R. v. McCudden, 2022 ONCJ 138

ONTARIO COURT OF JUSTICE

DATE: 2022 03 25 Information Numbers: 20-4676 and 20-660

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LIAM McCUDDEN

Before: Justice J.P.P. Fiorucci

Heard on: February 7, 2022

Reasons for Judgment on s. 11(b) Charter application released on: March 25, 2022 [^1]

Counsel: J. Kim..................................................................................................... counsel for the Crown B. Starkman and R. Wulkan...................... counsel for the accused, Liam McCudden

FIORUCCI J.:

Introduction

[1] The accused, Liam McCudden, is charged with having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood within two hours after ceasing operation of a conveyance (s. 320.14(1)(b) of the Criminal Code) and driving a motor vehicle at a rate of speed that was 50 kilometres per hour or more over the speed limit (stunt driving: s. 172(1) of the Highway Traffic Act).

[2] This is an application by Mr. McCudden for a finding that his right to a trial within a reasonable time under s. 11(b) of the Charter was breached, and for a stay of the proceedings pursuant to s. 24(1).

The State of Affairs in the Ontario Court of Justice in Hamilton

[3] The Ontario Court of Justice in Hamilton has experienced a noticeable rise in complex criminal trials. The types of cases regularly being litigated at this level of court include gun and drug prosecutions, often involving multiple accused, with Garofoli challenges to the validity of search warrants and a steady flow of sexual assault prosecutions which often involve child victims and have multiple pre-trial applications. The increasing homicide rate in the city requires OCJ judicial resources for judicial pre-trials, youth homicide judicial interim release hearings and trials, and homicide preliminary inquiries for adult accused which last days. The above cases vie for court time with domestic assaults, with other violent offences, including weapons offences, and with an array of other criminal charges too varied to list here.

[4] The volume and complexity of the work creates scheduling challenges. With the judicial resources currently available in the Hamilton OCJ, a daily court list with more than one trial and/or contested matter is the norm, not the exception, often resulting in matters not being reached and having to be adjourned.

[5] The shutdown of court operations caused by the COVID-19 pandemic created additional scheduling backlogs and challenges. However enticing and convenient it may be to make the COVID-19 pandemic the scapegoat for all delay in this jurisdiction that cannot otherwise be explained, such an approach merely masks the reality that the dam was already cracking prior to any mask mandates or plexiglass fitted courtrooms.

[6] Although no doubt shocking to members of the public, Mr. McCudden’s case is viewed by frequent users of the justice system as a “less serious” case when pitted against those I have chosen to mention above. For Mr. McCudden, and other accused persons facing similar prosecutions, and members of the public who have an interest in seeing these cases tried on their merits, nothing could be further from the truth.

[7] Currently, in Hamilton, a formidable competitor for the attention and limited time of OCJ judges is the wave of s. 11(b) applications which is threatening to morph into a tsunami. The new analytical framework introduced by the Supreme Court of Canada in Jordan for assessing unreasonable delay was meant to simplify the test that trial judges apply to determine whether a stay of proceedings should be entered. Maybe so, but the volume of materials filed on such applications and the court time and judges’ time required to dispose of these applications create an additional strain on already scarce judicial resources.

[8] Equally concerning is the fact that s. 11(b) applications in this jurisdiction are increasingly being brought in cases that all justice system participants, and the public, consider to be the most serious: high level drug trafficking prosecutions, sexual offences, including child sexual assaults, and even homicides. It is against this backdrop that Mr. McCudden seeks a stay of proceedings for his “less serious” offences of 80 and over and stunt driving.

Overview and Positions of the Parties

[9] Mr. McCudden’s two charges arose out of the same driving incident. The Crown elected to proceed by summary conviction on the 80 and over charge, and the parties agreed that the Highway Traffic Act charge would be tried together with the Criminal Code charge. The alleged offence date is July 18, 2020. Information No. 20-4676 relating to the 80 and over offence and Information No. 20-660 pertaining to the Highway Traffic Act offence were both sworn on July 28, 2020. [^2]

[10] The Defence submits that, in the context of a drinking and driving case like Mr. McCudden’s, the s. 11(b) clock should run from the date of the offence; the date on which Mr. McCudden was arrested and released with a first court date and became subject to consequences such as the automatic administrative suspension of his driver’s licence for 90 days pursuant to the Highway Traffic Act. The Crown says that it is well-settled by appellate authorities that the date on which the information was sworn is the start date when calculating s. 11(b) delay.

[11] For reasons set out below, I agree with the Crown’s position on this point and have used July 28, 2020, the date on which the informations were sworn, as the start date for calculating delay. The anticipated end date of the trial is March 23, 2022. The total delay in this matter is 19.9 months or 604 days (from July 28, 2020 to March 23, 2022).

[12] At the judicial pre-trial (JPT), the parties agreed that one day of court time was required for Mr. McCudden’s trial, including a Charter application he intended to bring. The trial was scheduled to take place on November 5, 2021. It started on November 5th but did not finish. The parties agreed that a half day was required to complete the trial. December 9, 2021 was chosen. On December 9th, Mr. McCudden’s trial did not proceed because the Crown decided to use the court time for pre-trial motions brought by another accused on a case involving allegations of sexual assault and sexual interference on a child. Mr. McCudden’s case was adjourned to March 23, 2022, which is the anticipated end date of his trial.

[13] The Crown asserts one period of defence delay: the entire month of February 2022 (28 days). When it was evident that Mr. McCudden’s trial continuation would not be reached on December 9th, the parties communicated with the Trial Coordinator (TC) to obtain March 23rd for the continuation. Defence counsel provided the TC with various dates in January and March but indicated that he was not available the entire month of February. The Crown says that, although the TC did not state that there were no dates the Court was available before March 23rd, since the TC asked counsel to provide her with dates from January on, there must have been available dates before March 23rd. Therefore, says the Crown, the entire month of February 2022 should be deducted as defence delay due to the unavailability of counsel.

[14] The Crown characterized the period between the initial trial date of November 5, 2021, and the second trial date of December 9, 2021 (35 days) as an exceptional circumstance due to the trial unexpectedly requiring more time than estimated. On November 5th, the Crown asked me to exercise my case management powers, as set out in paragraph 38 of the Supreme Court of Canada’s decision in R. v. Cody [^3], to summarily dismiss the accused’s Charter application on the basis that it had no reasonable prospect of success. I did so after expending Court time to hear submissions from counsel. For the reasons set out in my analysis, I have considered this time period under the category of defence delay.

[15] The Crown argues that the time period between the date of the Crown pre-trial on October 29, 2020 and the JPT conducted on January 6, 2021 (70 days) is attributable to the exceptional circumstances related to the COVID-19 pandemic. In essence, the Crown says that the Court should find that it took that long to get a JPT because the pandemic created delays within the criminal justice system.

[16] If I accept the Crown’s submissions, once defence delay and exceptional circumstances are deducted from the total delay, the remaining delay is below the presumptive ceiling (15.5 months or 471 days), which shifts the onus to the Defence to show that the delay is unreasonable. [^4]

[17] The Defence submits that there is no evidentiary basis for the Crown’s claim that the month of February 2022 is defence delay. The e-mail correspondence exchanged between the TC, Crown counsel, and Defence counsel, shows that the Crown was available and that the Defence was not available in February. However, the evidentiary record on the s. 11(b) application is completely silent about the Court’s availability to conduct the trial on any days in the month of February 2022. The TC did not offer February dates which were declined by the Defence. The first and only date provided by the TC was March 23rd, which the Defence accepted.

[18] With respect to the 35 days between the first trial date (November 5th) and the second trial date (December 9th), the Defence says that the Crown knew when it filed its responding materials for the Charter application that it would be seeking summary dismissal of the application. Since the application for summary dismissal was not contemplated in the original time estimate, the Defence says that the Crown should have taken steps to mitigate the foreseeable delay that would be caused by this additional step and seek more time to complete the trial at that point. As I stated, I have chosen to deal with this time period under the category of defence delay.

[19] The Defence submits that the Crown has tendered no evidence to support its claim that the 70-day delay between the Crown pre-trial and the JPT was caused by the exceptional circumstance of COVID-19.

[20] The Defence position is that the presumptive ceiling has been exceeded and a stay must follow. In the alternative, if the Court finds that the presumptive ceiling has not been exceeded, the Defence says that it has met its onus to show that the delay was unreasonable.

[21] The following is a summary of the significant dates within the case chronology:

• 18 July 2020: Arrest
• 19 July 2020: Release on Undertaking with first court date of September 4, 2020
• 28 July 2020: Information Nos. 20-4676 and 20-606 sworn and Defence counsel wrote to the Crown requesting disclosure
• 4 September 2020: First Court Appearance: neither Defence counsel nor the accused attended due to a clerical error in counsel’s office. Matter adjourned to October 9, 2020, with a bench warrant issued but held to the next court date.
• 8 September 2020: Defence counsel wrote again to the Crown to confirm that some disclosure had been received but also to follow up on items of disclosure that the Defence had previously requested which had not yet been provided, including the breath room video.
• 14 September 2020: A Crown Case Management Coordinator advised Defence counsel that the Crown’s Office in Hamilton has an e-disclosure portal which would allow the Defence to access all disclosure on the portal if he follows the instructions provided to set himself up on the portal, which included providing an undertaking from counsel. On the same day, Defence counsel provided the undertaking and created his account. The initial disclosure materials were shared with the Defence electronically on the same day.
• 1 October 2020: Crown advised Defence counsel that a copy of the breath room video was available, but since it was classified as sensitive disclosure, a sensitive disclosure undertaking would need to be signed by Defence counsel.
• 2 October 2020: Defence counsel signed the disclosure undertaking for the breath room video.
• 5 October 2020: Crown counsel received the undertaking.
• 8 October 2020: The breath room video was packaged and released to Defence counsel and sent via Purolator courier.
• 9 October 2020: Second Court Appearance: Counsel for the Defence attended court to advise that some disclosure was still outstanding, including the breath room and station videos. Matter adjourned to November 10, 2020, for further disclosure and Crown pre-trial if sufficient disclosure received.
• 29 October 2020: Crown pre-trial conducted by telephone. Defence counsel’s office e-mailed the TC the same day to arrange a JPT date and obtained the first available date of January 6, 2021.
• 10 November 2020: Third Court Appearance: Counsel for the Defence attended Court to confirm the JPT date of January 6, 2021, and the matter was adjourned to January 26, 2021, to allow the JPT to take place and to arrange a trial date.
• 6 January 2021: JPT conducted and counsel agree to one day trial estimate.
• 14 January 2021: Scheduled meeting with TC to select a trial date. TC offered November 5, 2021 as the first available trial date. Crown and Defence both accept this date.
• 26 January 2021: Fourth Court Appearance: Counsel for the Defence attended Court to schedule the trial date. Matter adjourned directly to the trial date of November 5, 2021.
• 5 November 2021: Fifth Court Appearance/First Trial Date: Trial commenced. Defence Charter application summarily dismissed. Examination-in-Chief of first Crown witness started but did not finish. Matter adjourned to December 9, 2021 for trial continuation.
• 9 December 2021: Sixth Court Appearance/Second Trial Date: Matter did not proceed. Crown gave priority to another case involving an allegation of child sexual assault. Crown and Defence counsel provided their available dates for January, February, and March 2022 to the TC. TC offered March 23, 2022 for trial continuation. Counsel confirmed the date on the record and Defence counsel provided verbal notice in Court that a s. 11(b) application may be brought.
• 23 March 2022: Seventh Court Appearance/Third Trial Date: Anticipated end date of the trial.

The Jordan Analytical Framework

[22] An accused’s right to a trial within a reasonable time is guaranteed by s. 11(b) of the Charter. In R. v. Jordan [^5], the Supreme Court of Canada established a presumptive ceiling beyond which delay is presumptively unreasonable. The Court set the presumptive ceiling at 18 months for cases going to trial in the provincial court.

[23] In R. v. Coulter, the Ontario Court of Appeal summarized the Jordan framework for s. 11(b) applications as follows:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
• Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
• Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
• Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [^6]

Defence Delay:

[24] The two components of defence delay are “delay waived by the defence”, and “delay that is caused solely by the conduct of the defence”. [^7]

[25] As the Supreme Court of Canada explained in Cody, “the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113)”. [^8] The Court went on to say that, “[i]t applies to any situation where the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66)”. [^9]

[26] The Ontario Court of Appeal described it as follows:

Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64). [^10]

[27] Defence actions legitimately taken to respond to the charges do not constitute defence delay. [^11] The determination of whether defence conduct is legitimate is "by no means an exact science" and is a highly discretionary assessment made by the trial judge. [^12]

Exceptional Circumstances:

[28] The Court in Jordan described exceptional circumstances as follows:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [^13]

[29] The two general categories of exceptional circumstances are “discrete events” and “particularly complex cases”. [^14] The Court in Jordan stated that, once the ceiling is breached, the Crown cannot simply point to a past difficulty, “[i]t must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”. [^15]

[30] The Court gave examples of steps that the Crown could take:

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. [^16]

[31] It is left to the trial judge to determine how much, if any, time is subtracted from the net delay for discrete, exceptional events that arise, keeping in mind that the Crown and the justice system must be prepared to mitigate the delay resulting from a discrete exceptional circumstance:

Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [^17]

Analysis

The Start Date for Calculating Total Delay:

[32] Eleven days elapsed between Mr. McCudden’s arrest (July 18, 2020) and the date on which the informations were sworn (July 28, 2020). The Crown and Defence joined issue on whether the time should run from Mr. McCudden’s arrest or the date the informations were sworn.

[33] The Jordan framework was meant to do away with the “doctrinal and practical difficulties” that plagued the analytical framework that existed pre-Jordan. [^18] At the heart of the Jordan framework is the presumptive ceiling. The Supreme Court of Canada drew a line in the sand beyond which delay is presumed to be unreasonable.

[34] The starting point for calculating delay in this framework is “the date of the charge”. [^19] On a Jordan s. 11(b) application, every day matters and can have significant consequences on the determination of the application. As a result, the start date for the calculation of total delay has been the subject of litigation, particularly in the context of impaired driving cases.

[35] In R. v. Kalanj [^20], the Supreme Court of Canada specifically addressed the question of when a person is “charged with an offence” within the meaning of s. 11(b). [^21] The Court conclusively held that a person is “charged with an offence” within the meaning of s. 11(b) “when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn”. [^22]

[36] Proponents of the position that the time should run from the date of the arrest, especially in the context of impaired driving cases, point to paragraph 19 of Kalanj where McIntyre J. for the majority stated:

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter [emphasis added]. [^23]

[37] However, in my view, when this passage in Kalanj is read in context, it does not support the argument that delay from the time of arrest can be considered in the s. 11(b) calculation. I make this finding with all due respect to very learned judges and colleagues who hold a different view. [^24] Arguments in favour of using the date of the arrest include the fact that an accused is subject to the obligations imposed by his release even before the swearing of the information and is engaged in the criminal justice system from the time of his arrest.

[38] In Kalanj, the appellants were arrested without warrants on May 5, 1982. The Court noted the detrimental consequences visited upon the appellants after their arrests:

Following their arrests, the appellants were finger printed and placed in police cells but were released later the same day. They were told not to leave the city and were informed, as well, that charges would be laid and that a summons would issue. The arrests were made at the appellants' places of business; they received wide publicity and there can be no doubt that the appellants suffered grave embarrassment. The trial judge found that prior to being charged, but after arrest and release, both appellants and their families suffered serious trauma and public embarrassment because of these arrests. [^25]

[39] Therefore, from the date of their arrests, the appellants were subject to restrictions, including being told not to leave the city. They were told that the court process was imminent and that charges would be laid. On January 14, 1983, eight months and nineteen days after the arrests, an information was sworn alleging that the appellants had committed the offences of theft and conspiracy to commit theft. [^26]

[40] Kalanj is not an impaired driving case and is factually distinguishable to a case like Mr. McCudden’s. However, it is important to consider what the Supreme Court of Canada said about the appellants’ argument that they were “charged” for s. 11(b) purposes on the date of their arrest. The Court stated:

A person could be considered in a general or popular sense to be charged with an offence when informed by one in authority that "you will be summoned to court" or upon an arrest when in answer to a demand to know what all this is about an officer replies: "You are arrested for murder". There are many other occasions when in the popular mind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada (1988), the word "charge" has no precise meaning at law but merely means that steps are being taken which in the normal course will lead to a criminal prosecution. However, despite what may be termed the imprecision of the word "charge" or the phrase "a person charged", the courts are faced with the task of developing a meaning of the word as used in s. 11 of the Charter [emphasis added]. [^27]

[41] The Court in Kalanj was clear that pre-information delay is not a factor to consider on a s. 11(b) application, and that s. 11(b) “gives a Charter remedy for delay when a prosecution has been initiated” [^28] by the swearing of an information. It is important to note that, in reaching this conclusion, the Court considered that there are other sections of the Charter that protect the accused’s rights before the information is sworn:

This construction is supported by the words of the Charter and, as well, upon a consideration of its organization and structure. Section 11 is one of eight sections grouped under the heading of "Legal Rights". Section 7 guarantees the general "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". This section applies at all stages of the investigatory and judicial process. Sections 8 and 9 afford guarantees of rights of particular importance in the investigatory or pre-charge stage, as does s. 10 which deals with rights upon arrest. Section 11 deals with a later stage of the proceedings, that is, when judicial proceedings are instituted by a charge. Sections 12 and 13 deal with matters which follow the trial, and s. 14 again refers to matters during trial.

In dealing with s. 11, it must first be recognized that it is limited in its terms to a special group of persons, those "charged with an offence". It deals primarily with matters relating to the trial. It is to be noted that s. 11 is distinct from s. 10 and serves a different purpose: the two sections must not be equated. The framers of the Charter made a clear distinction between the rights guaranteed to a person arrested and those of a person upon charge. Sections 8 and 9, as well, guarantee essential rights ordinarily of significance in the investigatory period, separate and distinct from those covered in s. 11. It has been said that the purpose of s. 11 should be considered in deciding upon the extent of its application. This purpose, it has been said, is to afford protection for the liberty and security interests of persons accused of crime. While it is true that s. 11 operates for this purpose, I emphasize that it does so within its own sphere. It is not, nor was it intended to be, the sole guarantor and protector of such rights. As stated above, s. 7 affords broad protection for liberty and security, while the other sections, particularly those dealing with legal rights, apply to protect those rights in certain stated circumstances. Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s. 11(b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with [emphasis added]. [^29]

[42] The Supreme Court of Canada provided clear direction on the start date for calculating s. 11(b) delay, specifically rejecting the notion that the clock runs from the date of the arrest. Any complaint by an accused that his rights were breached prior to the swearing of an information must find a home in another section of the Charter. [^30] This approach is one that provides certainty for those engaged in the exercise of applying the Jordan framework.

[43] It has been suggested that “the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to tick at the point when an Information is sworn or ought to have been sworn [emphasis in the original]”. [^31] With respect, such an approach could lead to protracted arguments over when an information “ought to have been sworn”, not only in the drinking and driving context, but in cases involving all criminal charges. For instance, would such an approach permit the Defence to delve into the exact point in time at which the arresting officer’s grounds crystalized to determine when the s. 11(b) clock should start? This would be contrary to the simplicity the Court in Jordan sought to introduce with its new framework.

[44] Kalanj is binding authority that the s. 11(b) clock runs from the swearing of the information. The Ontario Court of Appeal confirmed same in R. v. Milani [^32] and R. v. Wookey [^33].

Analysis of Defence Delay:

November 5, 2021 to December 9, 2021

[45] Crown counsel submits that this period of delay was caused by an exceptional circumstance -the trial was not completed within the one-day time estimate that counsel had agreed upon at the JPT. Defence counsel says that the Crown failed to take steps to mitigate the delay it caused by adding a step not contemplated at the JPT, the Crown’s request that I consider a summary dismissal of the Charter application. For the following reasons, I have considered this period under the category of defence delay.

[46] Mr. McCudden’s trial was scheduled to proceed for one day as a blended Charter voir dire and trial on November 5, 2021. Prior to trial, the Defence served and filed Charter materials setting out the alleged violations of Mr. McCudden’s rights and seeking exclusion of evidence, including the results of the breath testing which revealed the accused’s blood alcohol concentration. The Crown filed materials in reply and gave notice of its intention to ask me to exercise my case management powers, as set out in paragraph 38 of Cody, to summarily dismiss the accused’s Charter application on the basis that it had no reasonable prospect of success.

[47] On November 5, 2021, the trial started at 11:30 a.m.. [^34] I heard submissions on the Crown’s request that I summarily dismiss the accused’s s. 7, 8 and 9 Charter application. In accordance with Cody, I asked Defence counsel to summarize the evidence it anticipated eliciting in the voir dire to determine whether that summary of the evidence revealed a basis upon which the application could succeed.

[48] At the conclusion of submissions, Defence counsel conceded that he had alleged violations of ss. 8 and 9 of the Charter, without an evidentiary basis, as a “prophylactic” in case evidence arose on the blended voir dire and trial that might support such a claim. Defence counsel agreed that the portions of the Charter application alleging violations of ss. 8 and 9 should be dismissed, without prejudice to his right to renew the application if evidence arose at trial which disclosed a potential breach.

[49] After considering the submissions of counsel, I also dismissed the balance of the Charter application relating to the alleged s. 7 violation and gave oral reasons for doing so. In my oral reasons, I noted that the filing of “prophylactic” Charter applications, without an evidentiary basis, is contrary to the Criminal Rules of the Ontario Court of Justice which require a detailed statement of the factual basis for the application, specific to the individual proceeding. [^35]

[50] In short, the Crown was entirely successful in its bid to have the accused’s Charter application summarily dismissed. The balance of the November 5th court day was spent briefly addressing another matter and starting the evidence-in-chief of the arresting officer on Mr. McCudden’s case. The trial was not completed. The case was adjourned to December 9, 2021 for trial continuation. The parties anticipated that half a day would be required to complete the trial on December 9th.

[51] I start by noting that the Crown chose to deal with other court matters on November 5th before starting Mr. McCudden’s trial. I recognize that this cut into the time available on November 5th to complete the accused’s one day trial.

[52] However, once the trial began, the bulk of the remaining court day was spent hearing submissions on what I ultimately found to be a frivolous Charter application filed by the Defence. I followed the procedure outlined in Cody by asking Defence counsel to summarize the evidence he anticipated eliciting in the voir dire.

[53] Although these discussions I had with Defence counsel resulted in his concession that the portion of the Charter application dealing with ss. 8 and 9 should be summarily dismissed, he maintained that I should permit the s. 7 application to proceed. This required me to hear submissions from counsel and stand down to rule on the issue. I ruled that the s. 7 application had no prospect of success. The Defence failed to provide an evidentiary basis to support the claim that the police violated Mr. McCudden’s s. 7 right to life, liberty, and security of the person by failing to wear and provide face masks to Mr. McCudden to guard against the transmission of COVID-19.

[54] It is difficult to know whether Mr. McCudden’s trial would have finished on November 5th if Defence counsel had not filed the frivolous Charter application and the trial had proceeded without the need to hear submissions and rule on the summary dismissal motion. However, I reject Defence counsel’s suggestion that the Crown caused the delay between November 5th and December 9th by adding a step in the trial and then failing to contact the TC for continuation dates, knowing that the trial was unlikely to be completed within the one-day estimate. Frivolous applications were recognized as a straightforward example of defence delay in Jordan. I attribute 35 days (November 5th to December 9th, 2021) to the Defence.

February 1, 2022 to February 28, 2022:

[55] On December 9, 2021, the Defence attended Court ready to complete the trial. The Crown preferred instead to use the court day for oral arguments on a third-party records application in a child sex assault prosecution.

[56] When it became evident that the trial would not be reached on December 9, 2021, counsel exchanged e-mails with the TC to obtain a continuation date. The e-mail exchanges were made part of the evidentiary record on the s. 11(b) application. The TC asked counsel to provide her with their available dates in January and onwards and said that she would “try and make it work”.

[57] Crown counsel said she was available for all dates in January and onwards. Defence counsel provided the following dates that he was available:

• January: 13, 14, 18, 26, 26, 27, 28
• February: None
• March: 1-3, 8, 11, 14, 15, 18, 19, 21-3, 25, 28, 29

[58] The TC responded to counsel by e-mailing: “March 23, 2022 in 208 at 10 a.m.”. Crown and Defence counsel accepted the date and confirmed it on the Court record. Defence counsel raised the prospect of a s. 11(b) application if his review of the file warranted such an application.

[59] The Crown says that I should attribute the entire month of February to the Defence because the Crown was available to continue the trial in February, but the Defence had no available dates. However, the record is silent as to the availability of the Court for any continuation dates before March 23rd. Jordan held that where the Court and the Crown are ready to proceed, but the Defence is not, the Defence will have directly caused the delay.

[60] The Crown submits that, since the TC asked for dates from January onwards, there must have been dates that were available in February. This is pure speculation. The Crown made no efforts to confirm whether there were dates in February that the Court was ready to proceed with Mr. McCudden’s trial continuation. This is not a case like R. v. Williamson [^36] where the Court offered earlier dates that the Defence turned down because they were unavailable. There is no evidence before me to attribute the month of February 2022, or any portion of it, to the Defence as the Crown urges me to do.

[61] Although not necessary for my analysis of this time period, I note that the chart outlining the history of the proceedings, set out above, demonstrates that the Defence was diligent in moving Mr. McCudden’s case along at every stage of the prosecution, including on December 9th by offering seven dates of availability in January 2022 when the trial did not proceed because the Crown chose to deal with another case.

Calculation of Net Delay:

[62] The total delay in this case, from the date the informations were sworn to the anticipated end date of the trial, is 19.9 months or 604 days. I subtract 35 days of defence delay from this total, which leaves a net delay of 18.7 months or 569 days. The net delay exceeds the presumptive ceiling. The Crown must establish the presence of exceptional circumstances to rebut the presumption of unreasonable delay.

Analysis of Exceptional Circumstances: The COVID-19 Pandemic:

October 29, 2020 to January 6, 2021:

[63] On October 29, 2020, a Crown pre-trial was conducted. Defence counsel’s office e-mailed the TC the same day and obtained the first available date for a JPT, which was January 6, 2021. The Crown submits that the time between October 29, 2020 and January 6, 2021 must be attributable to the COVID-19 pandemic. As the Crown says in its materials, “the delay here should be assessed in the context of the impact of COVID-19 on the criminal justice system as a whole”. [^37]

[64] The COVID-19 pandemic has been recognized as a discrete exceptional event within the meaning of s. 11(b). [^38] It is undeniable that the pandemic created a backlog of cases and delay in the criminal justice system. The Crown relied upon the following passage in R. v. Simmons, a decision of Nakatsuru J., to support its position that the time period between the Crown pre-trial and JPT, or at least some portion of it, should be attributed to COVID-19 as a discrete exceptional circumstance:

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. [^39]

[65] Nakatsuru J. eloquently described the undeniable impact the pandemic has had on the criminal justice system, including a backlog of cases. However, Courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic.

[66] The Crown has adduced no evidence to establish that the COVID-19 pandemic caused the 70-day delay from the time of the Crown pre-trial to the JPT. For example, no statistics were produced to show that prior to the onset of the pandemic, an accused person could obtain a JPT sooner than the 70 days it took for Mr. McCudden’s matter to be judicially pre-tried. There was no information presented on this application which would permit me to find that this 70-day period, or any portion of it, should be attributed to the pandemic as a discrete exceptional circumstance. Had evidence been led to show that it took longer to obtain a JPT date after the onset of the pandemic than it did pre-pandemic, the result may have been different.

Calculation of the Remaining Delay:

[67] There are no delays caused by discrete events to subtract from the net delay. Therefore, the remaining delay is 18.7 months or 569 days, which exceeds the presumptive ceiling. The Crown makes no claim that this was a particularly complex case.

Conclusion

[68] Mr. McCudden’s right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter was breached. A stay of proceedings is entered under s. 24(1) of the Charter.

A Final Note

[69] In 2016, the Supreme Court of Canada stated that real change in responding to the challenges facing timely justice required “the efforts and coordination of all participants in the criminal justice system.” [^40] The Supreme Court of Canada included provincial legislatures and Parliament amongst those participants:

Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced. [^41]

[70] As I write these reasons, trial dates in the Hamilton Ontario Court of Justice are being scheduled beyond the Jordan presumptive ceiling every day, with some of the participants in the criminal justice system working feverishly to patch the cracks in the dam.

Released: March 25, 2022 Signed: Justice J.P.P. Fiorucci

Footnotes

[^1]: On March 23, 2022, I advised the parties that I was granting Mr. McCudden’s s. 11(b) application and staying the proceedings, and that I would release written reasons. These are my reasons. [^2]: Crown and Defence counsel both asserted that Information No. 20-4676 (80 and over) was sworn on July 27, 2020. A review of the Information reveals that it was affirmed by Justice of the Peace K. Visser on July 28, 2020. [^3]: R. v. Cody, 2017 SCC 31, at para. 38. [^4]: I have amended the calculations the Crown used in its materials to account for the sworn date being July 28, 2020, not July 27, 2020. I have also used the formula set out in R. v. Shaikh, 2019 ONCA 895, footnote 2, for converting days to months by dividing by 30.417, which is approximately 365/12. As in Shaikh, I have rounded month figures to one decimal point. [^5]: R v. Jordan, 2016 SCC 27 (S.C.C.), at paras. 5 and 46. [^6]: R v. Coulter, 2016 ONCA 704, at paras. 34-40. [^7]: R. v. Jordan, supra, at paras. 61 and 63; R. v. Cody, supra, at para. 26. [^8]: R. v. Cody, supra, at para. 28. [^9]: Ibid, at para. 28. [^10]: R. v. Coulter, supra, at para. 44. [^11]: R. v. Jordan, supra, at para. 65. [^12]: R. v. Cody, supra, at para. 31. [^13]: R. v. Jordan, supra, at para. 69. [^14]: Ibid, at para. 71. [^15]: Ibid, at para. 70. [^16]: Ibid, at para. 70. [^17]: Ibid, at para. 75. [^18]: Ibid, at para. 4. [^19]: Ibid, at para. 47. [^20]: R. v. Kalanj, [1989] S.C.J. No. 71 (S.C.C.). [^21]: Ibid, at para. 9. [^22]: Ibid, at para. 16. [^23]: Ibid, at para. 19. [^24]: See for example: R. v. Gill, 2020 ONCJ 124; R. v. Egorov, [2005] O.J. No. 6171 (Ont. C.J.); R. v. Mikhailov, 2020 ONCJ 507; R. v. Luoma, 2016 ONCJ 670; R. v. Sawh, 2021 ONCJ 15. [^25]: R. v. Kalanj, supra, at para. 2. [^26]: Ibid, at para. 3. [^27]: Ibid, at para. 11. [^28]: Ibid, at para. 16, citing Argentina v. Mellino, [1987] 1 S.C.R. 536 (S.C.C.), at p. 548. [^29]: Ibid, at paras. 17-18. [^30]: See for example, R. v. Hunt, 2016 NLCA 61, at paras. 66 and 72, where the Court observed that Kalanj decided that pre-charge delay concerned s. 7 rather than s. 11(b). [^31]: R. v. Luoma, supra, at para. 29. [^32]: R. v. Milani, 2014 ONCA 536, at paras. 22 and 26, leave to appeal refused, [2014] S.C.C.A. No. 426. [^33]: R. v. Wookey, 2021 ONCA 68, at paras. 53-55. [^34]: Court was scheduled to commence at 10:00 a.m.. However, Crown counsel (not Ms. Kim), who had carriage of the other matters on the court docket, asked for a brief indulgence due to an issue that arose prior to Court. Court started at approximately 10:20 a.m.. The Crown then chose to address other matters on the list before commencing Mr. McCudden’s trial. Mr. McCudden’s trial started at 11:30 a.m.. [^35]: Rule 2.1(2)(c) of the Criminal Rules of the Ontario Court of Justice. [^36]: R. v. Williamson, 2016 SCC 28, at paras. 21-22. [^37]: Respondent’s Factum, para. 37. [^38]: R. v. Simmons, 2020 ONSC 7209, at paras. 59-77. [^39]: Ibid, at para. 70. [^40]: R. v. Jordan, supra, at para. 137. [^41]: Ibid, at para. 140.