Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: June 16, 2021

COURT FILE No.: Brampton 3111 998 18 13472

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EDWARD BOBBITT

Before: Justice G.P. Renwick

Heard on: 16 June 2021

Reasons for Judgment released on: 16 June 2021

Counsel: R. Mullins, counsel for the Crown J. Parkin, counsel for the defendant Edward Bobbitt

RULING ON S. 11(b) CHARTER APPLICATION

RENWICK J.:

Introduction

[1] The Defendant is charged in a single-count Information that he operated a motor vehicle with an excess blood alcohol concentration under the predecessor drink-driving provisions of the Criminal Code.

[2] The Defendant was arrested and charged with the alleged offence on 05 November 2018 and the Information was sworn on 07 November 2019. His trial is set for 21-22 July 2021. The Defendant applies to have his charge stayed for a violation of his s. 11(b) Charter right to be tried within a reasonable period of time.

[3] The prosecutor opposes the granting of the Application. The prosecutor submits that when the delay solely attributable to the Defendant and the delay occasioned by the exceptional circumstance of a global pandemic are subtracted from the total delay, the matter falls within the guidelines created by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and the matter ought to proceed to a trial on the merits.

Evidence and Findings

[4] The parties agree that the delay from the date of the swearing of the Information until the date that the trial is set to conclude is 32 months and 16 days or 989 days of delay.

[5] The parties agree that some of the initial adjournments prior to the matter being set down for trial and other unavailability of the Defendant’s counsel when setting the second and third trial dates were solely attributable to the Defendant:

i. 27 February 2019 to 15 April 2019 (48 days); ii. 01 April 2020 to 16 June 2020 (76 days); and iii. 16 June 2021 to 20 July 2021 (35 days).

[6] In addition to this delay (48+76+35=159 days), the prosecutor submits that the Defendant was solely responsible for the delay from 05 February 2019 until 27 February 2019 (22 days), when the prosecutor and the court were prepared to set the first trial date, but the Defendant was not.

[7] Six days before the appearance on 05 February 2019, the Defendant’s counsel had sent a disclosure request for booking, releasing, and cell videos of the Defendant in police custody. It is now conceded by the Defendant that this additional disclosure request was eventually fulfilled on 27 February 2019, although the matter was adjourned twice in error.

[8] The Defendant relies upon the fact that these videos were critical pieces of disclosure that were necessary before the Defendant could move the matter forward and set a trial date.

[9] I disagree. Not every disclosure request is the same. Though there is no doubt that some use could possibly be made of the items sought by the Defendant in considering whether to advance certain Charter applications based upon the results of the video evidence, the trial estimate had already been set, the prosecutor had already indicated it was proceeding summarily, the Defendant was present in the police station and would have had some idea of the use that could possibly be made of the videos, and nothing prevented the setting of the first trial date on 05 February 2019. This was not a case where the police had alleged impaired driving and the video evidence could have assisted in any fundamental way to factually challenge the criminal allegation. Though it would certainly have come in handy well before the trial, this outstanding disclosure, which had only been requested on 31 January 2019, should not have prevented the Defendant from setting the matter down for trial on 05 February 2019. Consequently, I would add these 22 days to the delay solely attributable to the Defendant (159+22=181 days).

[10] Unfortunately, on the date set for the first trial (12 February 2020), the court could not accommodate this matter. The matter was adjourned that day to the second trial date: 17-18 June 2020.

[11] This adjournment of the first trial date was caused solely by the lack of judicial resources in this region and it added over four additional months to the total delay in this case.

[12] The parties agree that although there were trial dates offered from 23 March 2020, the Defendant’s counsel was unavailable for 18 suggested two-day trial dates offered until 17 June 2020. This concession on the part of the Defendant is reasonable. Though the prosecutor agreed that it was not reasonable to expect counsel to have accepted the three dates offered in March (which was also a reasonable position to take), it is clear that but for the lack of judicial resources, the matter would not have been adjourned.

[13] Then, before the second trial date came, the world changed. The coronavirus of 2019 was declared a global pandemic on 11 March 2020 by the World Health Organization.

[14] The Ontario Court of Justice was swift to respond to this unprecedented health crisis. On 15 March 2020, the Chief Justice issued a public announcement on the court’s website which included the following information:

COURTHOUSES WILL REMAIN OPEN

We have a constitutional role that must be exercised on a continuing basis. For the time being, all courthouses will remain open, but we are taking every step to reduce the number of people attending at the courthouse.

OUT-OF-CUSTODY APPEARANCES

All out-of-custody appearances (including POA appeals) other than guilty pleas on urgent matters will be adjourned without a personal appearance to a specific date 10 weeks from the appearance date. This includes any continuations (trials or sentencings) which will be adjourned to schedule a further continuation date. Media and court signage will advise all parties that they need not appear in the courtroom and of their next return date.

In court, all matters will be dealt with by bench warrants with discretion, unless the individual is before the court. The court will ensure that all bench warrants are endorsed “with discretion” via initials on the Information and that no warrants are prepared. All matters on the docket should be addressed on the record.

[15] Based on this notice, the Defendant should have been aware that his trial would be adjourned on 17 June 2020 for 10 weeks and that he did not personally have to attend court for this purpose, and if he did not, a bench warrant with discretion would be issued, returnable to the presumptive date.

[16] On 17 June 2020, the day that the Defendant’s trial had been re-set to begin, the Chief Justice of the Ontario Court issued another public notice advising that trials and other matters were resuming on 06 July 2020 in several regions, including this one.

[17] Nonetheless, by virtue of the first public announcement on 15 March 2020, the Defendant should have been aware that his trial would be spoken to on 26 August 2020, which was 10 weeks following the adjourned trial date (17 June 2020).

[18] The use of 10 week presumptive adjournments was re-iterated in the Chief Justice’s public notice on the court’s website on 11 May 2020.

[19] Thereafter, the Chief Justice posted regular updates, and matters were adjourned for either five or 10 weeks, presumptively. As of 06 July 2020, trial readiness and other case management courts that spoke to adjournments began to operate by teleconference or telephone appearances.

[20] On 12 August 2020, the Chief Justice posted another public notice to advise that effective 17 August 2020, cases adjourned due to the pandemic would be prioritized by their original trial date for re-scheduling. For out of custody matters, like this one, adjourned from 08 June through 03 July 2020, they could be re-scheduled “no later than” 14 September 2020. To do so, “counsel should complete and submit the revised version of the [Trial/Preliminary Inquiry Scheduling] Form (dated August 12, 2020) to the Trial Coordinator’s office.”

[21] The Defendant’s matter was addressed in his absence on 17 June 2020, 26 August 2020, 30 September 2020, 04 November 2020, 09 December 2020 and 03 February 2021. During submissions, counsel for the Defendant submitted that for some unknown reason, counsel was unaware when the Defendant’s matter would be addressed as well as the fact that counsel or an agent on behalf of the Defendant could appear remotely to speak to these matters.

[22] On 26 November 2020, counsel for the Defendant sent an email to the Clerk of the court seeking the next available date for this Defendant, however the email did not include the Information number, and the Defendant’s surname was misspelled. On 27 November, the spelling of the Defendant’s name was corrected. The Clerk of the court wrote to the Defendant’s lawyer’s assistant:

Currently, I see no future court dates for Brampton.

If this matter was recently dealt with in court, it might still be in the process of being updated.

[23] For some reason unknown to the court, the Defendant’s materials do not include any other emails between the court and counsel’s office after 27 November 2020, until 16 February 2021. I note that in these emails until 27 November, the lawyer’s assistant never provided an Information number and the subject line still included the incorrect spelling of the Defendant’s last name.

[24] As of 16 February 2021, the Clerk of the court was given the proper spelling of the Defendant’s name, his date of birth, and the Information number. The Clerk wrote to another court administrator seeking information about the Defendant’s case, as “ICON” (the court’s own internal computer system) did not show any Brampton charges for the Defendant. Again, there is no further correspondence included in the Defendant’s materials until 30 April 2021. On that date, the “Court admin” who responded to the request for the Defendant’s court dates between September 2020 and February 2021 also requested a “file number for this matter.” No other correspondence is included in the Defendant’s materials.

[25] The Defendant suggested in oral submissions that because the court’s administration had difficulties finding the return dates for the Defendant, it matters not that neither counsel nor the Defendant appeared during any of the presumptive adjournments from 17 June 2020 until an agent for counsel appeared on 28 April 2021.

[26] I cannot accept this submission for two reasons:

i. The Ontario Court website was replete with information about the presumptive adjournments, how to contact court administrators, when matters could be expected to be addressed, how to use technology to attend court remotely, and when trials could be rescheduled; and ii. Even on 28 April 2021, when a third trial date had already been arranged between the Trial Coordinator and the parties, counsel for the Defendant was reluctant to secure the trial dates and confirm them on the record before speaking to the prosecution about resolving the matter.

[27] The lack of any real attempt to move the matter along beyond sending a handful of emails to the court’s administrators beginning some five months after the second trial date passed, do not assist the Defendant to demonstrate the alacrity one would expect of someone seeking to protect their s. 11(b) Charter right.

Governing Jurisprudence

[28] The first step under the Jordan analysis is to determine the total length of time between the date when the defendant was charged and the completion of his trial. The next step is to subtract from the total delay any time periods which are “attributable to the defence.”

[29] If the net delay remains above the appropriate ceiling (which is 18 months in this court):

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. Jordan, supra, at para. 47.

[30] If, after subtracting defence delay, the net delay is below the 18-month ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. …stays beneath the ceiling [will] be rare, and limited to clear cases. Jordan, supra, at para. 48. [Emphasis in the original.]

[31] What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.” R. v. Cody, 2017 SCC 31, at para. 28; Jordan, supra, at para. 66.

[32] That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:

In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138). Cody, supra, at paras. 29-30 and 32-33, respectively.

[33] In Mallozzi, our Court of Appeal has also interpreted defence delay as:

…including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, at para. 55.

However, the court noted that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay.

[34] Recently, courts have begun to grapple with the exceptional circumstance of the on-going pandemic, court limitations, the need to account for health considerations, and the re-scheduling of matters that have been adjourned or otherwise delayed over the past 15 months. See R. v. Simmons, 2020 ONSC 7209 and R. v. Khattra, 2020 ONSC 7894.

[35] Exceptional circumstances are those that “are reasonably unforeseen or reasonably unavoidable” and those where the prosecution “cannot reasonably remedy the delays emanating from those circumstances once they arise.” Khattra, supra, at para. 59.

[36] In Khattra, the court was persuaded that:

in principle, in most cases that were adjourned because the pandemic precluded the commencement of jury trials, the entire period of the delay until the new trial is fairly characterized as attributable to the pandemic. This makes sense. It reflects the reality that the administration of justice could not instantly re-start all those many cases that had been delayed on the very first day jury trials resumed. The justice system must acknowledge and take account of the fact that it required, and will in the future require a reasonable time for trials to be re-scheduled, bearing in mind the significant challenges that this poses for both the courts and for counsel. Khattra, supra, at para. 82.

Discussion

[37] It is obvious that the pandemic has created unprecedented challenges not only to the justice system, but to our everyday existence. It is unrealistic to take a simplistic view of the delays occasioned to the Defendant’s trial. I must consider the overall context, the entire behaviour of the parties over the past 31 months, and the efforts made to resume the scheduling of trials delayed by the health crisis.

[38] Counsel for the Defendant submits that it is appropriate to apportion the delay from 17 June 2020 until 26 November 2020 (164 days) as part of the discrete exceptional event, the global pandemic, which may be deducted from the total delay in this matter. The prosecutor seeks to deduct the entire 13-month period from 17 June 2020 until 21 July 2021 (400 days) from the total delay given that this was the sole reason for the adjournment of the Defendant’s second trial dates.

[39] The prosecutor also submits that even if the pandemic does not account for all of the delays since 17 June 2020, the Defendant’s actions contributed to the delay in rescheduling his trial beyond 14 September 2021 and should be deducted from the entire delay, regardless.

[40] There is merit to the positions of both parties.

[41] The prosecutor notes that the record is replete with inactivity, poor decision-making on the part of the Defendant, and a lack of a consistent effort to keep advancing the matter to completion, which has persisted even until as recently as 28 April 2021.

[42] However, for his part, the Defendant did not cause the adjournment of his second trial date. And although his actions contributed to some of the delay until 26 November 2020, the court’s own process obstructed his attempts to learn the next date and move the matter along. As well, it would be a windfall to the prosecution to claim the entire 13 month period between the second aborted trial date and the re-scheduled dates of 21-22 July 2021. As well, it must be remembered that but for the inability of the system to accommodate the Defendant’s first trial, the matter may well have concluded before the pandemic was announced.

[43] In consideration of the actions of the Defendant, I find that some of the delays caused by the multiple presumptive adjournments due to the pandemic could have been avoided, had the Defendant made efforts to reschedule his trial on or before the appearance on 30 September 2020.

[44] The parties accept that the Defendant submitted his request to reschedule the trial on 17 February 2021 and that rescheduling did not occur until 23 March 2021. Accordingly, the delay from 30 September 2020 until 17 February 2021 is delay that is solely attributable to the Defendant.

[45] The Defendant is solely responsible for the following periods of delay:

i. 05 February 2019 until 15 April 2019 (70 days); ii. 01 April 2020 until 16 June 2020 (76 days); iii. 30 September until 17 February 2021 (141 days); and iv. 16 June 2021 to 20 July 2021 (35 days).

[46] The entire period of delay attributable to the Defendant is the sum of these periods: 70+76+141+35=322 days.

[47] Once the Defendant contacted the prosecutor and the Trial Coordinator seeking a new trial date (17 February 2021), the constraints of the system caused by the pandemic account for the delay until the first new trial date that was offered: 30-31 March 2021. However, neither the prosecutor nor the Defendant were able to accept this date.

[48] The exceptional circumstance of a global pandemic caused the following delays:

i. 17 June 2020 until 29 September 2020 (105 days); and ii. 18 February 2021 until 30 March 2021 (41 days).

[49] The total delay caused by the pandemic is the sum of these delays: 105+41=146 days.

[50] When the entire sum of defence delay and pandemic delay (322+146=468 days) is deducted from the entire delay calculated from the date the Information was sworn until the anticipated completion of the Defendant’s trial, the remainder is institutional delay: 989-468=521 days or approximately 17 months and one week. This net delay is below the 18-month (547 days) limitation for trials in the Ontario Court.

[51] Again, it is obvious that the Defendant has not made a concerted effort throughout the preceding 31 months to advance this case and protect his s. 11(b) right. I do not find that after accounting for the Defendant’s actions and the delays caused by a completely unforeseen international health crisis that the prosecution has taken an inordinate period of time bringing this Defendant to trial.

Conclusion

[52] The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time is not anticipated to be violated if the evidentiary portion of this trial ends on 22 July 2021 as anticipated.

[53] Accordingly, this Application is dismissed.

Released: 16 June 2021 Justice G. Paul Renwick