – Reasonableness

[22] 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.

[23] Considering the constraints the pandemic protocols placed on the defence, I find the applicant did everything reasonably possible to expedite his trial. The defence filed the trial scheduling form within two days of being permitted to do so. Months later, they filed it again.

[24] The case, however, has not taken markedly longer than it should have. Again, the trial would have completed approximately 10 months after the arrest had the public health crisis not been declared two weeks before the adjourned trial date. The delay that followed was unfortunate but much of it was necessary and, overall, it was reasonable in the circumstances.

[25] The application is denied. The trial dates stand. My thanks to counsel.

Released: September 2nd, 2021 Signed: Justice A. A. Ghosh