ONTARIO COURT OF JUSTICE

CITATION: R. v. Greenidge, 2021 ONCJ 57

DATE: 2021 01 27

COURT FILE No.: Brampton 19-12899

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYRANNE GREENIDGE

Before Justice Paul F. Monahan

Heard on January 21, 2021

Reasons for Judgment on the s. 11(b) application released on January 27, 2021

J. Goulin............................................................................................... counsel for the Crown

M. Quenneville........................................... counsel for the accused Tyranne Greenidge

MONAHAN J.:

INTRODUCTION AND OVERVIEW

[1] Mr. Tyranne Greenidge is charged with numerous serious criminal offences arising out of a traffic stop. These offences include possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code.

[2] Mr. Greenidge was apparently the driver of a vehicle that was stopped by police on June 26, 2019. A passenger in the vehicle, Shaii-Anna Cerdas Hinds, also faced serious charges. The charges against Cerdas Hinds were stayed on January 18, 2021 on the basis of a statutory declaration. I understand the agreement to stay those charges was arrived at on January 13, 2021.

[3] The trial is set to start before me on February 1, 2021 for 6 days. It was originally scheduled for 8 days but that trial estimate was reduced to 6 days because of the resolution of the case against Cerdas Hinds.

[4] It is common ground that the overall delay from the charges to the anticipated end of the trial is 19 months and 13 days. I note that the Crown alleges no defence delay and I concur with this assessment.

The Timeline

[5] The timeline is particularized in more detail in the materials filed by the parties. Broadly speaking, it is as follows:

(a) June 26, 2019 – Mr. Greenidge is arrested and charged with the offences before the court and held for bail.

(b) August 1, 2019 – Mr. Greenidge is granted bail. The case is adjourned to allow the Crown to put together additional disclosure.

(c) August 15, 2019 – additional disclosure is provided, and the case is adjourned four weeks to allow the defence to review disclosure and provide a follow up request or set a Crown pre-trial.

(d) September 10, 2019 to October 15, 2019 – on September 10, 2019 the defence seeks to book a Crown pre-trial by email. The Crown’s office responds on September 11, 2019 and asks the defence to provide dates for the Crown pre-trial. Defence counsel provides dates by email on September 12, 2019. The Crown’s administrative assistant apparently inadvertently deleted this email and no response was provided at this time to the defence’s request for a Crown pre-trial. Defence counsel follows up on October 2, 2019. A Crown pre-trial takes place on October 15, 2019.

(e) October 20, 2019 - Mr. Greenidge elects trial in the OCJ.

(f) October 24, 2019 – the defence seeks a Judicial pre-trial (“JPT”). The first date offered by the trial coordinator’s office (“TC”) is December 19, 2019 and the JPT is held that day.

(g) December 20, 2019 – the day after the JPT, an 8 day trial is set for February 1, 2021 and scheduled to complete on February 10, 2021. This is the first set of dates offered by the TC’s office.

(h) February 12, 2020 – by this time, Assistant Crown Attorney Mr. Greg Hendry is assigned to the file, taking over from a colleague who has gone on maternity leave. Mr. Hendry notices at this time that the trial is set for dates outside of the 18 month presumptive ceiling.

(i) March 16, 2020 – the COVID-19 global pandemic largely shuts down the OCJ’s trial hearing function. The OCJ begins the adjournment of all out of custody trials as a result. In custody trials are suspended on March 20, 2020. This continues until July 6, 2020.

(j) May 22, 2020 to May 25, 2020 – Defence counsel writes to the Crown and says that the defence will be bringing a s. 11(b) application. Crown counsel speaks to Defence counsel and proposes that Mr. Greenidge re-elect for a judge alone Zoom trial in the Superior Court of Justice (“SCJ”). Crown counsel has reason to believe that such a trial can be completed in the SCJ by August 31, 2020. Defence counsel says that her client doesn’t want to change his election and wishes to remain in the OCJ. She also says that she does not consider that a Zoom trial would be appropriate for this case. She expresses a willingness to revisit the trial estimate and to attempt to seek earlier dates in the OCJ if the case can be resolved against the defendant Cerdas Hinds.

(k) July 6, 2020 – the OCJ in Brampton reopens 6 courtrooms for in person trials and begins rescheduling some in custody trials adjourned due to COVID. Shortly after this time, the OCJ begins rescheduling some out of custody cases adjourned due to COVID.

(l) September 14, 2020 – another 9 OCJ courtrooms are opened in Brampton for in person and remote trials. The pandemic rages on. The trials continue. The OCJ in Brampton does not begin rescheduling new out of custody cases until January 2021.

POSITIONS OF THE PARTIES

[6] The materials filed on this application set out the positions on this application. Briefly stated, they are as set out below.

Position of the Crown

[7] The Crown agrees that the delay to the anticipated end of trial is 19 months and 13 days which is above the presumptive ceiling. The Crown alleges no defence delay.

[8] The Crown alleges that there were two discrete events/exceptional circumstances which it says bring the delay below the presumptive ceiling of 18 months. Alternatively, the Crown argues that the case is sufficiently complex to constitute an exceptional circumstance to justify the delay above the presumptive ceiling.

[9] In particular, the Crown submits that the discrete/exceptional circumstances are as follows:

(a) The Crown pre-trial deleted email issue: An administrative assistant in the Crown's office inadvertently deleted an email from defence counsel dated September 12, 2019 seeking dates for a Crown pre-trial. The Crown argues that the resulting delay of 27 days should be deducted as a discrete event.

(b) The pandemic issue: The Crown submits that the COVID-19 pandemic is and was a discrete event/exceptional circumstance which, once it occurred, prevented the Crown from “taking steps to secure earlier dates” (Crown’s factum- paragraph 25). The Crown submits that it had a system in place to “identify and remediate” delay for identified cases (Crown’s factum – paragraph 27). In particular, the Crown says that a “designated Crown” was assigned to review cases where counsel expressed an issue with s. 11(b). “This Crown would work with counsel to ensure the trial estimate was accurate and potentially reach concessions to lower the estimate. The Crown would then review cases in the system to see if an earlier date could be found. Prior to the pandemic, NJ Bridge was assigned to this task” (Hendry affidavit – paragraph 4). The Crown submits that when the pandemic struck, the Crown was “unable to take steps to seek earlier dates; as no dates were being set in the Ontario Court of justice” (Crown factum – paragraph 26).

The Crown submits that earlier dates for a judge alone Zoom trial in the Superior Court were available. This is based on information that Mr. Hendy had from his attendance on May 13, 2020 before Justice Durno of the SCJ in another case. On May 22, 2020, in response to the defence’s stated intention to proceed with a s. 11(b) application, the Crown proposed that the defendant Greenidge should re-elect judge alone in the Superior Court and that, if he did, the trial could be held by Zoom and completed by the end of August 2020. The Crown submits that the time from Aug 31, 2020 (the time it says the case could have been completed in the Superior Court) to February 8th, 2021 (the anticipated end of trial in the Ontario Court of justice) should be deducted as delay associated with a discrete event/exceptional circumstance namely the pandemic. This is five months and eight days.

[10] The Crown submits that the net delay is therefore 19 months and 13 days minus 27 days (the Crown pre-trial deleted email issue) and minus five months and eight days (for the pandemic issue whereby the Crown was unable to seek earlier dates in the OCJ). The resulting net delay is 13 months and 10 days, which is within the presumptive ceiling.

[11] In the alternative, the Crown submits that this case is sufficiently complex to justify the period of delay above 18 months. The Crown submits, among other things, that there were two Defence counsel involved until January 18, 2020; there are a number of Charter motions; there are “upwards of six officers” scheduled to testify during a 6 day trial and that there are “controversial issues for cross examination”, making the Charter issues more complex .

Position of the Defence

[12] The defence submits that this case is a straightforward case of institutional delay above the presumptive ceiling. The defence submits that the defendant had no obligation to re-elect a trial in the Superior Court or to accept a Zoom trial. The defence says it was entitled to insist upon a trial within a reasonable time in the OCJ.

[13] The defence points out that it took almost two months to get a JPT date (October 24 to December 19, 2019 - the first date offered); and almost 14 months to get a trial date (the trial was set on December 20, 2019 and the first dates offered were February 1 to 5 and February 8 to 10 which dates the defence accepted ).

[14] The defence further submits that the Crown has not established any delay due to the pandemic. The defence further submits that no deduction should be made for the administrative assistant’s error in deleting defence counsel's email concerning the Crown pre-trial.

[15] The defence also submits that this is not a “particularly complex” case which would justify any delay above the presumptive ceiling.

[16] In the alternative, the defence submits that the case should be stayed even if it is below the presumptive ceiling.

ANALYSIS

The Jordan Requirements

[17] The test laid down by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 to decide whether the right of a person “to be tried within a reasonable time” under s. 11(b) of the Charter has been violated is well known. Briefly stated, if the total delay in the OCJ exceeds the presumptive ceiling of 18 months from the charge to the anticipated end of trial (less defence delay) then the delay is presumptively unreasonable. To rebut this presumption, the Crown must show exceptional circumstances (discrete events or complexity) which caused the delay. This delay must be deducted from the net delay, but delay which the Crown could reasonably have mitigated should not be deducted (see Jordan paragraphs 46, 47 and 75). I have previously summarized the Jordan calculation framework in detail in my own decision of R. v. Grewal, 2018 ONCJ 108 at paragraph 6.

Complexity

[18] I will address the question of complexity first, as my disposition of this issue affects the rest of my analysis. The Supreme Court in Jordan held that there will be cases which are “particularly complex” which may be viewed as an exceptional circumstance which would justify a period of delay above the presumptive ceiling (see Jordan paragraphs 77 to 80). In my view, this case is not sufficiently complex to constitute an exceptional circumstance. Let me explain why.

[19] The Supreme Court of Canada said in Jordan that mere complexity will not justify a delay above the ceiling. To justify a delay on this ground, the case must be “particularly complex” (my emphasis). The Court stated that particularly complex cases will be those involving evidence or issues that “require an inordinate amount of trial or preparation time”. As concerns the evidence, a particularly complex case might involve voluminous disclosure, a large number of witnesses, significant expert evidence or involve charges alleged to have happened over a long period of time. As concerns the issues, a particularly complex case might involve a large number of pre-trial applications or novel or complicated legal issues. The Supreme Court observed, for example, that a typical murder trial would not be sufficiently complex to constitute an exceptional circumstance (see Jordan paragraphs 77 and 78 for a more detailed review of these issues).

[20] I agree with the Crown that this case is different from many shorter trials of two to three days which are tried in the OCJ. A trial of six to eight days in the OCJ places a significant burden on the Crown, court staff and judges and points towards a degree of complexity. Further, there are significant Charter issues which will need to be determined in this case and this factor also points towards some complexity.

[21] However, the Charter issues here (apart from the 11(b) heard before trial) will form part of the trial and raise issues the OCJ addresses on a regular basis. They are not novel issues. Further, six police witnesses will take time to hear but it is not a particularly large number. The anticipated trial or preparation time is not “inordinate”. I don’t understand the disclosure to be voluminous. The underlying factual matrix in this case took place over a brief period of time.

[22] There may be trials in the OCJ where the length of the trial will, together with other factors, meet the threshold of “particularly complex” and justify a delay above the presumptive ceiling. In my view, this is not one of them.

The Pandemic

[23] There is no doubt that the worldwide COVID-19 pandemic is an exceptional circumstance or discrete event and other courts have said so: see R. v. Truong, 2020 ONCJ 613 at paras 71-72 and the cases it refers to. To say that these are difficult days is an understatement. The world has not seen anything like this pandemic in 100 years. Hundreds of thousands of people around the world have become ill and died due to COVID -19. Thousands of people in Canada have died and continue to die everyday due to COVID-19. The pandemic is ongoing.

[24] As I write these reasons, Ontario residents are subject to a “stay at home order”. The impact on the courts, including the OCJ in Brampton has been significant. The courts constitute an essential service and they provide justice to those who appear before it. This function is a cornerstone of our rule of law. The stakeholders before the courts including Crown, defence counsel, defendants, judges and court staff have tried to meet this challenge: many in-person and remote hearings continue notwithstanding the raging pandemic.

[25] The effect on defendants with cases before the courts has also been extremely challenging: as I write these reasons, I take judicial notice of the fact that approximately 950 prisoners at Maplehurst Institution (the institution where men with in custody cases before the Brampton OCJ are usually held) are in lockdown and are not being taken to and from in person court hearings, and there are not sufficient resources in place to allow everyone to appear remotely at their hearings. This is due to a COVID-19 outbreak at Maplehurst.

[26] Having said all that, it is not sufficient for the Crown in this case to point to the pandemic as an exceptional event and then say that it sought to provide an earlier trial date in the SCJ. This misses a critical point in the legal analysis. In my view, the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic. The Supreme Court in Jordan at paragraph 75 said that the “the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded” (my emphasis).

[27] This is 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 said to be a direct link between the pandemic and the delay. I am not meaning to set out an exhaustive list of the types of cases delayed due to the pandemic or to express a conclusive view as to a determination of pandemic related delay in other cases.

[28] In this case, the delay above the ceiling was put in place months before the pandemic, when the Crown and the defence set the trial date on December 20, 2019 with a trial scheduled to end on February 10, 2021. At that point in time prior to the pandemic, the anticipated delay was 19 months and 15 days, some 45 days above the presumptive ceiling set by Jordan of 18 months.

[29] During oral argument, Crown counsel agreed with the point that if there had been no pandemic and had the Crown not been successful in obtaining earlier dates for the trial to be completed within 18 months, or at least being in a position to have the trial coordinator offer earlier dates (which might have given rise to defence delay if they were not accepted), the case would have to be stayed, subject only to the complexity point. This case would be above the 18 month Jordan ceiling.

[30] Accordingly, it is my view that in this case, for the Crown to rely on the pandemic as an exceptional circumstance, the Crown must prove on a balance of probabilities that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 18 month ceiling or at least the Crown would have been able to secure earlier dates from the trial coordinator’s office to offer to the defence which would have permitted the trial to be completed below the presumptive ceiling (or which might be viewed as defence delay if not accepted).

[31] In my view, the evidence the Crown has put forward on this application falls short of establishing that the Crown would have, but for the pandemic, succeeded in having this case tried in under 18 months or that it would have been able to secure earlier dates from the TC to offer to the defence (which may have given rise to defence delay if they were not accepted).

[32] Neither the affidavit of Mr. Hendry nor the factum of the Crown asserts that the Crown would have been successful in moving the trial date up. The affidavit simply says that “had I or my office been made aware that there would be an 11(b) application prior to the shutdown of the courts, steps could have been taken to seek an earlier trial date at that time” (my emphasis). It also says that prior to the pandemic, where an 11(b) concern was raised by defence counsel, “the Crown would review cases in the system to see if an earlier date could be found” (my emphasis) (see paragraphs 3 and 4 of the Hendry affidavit).

[33] In its factum, the Crown asserts in a slightly different context that it was “robbed of the opportunity to attempt to make efforts prior to the shutdown to secure an earlier date” (my emphasis) (paragraph 27 of the Crown’s factum).

[34] Put simply, the Crown’s evidence and written argument do no more than say, in effect, that but for the pandemic, the Crown would have tried to secure earlier dates. They do not assert that it would have succeeded.

[35] In response to my questions during oral argument, the Crown did assert that I should find on a balance of probabilities that, but for the pandemic, the Crown would have been successful in moving this case up to new dates within the Jordan ceiling.

[36] The evidence in this case does not provide a proper factual foundation for me to conclude that the pandemic caused the delay above the 18 months. The most I can say here, in the absence of further evidence on this point, is that but for the pandemic the Crown likely would have tried at some point and might have been successful in moving the trial date up or securing earlier dates to offer to the defence. I cannot say, on this record, that they would more likely than not have been successful in this regard. In order to find that some part of the delay in this case was caused by the pandemic, I consider that I would have to make such a finding.

[37] I note as well that no steps were taken to seek to move the trial date up earlier between the approximately three months that past from the time the trial was set on December 20, 2019 to March 16, 2020 (when the court essentially shut down its trial function due to the pandemic). I recognize that the defence had not yet complained about the delay but the Crown would have to know that this case was at some risk of being stayed: when the trial date was set, the case had only started less than 6 months earlier and there was already 19.5 months of anticipated delay to the end of the trial. I recognize how busy the Crown’s office is in Brampton and that the responsible assistant Crown attorney was going off on Maternity leave but these facts give me further concern that the Crown has not established in this case that it would have been successful in having this case heard within the Jordan ceiling but for the pandemic.

[38] The Crown points to its efforts it made to obtain an earlier trial date in the SCJ. The Crown says it need only prove that it acted reasonably in response to an exceptional circumstance and that steps taken in this regard do not have to be successful. It is true, of course, that the Crown does not have to respond perfectly or successfully to exceptional circumstances. But before one gets to the question of whether the Crown reacted appropriately to the exceptional circumstances, in my view the Crown must prove the exceptional circumstances caused the delay. I repeat the point made above that because of the fact that the delay was in place prior to the pandemic, the Crown must prove that but for the pandemic, the case would have been moved up to within the 18 month ceiling or earlier dates would have been offered, having the same effect under the Jordan framework.

[39] It was commendable that the Crown raised the possibility of an earlier Zoom trial in the SCJ. However, the defendant was entitled to elect and require that he be tried in the OCJ, and he was entitled to have his own reasons for doing so. The Crown’s obligation was to bring the defendant to trial in the OCJ within the Jordan ceiling. I am not satisfied that the Crown can answer the Jordan issues in the OCJ by offering the possibility of a trial in the SCJ. Even if I am wrong and the Crown does not have to show that but for the pandemic this case would have been tried under the Jordan ceiling in the OCJ (or dates offered in this regard), the offer of a possible trial in the SCJ does not cure the delay here.

[40] Further, if I am wrong and the Crown has established that the delay above the ceiling in this case is caused by the pandemic, the Crown still has to take reasonable steps to mitigate any delay. It says it did that by raising the potential SCJ trial. I don’t consider that was satisfactory.

[41] Here, at no time before or after the Crown learned of the defence’s position on the 11(b) issue in May 2020, did the Crown make any inquiry of the OCJ as to whether or not the case could be moved up, notwithstanding the pandemic.

[42] The public record is clear that as of September 14, 2020, the OCJ (criminal and family) in Brampton was operating approximately 15 in person and remote trial and plea courts (less than the Court’s usual number of courts). I infer from all the evidence that the Crown did not inquire of the OCJ because it thought that the OCJ was under such pressure seeking to reschedule adjourned COVID cases and beginning the scheduling of new cases, that the Crown should not have even bothered to ask because it would not be successful.

[43] The defence suggested in May 2020 that it would seek to shorten the trial estimate with a view to seeking earlier dates in the OCJ if the defendant Cerdas Hinds was released from proceedings. In May 2020, the Crown was apparently pursuing letting Cerdas Hinds out of the case if it received a statutory declaration. By October 2020, the Crown had apparently changed its mind and was not prepared to let Cerdas Hinds out for a statutory declaration. The Crown did ultimately agree to do this but not until January 2021 when the case was stayed against Cerdas Hinds in return for a statutory declaration. When the case was stayed against Cerdas Hinds, the trial estimate was lowered to 6 days.

[44] In my view, notwithstanding the pandemic, the Crown could have resolved the Cerdas Hinds issue much earlier and thereby reduced the time trial estimate, as defence counsel suggested and as ultimately happened. Further and more importantly, notwithstanding the pandemic, the Crown should have at least asked the OCJ trial coordinator whether this case could be moved up and heard under the Jordan ceiling. I don’t know what the result of those inquiries would have been, but it is possible that earlier dates would have been offered. Even if the result was that it could not be moved up, this step should have been taken in furtherance of the Crown’s duty to demonstrate that it took reasonable efforts to mitigate what is says was the delay caused by the pandemic.

The Crown pre-trial Email Issue

[45] In this case, there was a human error when the Crown's administrative assistant inadvertently deleted Defence counsel's email of September 12, 2019 seeking a Crown pre-trial date. Defence counsel fixed the situation for the Crown when she followed up on October 2nd, 2019. Human error can be a discrete event/exceptional circumstance: see the R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at paragraph 58.

[46] The delay caused by this human error was 20 days. This is the time between the email of September 12 from defence counsel offering the dates and the time of October 2 when defence counsel followed up and the problem ultimately was remedied. I am not critical of defence counsel but when a person does not respond to an email after a week or so, there is a reasonable prospect that the email has been overlooked or some error has been made. Obviously, the email should not have been deleted, but defence counsel should have followed up earlier on the point.

[47] There is nothing to suggest that the error here was part of a systemic issue. A new process has now been put in place for scheduling Crown pre trials. The delay here was not particularly long and I take that into account in my determination of this issue. The error should not have happened, but human error and mistakes do occur. No one is perfect and we need to allow some latitude when human errors are made.

[48] In the circumstances of this case, I am prepared to deduct 20 days as an exceptional circumstance/discrete event associated with the deleted email. It is not enough to bring this case under the presumptive ceiling.

CONCLUSION

[49] This is a serious case. Guns are a major problem in our society. I have reluctantly concluded that I have no choice but to enter a stay in this case for a violation of section 11(b) of the Charter. The delay is 18 months and 25 days which is above the presumptive ceiling of 18 months. In doing so, I am not casting any aspersions on any argument that might be made in other cases as to the impact of the pandemic on the hearing of cases in the OCJ.

[50] I also point out that the majority of the delay in this case is not the fault of Crown counsel, defence counsel, the court or the trial coordinator. The die was cast in this case when it took roughly 2 months to make a JPT available and another 14 months to make a trial date available. Why did this happen? This happened because there was a lack of resources in the Brampton OCJ. This is an observation that has been made in many other cases. It is not the first time this has happened in the Brampton OCJ, and it is unlikely to be the last.

[51] For the reasons outlined above, a stay of the charges against Mr. Greenidge will be entered by reason of a violation of his rights under s. 11(b) of the Charter.

Released: January 27, 2021

Signed: Justice Paul F. Monahan