Date: September 21, 2021 Information No.:

• 0211-998-20-0473
• 0211-998-20-2449
• 0211-998-20-Y116

ONTARIO COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown

-and-

M. S. Accused

REASONS FOR JUDGMENT

Heard: September 8, 2021

Counsel: A. Burns, Counsel on behalf of the Crown D. Paquette, Counsel on behalf of M. S.

Baker, J.

[1] M.S. was charged on January 5, 2020 with historical sexual offences. His trial is scheduled for October 20, 2021. M.S. brings this Application asserting that his rights pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms have been infringed insofar as the expected date of completion of trial exceeds the time limits established by the Supreme Court of Canada in R. v. Jordan. This is because some 21.8 months will have elapsed by the anticipated end of trial.

[2] The defense says there is no defense delay to subtract and no delay attributable to exceptional circumstances to deduct. The delay thus exceeds the presumptive ceiling and accordingly M. S. is entitled to a stay of proceedings.

[3] The Crown says that; a) 21 days should be deducted as defense delay and b) the public health emergency of COVID-19 constitutes an exceptional circumstance that must be considered in assessing the delay.

[4] The time chart for this matter is set out below:

Time Chart

• January 5, 2020: Arrest Date
• February 21, 2020: First Appearance
• March 20, 2020: Presumptive COVID adjournment
• May 29, 2020: Presumptive COVID adjournment
• August 7, 2020: Adjourn 2 weeks to continue to move matter forward. Disclosure received August 6.
  • Summons issued for further charges on August 14, 2020 for a court appearance on August 21, 2020
• August 21, 2020: Adjourn all matters (including new information) to September 18
• September 18, 2020: Adjourn to October 9 to schedule a JPT
• October 9, 2020: Set JPT for November 5 and adjourn matter to follow
• November 5, 2020: Judicial Pre-Trial
• November 13, 2020: Adjourn matter to follow further JPT of December 10
• December 10, 2020: 2nd Judicial Pre-Trial
• December 17, 2020: Submit trial request form
• December 18, 2020: Adjourn to January 8 to get trial dates
• January 8, 2021: Adjourn to January 15 to get trial dates
• January 14, 2021: Trial Scheduling conference
• January 15, 2021: Set trial dates on the record and adjourn to first day of trial
• May 13, 2021: Original trial date. Matter adjourned.
• September 8, 2021: 11(b) Application
• October 20, 2021: Scheduled Trial date

Issue #1: Is there defense delay that must be deducted from the total time?

[5] The Crown points to the appearance of September 18, 2020 and says that the adjournment on that date, to secure dates for judicial pretrial, constitutes defense delay. On that date, defense advised that the applicant was prepared to set a judicial pretrial and asked if dates were available in court. The court advised that a date for judicial pretrial would need to be obtained from the Trial Coordinator. The matter was thereupon adjourned to October 9, 2020 for that purpose.

[6] The Crown says the defense’s a lack of knowledge of local practice requiring counsel to obtain judicial pretrial dates in advance of the court date was the proximate cause for that delay. Accordingly, the intervening 21 days should be deducted from the overall delay.

[7] Interestingly, on the follow up court appearance, defense again requested a judicial pretrial date from the court, and that date was secured. It would seem then that there was no firm “local practice” that required counsel to obtain a date for judicial pretrial in advance.

[8] As noted in R. v. Cody, 2017 SCC 31, “defense delay” is not a catch all phrase intended to capture any and all delay caused by the defense; Rather it is a term of art that recognizes that making full answer and defense requires time to prepare and present a case. Accordingly, the presumptive ceiling of 18 months for matters in the Ontario Court of Justice have already accounted for the procedural requirements of an accused person’s case.

[9] A judicial pretrial was a procedural requirement for the matter to proceed to trial. Defense counsel had already indicated that a trial would be required as of August 21, 2020. The request to schedule the judicial pretrial then would fall squarely within “defense actions legitimately taken to respond to the charges” and it would thus fall outside the ambit of “defense delay”.

Issue #2: The existence of exceptional circumstances

[10] The Crown says that exceptional circumstances arise in relation to two distinct periods. The first of these is said to be the period of time during which the matter was subject to presumptive adjournment, as prescribed by directives of the Ontario Court of Justice. The second of these is the period of time between the first scheduled date of trial on May 13, 2020 and the subsequently scheduled trial date of October 20, 2021.

[11] There is no doubt that the COVID-19 pandemic is a discrete exceptional circumstance, see R. v. Troung, 2020 ONCJ 613, O.J. No 5724. The question here however is whether this discrete exceptional circumstance caused or contributed to the delay.

a) Does the period over which the matter was subject to presumptive adjournment because of the pandemic restrictions constitute delay due to “exceptional circumstances”?

[12] In answering this question, the court must consider whether the presumptive delays actually caused or contributed in some meaningful way to the delay. In determining this, the court must consider whether the trial would have been scheduled earlier but for the presumptive adjournments or whether the delay in scheduling trial was the result of another factor: in particular, dilatory production of disclosure.

[13] It is not disputed that a disclosure request was sent to the Crown’s office by fax on January 15, 2021, or within ten days of the accused being charged.

[14] At the first appearance of the matter on February 21, 2020, defense inquired about the availability of the requested disclosure, saying, “I wonder if my friend can indicate if there’s disclosure available upstairs”. The Crown responded, “No, I do not see disclosure being available at this time.”

[15] Defense then proposed a return date of March 20, 2020, saying, “Hopefully disclosure becomes available in the interim.”

[16] A screening form was not completed until August 6, 2020. Initial disclosure was provided only on August 6, 2020. The complainant’s audio-video statement was prepared for disclosure on August 6, 2020. On that same date, defense counsel wrote to the Crown regarding one of the charged offences and advised that counsel had been waiting for disclosure since January 2020. On August 24, 2020 defense wrote again to the Crown to inquire about medical records for the accused. (This was a follow up to information received in the initial disclosure.) Police attended the complainant’s residence on December 16, 2020 to obtain consent for the release of his medical records from the Toronto Western Hospital. These medical records were only prepared for the defense on June 2, 2021 (after the first scheduled trial date).

[17] Promptly, within fifteen days after receipt of the initial disclosure, defense clearly asserted its intention to proceed to trial.

[18] It is only reasonable for defense to await receipt of disclosure prior to making the decision to proceed to trial. There is no evidence from the Crown that disclosure was delayed as a result of the pandemic or the restrictions arising from it. In fact, there is no explanation whatsoever for that delay.

[19] It accordingly cannot be said that the delay that developed over a period of time that coincided with the institution of presumptive adjournments was the cause of delay. Even in the absence of presumptive adjournments, defense would have had to wait for disclosure prior to scheduling trial.

[20] The Crown seemed to argue that the absence of personal appearances during the period of presumptive adjournment obviated the opportunity for the defense to reiterate its request for disclosure. This in turn was offered as a contributing factor in the delay in producing the disclosure.

[21] The problem with this argument is that the defense is not required to repeatedly advance requests for disclosure. There is a positive obligation on the Crown to produce disclosure to an accused person. Here, the defense had made an early written request, followed up by an inquiry during the first appearance. That is more than enough. The Crown cannot essentially say that defense failure to remind the Crown sufficiently often explains Crown delay in producing disclosure.

[22] Without any element of causality, the period of presumptive adjournments cannot be said to be a situation of exceptional circumstances that should be factored into the calculation of delay.

b) Does the delay arising from the adjournment of the first trial date of May 13, 2021 to October 20, 2021 arise from the exceptional circumstances of the public health emergency?

[23] The first trial date of May 13, 2021 and the second date of May 17, 2021 were scheduled as an in person hearing, as requested by defense. As of the first trial date, the matter was 16 months and 8 days old and was still within the Jordan presumptive ceiling.

[24] On May 4, 2021, the Ontario Court of Justice issued a directive stating that out of custody trials would be adjourned. It stated as follows (inter alia):

“In light of the recent increase in COVID-19 cases and its impact on hospital resources and in order to reduce the number of people (including parties, counsel and court staff) who must leave their home to attend court proceedings, the Ontario Court of Justice is reducing the number of criminal trials and preliminary inquiries involving out-of-custody persons scheduled between Monday April 26, 2021 and Friday May 21, 2021:

Between May 10 and May 21, 2021: All in person criminal trials and preliminary inquiries involving out-of-custody accused persons may proceed. Virtual hearings are hearings in which all participants appear using remote technology other than court staff (if required to attend in person) or the presiding judge (who may attend in person).”

[25] M.S. was, at all times, out-of-custody. His trial dates were clearly affected by the new directive.

[26] After the release of this directive, counsel immediately began discussions with a view to converting the scheduled in person trial to a virtual trial. The Crown indicated its willingness to proceed by way of virtual trial. This idea was apparently canvassed with the assigned trial judge, who indicated a willingness to proceed by way of virtual trial, subject to certain stipulations. This included a requirement that all witnesses testify from a “professional location” such as a law office or a police station.

[27] The Crown endeavoured to make arrangements with the Six Nations Police for the complainant, who resides on the Six Nations, to testify from their detachment. The Six Nations Police were not, however, prepared to accommodate this request, due to COVID-19 restrictions. This was duly communicated to Defense. Defense counsel then wrote back to the Crown indicating its consent to convert the trial to a virtual hearing, and proposing various other locations including the Paris OPP detachment, the Brantford Police station, VWAP or the Crown’s office. Defense counsel even offered his own office suggesting that a police officer could attend to ensure that there was no contact between the accused and the complainant.

[28] The Crown however was not prepared to make arrangements for the complainant to testify at another location, relying on the stated objective of the directive set out in the preamble, specifically, “to reduce the number of people who must leave their homes to attend court proceedings…”

[29] On the first scheduled day of trial, the Crown explained the situation to the presiding justice, and asserted its position that, pursuant to the directive, the matter had to be adjourned. The defense characterized the situation differently: as a Crown request for adjournment due to its failure to diligently seek the conversion of the hearing to a virtual trial. Defense thus objected to the adjournment request, specifically noting that adjournment would result in the trial being scheduled beyond the Jordan limit.

[30] Ultimately, the adjournment was granted by the presiding justice, who commented,

“The situation with COVID-19 is a rapidly evolving situation. And what I mean by that is from day-to-day court practices and protocols are changing with very little notice, often times with very little certainty about what the policy is.”

[31] The court then referred to the respective dates for the original directive of out of custody trials and that of the update and went on to comment:

“…I find that Mr. Burns was diligent in his attempts to convert this trial to a virtual trial, and clearly interprets the Chief Justice’s directive-which isn’t a rule- in a manner different than Mr. Paquette or this particular justice, myself, interprets that policy.

Because of the short period of time in which this policy came out and that Mr. Burns had to make efforts to try to convert this proceeding into a virtual proceeding, I think it is only fair in the circumstances to grant the Crown’s request for an adjournment.”

[32] The Crown clearly had an obligation to follow the directive of the court with respect to the suspension of in person trials. In any case, as is evident from a review of the transcript from May 13, 2021, the court itself would not have entertained an in person trial on that date, given the directive.

[33] The terms of that directive were clear, “All in person criminal trials and preliminary inquiries involving out-of-custody accused persons will be (my emphasis) adjourned subject to a judge seized with a continuing matter ordering otherwise”. Although the directive did permit virtual trials, it did not address the conversion of in person trials to virtual hearings. It neither specifically indicated permission to convert trials nor did it prohibit their conversion.

[34] In my view, it was reasonable for the Crown to consider the expressly stated purpose of the directive in determining how to proceed. The operation of courts over the last eighteen months has presented a dynamic situation with changing requirements and demands. The Crown should not be held to a standard of perfection in interpreting how any single directive or policy should be put into place.

[35] In selecting this particular interpretation, the Crown was no doubt mindful that the Six Nations had implemented a blockade to restrict traffic into the First Nation. Many First Nations, including the Six Nations, were expressing concerns about their member’s vulnerability to COVID-19.

[36] I agree with Good, J. with respect to her finding that Mr. Burns was diligent in his attempt to convert the trial to a virtual trial.

[37] The situation with respect to court operations in May of 2021 was fluid. The first directive suspending in person trials came out from the Chief Justice’s office on April 21, 2021 and was then updated May 4, 2021. As noted by Good, J., the update was indicated as follows:

“The reduction of out of custody trials and preliminary inquiries has been extended to May 21st, 2021. However, starting May 10th virtual out of custody trials and preliminary inquiries may proceed”.

[38] There was a very short time lag between the update to the direction and the trial date.

[39] The Crown was also mindful that the VWAP office and the Crown’s office – which had been proposed by defense as alternate locations – are also located at the court address of 44 Queen. This factored into the decision not to pursue those locations because that would have meant the complainant had to attend the courthouse – the very thing the directive seemed created to avoid.

[40] The very dynamic situation, the very short time frame between the issuance of the directive and the first trial date combine to create an exceptional circumstance.

[41] The next question is whether this exceptional circumstance justifies the reduction of the delay by the entire period of 150 days between the first scheduled trial dates and the now scheduled trial dates. I think that it does.

[42] M.S.’s trial was not the only trial affected by the court directives. The court was confronted with the need to reschedule all the cases affected by the directive. As noted by Doherty, J.A. in R. v. Allen at page 348, “no case is an island to be treated as if it were the only case with a legitimate demand on court resources.” In this case, the court prioritized in custody matters. That decision is entirely reasonable.

[43] The delay of 150 days or five months is, in my view, the result of exceptional circumstances and should be deducted from delay. The anticipated end of trial in October 20, 2021 would result in a total elapse of time of 16.8 months – below the presumptive Jordan threshold.

[44] The Applicant’s s. 11(b) Charter rights to trial within a reasonable time have accordingly not been infringed and the application shall be dismissed.

Dated at Brantford, Ontario This 21st day of September 2021

The Honourable Justice K. A. Baker