ONTARIO COURT OF JUSTICE DATE: 2021 10 26

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ZOSIA RUCHLEWICZ

Before Justice A. A. Ghosh

Heard on September 16 and October 26, 2021

Reasons for Judgment released for October 26, 2021

B. Juriansz ............................................................................. counsel for the Crown Attorney L. Kinahan ........................................................................................ counsel for the Applicant

GHOSH J.:

Overview

[1] Ms. Zosia Ruchlewicz stands charged with the offences of impaired driving and driving with “80 plus”, contrary to s.320.14(1) (a) and (b) of The Criminal Code. She has applied pursuant to s.11(b) of the Charter for a ruling that her right to a trial within a reasonable time has been violated and seeks the remedy of a stay of proceedings. The total delay is approximately 26 months. Counsel have made competing submissions regarding the impact of disclosure issues and the COVID-19 public health crisis on the assessment of reasonable delay.

[2] This application was heard and denied with summary reasons on the first day of the 2-day trial. An uncontested Crown case was then presented. These are my reasons in denying the application for a stay of proceedings, pursuant to s.24(1) of the Charter.

Summary of the Procedural History

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

Date:	Particulars:	Delay Attribution
Jul. 24, ‘19	Information laid 2 weeks before first court date	To ceiling (14 days)
Aug. 7, ‘19	First appearance; Initial disclosure provided;	To ceiling (36 days)
Sep. 11, ‘19	Adjourn; Delay waived to next date;	Defence (7 days)
Sep. 17, ‘19	Adjourn; disclosure review;	To ceiling (29 days)
Oct. 15, ‘19	Adjourn; further disclosure given; difficulties accessing key videos; pretrial deferred; Crown provides video “guideline” before Nov. 26;	To ceiling (43 days)
Nov. 26, ‘19	Adjourn; difficulties re: videos persist; defence agrees to order 2nd copy if issues continue;	To ceiling (43 days)
Jan. 7, ‘20	Adjourn; difficulties re: videos persist; Assigned Crown soon provides own handwritten guide to opening videos;	To ceiling (43 days)
Feb. 18, ‘20	Adjourn; less crucial video accessed; video capturing police and applicant not accessed;	To ceiling (22 days)
Mar. 10, ‘20	Adjourned to April 14; counsel had just rewritten to the Crown updating on difficulties with videos	To ceiling (6 days)
Mar. 16, ‘20	COVID-19: pause of scheduling or hearings for non-urgent, out-of-custody matters	Deduct Discrete Event to July 6th
Apr. 10 – Oct. 6, ‘20	COVID-19 – presumptive adjournments	Deduct Discrete Event to July 6th
Jul. 6, ‘20	Incremental reopening: Applicant ineligible	(Contested)
Aug.12, ‘20	Notice: eligibility to set trial begins on Sept. 28	(Contested)
Sep. 28, ‘20	Applicant eligible to set trial date	(Contested)
Oct. 27, ‘20	Trial scheduling form submitted by Applicant	(Contested)
Dec. 17, ‘20	Set-date; Delay waived – medical appointment	Defence (21 days)
Jan. 7, ‘21	Trial date set: May 31 and June 1, ‘21	To ceiling (145 days)
Jan. 27, ‘21	Letter to Crown: video disclosure issues	To ceiling
May 13, ‘21	Contested adjournment application: Granted	To ceiling
May 31, ‘21	Disclosure issue apparently resolved	To ceiling (17 days)
June 17, ‘21	New trial set: Sept. 16, 17; Disclosure resolved	To ceiling (92 days)
Sep. 17, ‘21	End of trial; Delay application denied on 16th	End

Analysis

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

[4] In R. v. Jordan, the Supreme Court set out the 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.”

[5] Firstly, the “net delay” must be calculated by subtracting defence delay from total delay (which spans from charge to the end of trial). If the net delay exceeds the ceiling, it is presumptively unreasonable unless the Crown establishes that exceptional circumstances (i.e. 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

[6] Any delay caused by the defence must first be subtracted from the total delay. The total delay in this case was 787days (about 26 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.

[7] It is agreed that defence delay should be calculated as 38 days. The net delay after accounting for defence delay is 749 days (or about 25 months).

The Disclosure Issue and its Impact on the Time to Trial:

[8] Challenges in accessing disclosed videos animate the delay analysis in this matter. This is not a typical non-disclosure case. For the first 8 months of the prosecution, the matter was repeatedly adjourned as both sides discussed the inability of defence counsel to access disclosed videos. The Crown provided at least two sets of instructions that failed to assist the applicant.

[9] I find the last communications to the Crown office during this initial period were a source of confusion. There was consequent inaction from both sides for almost a year, bridged by the COVID-19 public health crisis. This all requires closer examination.

i. The First 8 months before COVID-19 – Difficulties Accessing Videos:

[10] The Crown and the justice system are properly accountable for the first several months spent sorting out disclosure. This time counts towards the presumptive ceiling. On August 7th, 2019, the applicant on her first appearance received initial disclosure, including videos. On September 17th, the matter was adjourned for a Crown pre-trial to be conducted.

[11] Before the pre-trial, counsel attempted to review the disclosure. Counsel was unable to open the breath room video and only received the in-cruiser camera (ICC) recording that captured an officer apparently speaking with witnesses. The key ICC recording of any police interaction with Ms. Ruchlewicz was missing and counsel notified the Crown in writing.

[12] On October 15th, 2019, an additional video was received and the pre-trial had not been held given the difficulties in opening the videos. The matter was adjourned to November 26th, 2019. In the intervening time, the Crown provided the applicant with a guideline to assist in opening the videos that had been disclosed in a relatively newer format. Counsel was still unable to open the videos.

[13] On the November 26th court appearance, Crown counsel specifically asked the applicant’s counsel to order a second copy of the video disclosure if the difficulties continued. Counsel agreed that he would. None of the court or correspondence record leading up to the declaration of the crisis on March 16th, 2020 supports that a second copy of disclosure was ordered.

[14] The matter was adjourned to January 7th, 2020. The videos still had not been viewed by counsel, and the assigned Crown determined to provide an additional instruction sheet to assist. The matter was remanded to February 18th, 2020. Even with the assistance of this second set of instructions, counsel was unable to view the key video capturing his client.

[15] Counsel wrote the Crown again about the video. The matter was remanded to March 10th, 2020. The video issue had not resolved, and the applicant was remanded again until April 21st, 2020. Of course, the COVID-19 public health crisis intervened on March 16th, 2020.

[16] The last disclosure correspondence before the pandemic took hold could only have caused confusion and uncertainty. On February 18th, 2020, the applicant’s counsel wrote the Crown disclosure coordinator at the request of the assigned Crown. He inadvertently referenced a completely different defendant in providing the following updated disclosure request:

“Further to the disclosure received previously, I have written to” (the assigned Crown) “this morning about the video but was advised to write your office as well. In reviewing the DVD, I am able to access Car 173 but unable to access the K9 unit video and audio and that is the unit that made the arrest. When I say I cannot access it, I am able to get the template to come up but there is no content. Thank you for your attention to this matter.”

[17] The following day, counsel sent a letter correcting the name but failed to repeat the disclosure inquiry: “Further to my letter of yesterday, I mistakenly forgot to change the name on the letter and it was sent under the name of “ (Defendant X) “which is a case that is already resolved. I have corrected the name in this correspondence and apologize for the mistake. Thank you for your attention to this matter.”

[18] Proximate to this correspondence, the applicant’s counsel had emailed the assigned Crown on February 18th. The applicant was willing to set a trial date with the implicit understanding that disclosure was satisfied, unless otherwise communicated:

“Hey Rob; We have not had a pretrial on this matter. I was going to set a trial date on this because it is getting stale but just realized that we have not had a pretrial as I was waiting for the instructions on opening the tape (which you gave me in January). I am thinking the usual for timing – 2 days. Ss. 8 and 10(b)….. assuming the tape works (I haven’t had a chance to look due to other commitments) disclosure now seems to be complete. Let me know if you agree and I will set it today. Leo”.

[19] I accept the applicant at this stage helpfully attempted to move the matter forward before key disclosure had been received and reviewed. R. v. Kovacs-Tatar, 2004 ONCA 42923; R. v. N.N.M., 2006 ONCA 14957 However, I find this combination of communications could only have caused confusion regarding whether the Crown should have proactively responded or awaited further notice from the defence. It is unsurprising that the Crown failed to respond without an updated disclosure inquiry.

ii. COVID-19 and 2020 – Defence Silence regarding Disclosure:

[20] Once the public health crisis was declared, the record supports that defence counsel did not communicate with the Crown about the videos again until after trial dates were set. This was almost a year later in late January of 2021. The communication involved a single email to a generic Crown account. While the Crown response to this email was not prompt, it appeared from the submissions made during the adjournment application that the disclosure issues were going to be resolved before the trial.

[21] When the Crown then opposed the successful defence application to adjourn the trial, two weeks before the vacated trial were potentially available to resolve the issues. As the applicant’s counsel observed, once the adjournment was granted, the video issue was quickly and cooperatively resolved.

Exceptional Circumstances – COVID-19 Crisis as a Discrete Event

i. COVID-19 and delay – Preliminary findings and observations:

[22] 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.

[23] 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 during the crisis and between the COVID-adjournment and the anticipated end of the trial must be deducted as a result. I adopt my reasoning from rulings with somewhat analogous timeframes and analyses. R. v. Lieu, [2021] O.J. No. 4094; R. v. Yang, [2021] O.J. No. 4608

[24] 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, paragraph 75 After the contested adjournment application was granted, this matter received heightened scheduling priority. It was not warranted beforehand.

[25] As observed, disclosure related discussions informed the delay between the arrest in July of 2019 and the declaration of the public health crisis in March of 2020. But for the seven days waived by the defence during this period, the Crown properly conceded that all this time must count against the system and towards the ceiling. The Crown also conceded the delay caused by the contested and disclosure-informed adjournment may count towards the ceiling.

[26] These attributions in favour of the applicant cannot be leveraged to preclude appropriate deduction for the delay caused by the utterly unforeseen and unavoidable public health crisis. The Crown is already accountable for any disclosure issues from the intake period and the adjourned trial within the bright-line rigours of the Jordan framework.

[27] It may be prudent to at least consider whether the trial could have been set and completed before the crisis was declared. In the absence of evidence, I cannot speculate on that prospect except to observe that the applicant’s trial theoretically could have completed before March 16th if trial dates were set within the first few court appearances in the latter half of 2019. That did not occur, due in part to the difficulties in accessing Crown disclosure. It is difficult to quantify this consideration. I find that the Jordan framework does not support that I should. I intend to be generous in the applicant’s favour in determining the time to be deducted due to the crisis.

[28] I find that the system instituted procedures to mitigate delay from the crisis. As I have observed before, the pandemic protocols themselves were mitigating. I will explain my finding that there were no reasonable bases or mechanisms by which to reprioritize the applicant’s trial. The government had declared a state of emergency and imposed lockdowns and significant restrictions impacting every aspect of society. The courts were not immune from this. The applicant reasonably had to wait to set and have her trial.

ii. COVID-19 – July 6th was Not the End of the Delay caused by the Crisis:

[29] The applicant submits or implies that her trial should have been given priority during the formative stages of the pandemic. This requires discussion. The defence submitted that only the period between March 16th and July 6th, 2020 should be deducted due to the discrete event of the COVID-19 crisis.

[30] As I have observed before, July 6th only signalled the start of the incremental reopening of our court for non-urgent, out-of-custody hearings in a limited number of courtrooms in selected courthouses. This included a few courtrooms in Newmarket. The applicant was not eligible to even set a trial date in the summer of 2020.

[31] From July 6th onward, Ms. Ruchlewicz was subject to the presumptive adjournment protocol awaiting direction from the court. The court direction that guided the July 6th incremental reopening properly did not permit the Crown or the system to reprioritize the applicant’s trial to be heard in 2020.

[32] “No single case is an island”. There already was an existing inventory of previously scheduled trials that would be heard from July 6th and onwards. It would have been unreasonable and unfeasible to have stacked such non-urgent hearings on top of this slate of trials. Other courts had not even reopened at all.

[33] The notion that non-urgent, out-of-custody trials should have been prioritized above existing scheduled trials and other priority hearings ignores the realities of the summer of 2020 and the continuing effects of the crisis on the backlog. The delay during the pandemic until the applicant was permitted to schedule her trial, at a minimum, must be deducted due to the discrete event of the COVID-19 crisis.

iii. COVID-19 Scheduling Delay – September 28 to December 17, 2020:

[34] On August 12th, 2020, a Notice to the Profession directed that “scheduling will begin no later than” September 28th, 2020 for the applicant’s trial. The notice implicitly acknowledged the prospective impact of the crisis on scheduling by allowing for some breathing room once scheduling eligibility arose. For example, a scheduling “window” was not imposed.

[35] While the parties were notified on August 12th that scheduling could begin as early as September 28th, the trial scheduling form was submitted on October 27th. At a minimum, I find that the period between March 16 to October 27, 2020 must be deducted as being caused by the discrete event of the crisis. This trial could not be set or heard during that time. There were no reasonable means by which to mitigate that circumstance.

[36] The public health crisis persisted throughout the scheduling process to the end of the anticipated trial, as did its obvious and subtler effects on court processes and scheduling. The litigants were prepared on the surface to set the trial during the early stage of the crisis. However, I note again that the applicant’s diligent pre-pandemic efforts to access the disclosed videos (that informed almost 9 months of intake delay), appeared to have entirely paused during the first 10 months of the COVID-19 discrete event.

[37] This delay of over two months between readiness and setting of the trial was informed by the pandemic pressures on the trial coordinator at the time. Many in our court, including myself, have observed that the public health crisis directly impacted the offices of the trial coordinator and the related challenges and delays in setting trial dates.

[38] Unlike commonly encountered discrete events, the COVID-19 crisis affected virtually every case in the system. There was a significant and regenerating backlog that informed scheduling. That finding does not require evidence. I note parenthetically that, for the first time, the offices of the trial coordinator had been additionally assigned the complex and time-consuming daily task of scheduling in-custody hearings and appearances with all engaged detention centres, counsel, and police agencies.

[39] It cannot be disputed that prior to the crisis, trial dates in our jurisdiction could be set through the trial coordinator on the very day the litigants were prepared to do so. This was no longer the case during this phase of the crisis. The delay in scheduling was undoubtedly caused by the discrete event of the pandemic. The applicant’s counsel almost conceded as much during his submissions in support of the adjournment of trial. I find the 51 days between the submission of the scheduling form and the system’s readiness to set the trial was caused by the discrete event of the pandemic.

[40] It is clear to me that the period between March 16th (crisis declared) to December 17th, 2020 (when all were ready to set the trial), a period of 276 days (or 9 months), must be deducted due to discrete event of the public health crisis. The defence waived delay between December 17th and the date the trial was ultimately set on January 7th, 2021.

iv. COVID-19 – Trial-Set-Date to End of Trial Counts Towards Ceiling

[41] I mentioned earlier that I would be generous in the applicant’s favour in determining the deduction from this discrete event. Firstly, the Crown fairly conceded that all the remaining time after the set-date should be attributed towards the ceiling, but for the identified periods of defence delay. I accept that concession, although I note that some courts have deducted all the time following the declaration of the public health crisis. R. v. Coates, [2021] O.J. No. 2915, paras. 60-61; R. v. Koustov, [2021], O.J. No. 191, paras. 33-35 That could have included the delay between setting the date and the first scheduled trial. As we near the end of 2021, the pandemic and its effects on our court operations persist.

[42] Secondly, the Crown concession absorbing the delay after the “disclosure-adjourned” trial date was also generous. While the applicant’s trial could not have reasonably been scheduled or heard during the 2020 phase of the crisis, the difficulties in accessing the videos should have been resolved during this period. This does not fall solely to the Crown. Pre-trial and disclosure processes continued throughout that time. I have discussed the potential for confusion in the correspondence sent by the applicant’s counsel just before the crisis began.

[43] It was reasonable to expect that the defence would continue to attempt to access the disclosed videos throughout this early period of the pandemic. Frankly, it was all the defence could reasonably accomplish during those 10 months. Instead, the first correspondence regarding the videos during the crisis was sent on January 27th, 2021, three weeks after the trial had been set. Even then the defence did not request a second copy of the videos, despite agreeing to do so in court on November 26th, 2019.

[44] Despite regular initial correspondence directly with the assigned Crown attorney, there is no evidence of any such further disclosure communication between March 16, 2020 and the contested adjournment application heard on May 13, 2021 (10 months). As the court record confirmed, the disclosure issue was resolved soon after the adjournment was granted. This was all apparently easily resolved.

[45] None of these observations support that the identified non-COVID, disclosure delay constitutes “defence delay”. While I find the defence contributed to delay and the adjournment of the trial through its inaction during the relevant period, the defence was not “solely” responsible. The only defence delay are those brief periods agreed to.

[46] However, in assessing the reasonableness and scope of the deductions attributed to the discrete event of COVID-19, these concerns support that unduly enhanced delay attribution to the justice system is not warranted on the reasonableness standard. The identified disclosure delay counts towards the ceiling and I find that nothing more is appropriate in applying the facts to the delay framework.

Remaining delay calculation:

[47] The net delay (total minus defence delay) is 749 days (or almost 25 months). Deducting 276 days (or 9 months) for the discrete event of the pandemic, the remaining delay is 474 days (or almost 16 months). This is below the ceiling and presumptively reasonable.

Remaining Delay Below the Presumptive Ceiling – Reasonableness

[48] The remaining delay of nearly 16 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.

[49] In my summary ruling, I was overly generous in finding the defence took meaningful steps to show a sustained effort to expedite the matter. It did not, particularly once the crisis took root. In any event, I found in favour of the applicant. I will observe the confines of that initial finding, but the contrary facts noted earlier support that the matter did not take markedly longer than it reasonably should have. This was not a “clear case” warranting a below-ceiling violation and a stay of proceedings.

[50] Despite leaving the impression that the disclosure concern may have resolved, the defence did little to nothing during key months of the crisis to notify the Crown that it continued to have disclosure issues. While the Crown certainly could have done more, a modicum of further cooperation would have resolved the disclosure issue and preserved the initial trial dates.

[51] This was borne out by the rectification of the issue within days of the trial adjournment. The issue was floating over the proceedings for almost two years. Again, the responsibility for this is not borne solely by the Crown. Additionally, had the crisis not intervened, this trial could comfortably have completed under the ceiling with the identified deductions applied.

Prejudice and the delay framework

[52] Evidence and submissions were advanced supporting that the applicant has experienced prejudice by the delay in this case. The Supreme Court in Jordan clarified that “although prejudice no longer plays an explicit role in the s.11(b) analysis, it informs the setting of the presumptive ceiling.” Jordan, para. 54

[53] The interest of the defendant and the public “in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured.” Jordan, para. 34 The applicant has struggled after being charged. She is a Registered Practical Nurse working on the frontlines of the pandemic in gruelling, intense, and tragic circumstances. In her affidavit, she reasonably notes that while her work during this time has caused her a great deal of stress and anguish, the criminal charges have compounded this. I accept that.

[54] “Instead of being an express analytical factor, the concept of prejudice underpins the entire framework.” Jordan, para. 109 Inferred prejudice is embedded within the presumptive ceiling and the related analyses. I can only honour her struggles by adverting to them and acknowledging their true impact on the analysis.

Conclusion:

[55] I have found that 9 of the 25 months of net delay needed to be deducted due to the discrete event of the COVID-19 crisis. The remaining delay was well below the 18-month presumptive ceiling for unreasonableness. This case did not take markedly longer than it reasonably should have. I find no violation of the applicant’s right to be tried within a reasonable time and the application is denied. My thanks to counsel.

Released: October 26, 2021 Signed: Justice A. A. Ghosh