Court Information

ONTARIO COURT OF JUSTICE DATE: 2022 04 14 COURT FILE No.: Brampton 20-4832

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— and —

KIM TRAN Applicant

Before: Justice M.M. Rahman

Heard: March 29, 2022 Reasons for ruling released on: April 14, 2022

Counsel: Nazampal Jaswal, counsel for the respondent Mary Waters Rodriguez and Eugene Bhattacharya, counsel for the applicant

RAHMAN J.:

Introduction

[1] The applicant, Kim Tran, is charged with assault. He applies for a stay of proceedings on the grounds that there has been unreasonable delay in bringing his charges to trial.

[2] Mr. Tran was arrested on March 23, 2020. His matter was subject to five presumptive adjournments that took place during the early stages of the restricted operation of this court, from May 26 to December 22, 2020. His trial was initially scheduled to take place on September 13 and 14, 2021. The Crown successfully applied to adjourn those trial dates because one of its witnesses had become unavailable. The applicant’s trial was rescheduled for May 11 and 12, 2022. The total delay from the time of the applicant’s arrest [1] to the time the evidentiary portion of his trial is scheduled to finish is 25 months and 20 days.

[3] The applicant says that there has been no defence delay in this case. The applicant argues that the unavailability of the Crown’s witness should not be considered an exceptional circumstance that will allow time to be deducted from the total delay. The applicant argues that the unavailability of the witness was not unforeseen. The applicant also observes that the Crown did not act in a timely way when it became aware of its witness being unavailable for the September 2021 trial dates. Further, the applicant says that the Crown did not mitigate the delay, as it is required to do when a discrete event arises. Alternatively, the applicant says that, even if the delay is below the presumptive ceiling, his trial had been unreasonably delayed because it has taken markedly longer than it should have and the defence has taken meaningful and sustained steps to expedite the trial.

[4] The Crown, respondent, argues that the remaining delay in this case is below the 18-month Jordan [2] ceiling once defence delay and exceptional circumstances are accounted for. The Crown says that 257 days should be subtracted because its witness became unexpectedly unavailable. The bulk of that time was the almost eight months between the initial trial dates that were set and the new dates this May. The Crown says it took steps to mitigate the delay by setting the new date without regard to the assigned Crown counsel’s availability and only according to the officer’s leave dates. The Crown also says that if the remaining delay is below the ceiling the applicant cannot demonstrate that the delay is unreasonable.

[5] These reasons explain why I find that the applicant’s s. 11(b) Charter rights have been violated because the Crown cannot justify the excessive delay.

Calculation of Delay

[6] The parties agree that the total delay in this case is 25 months and 20 days. Because the parties’ disagreement about defence delay only concerns about 55 days, I need not need decide whether there was any defence delay in this case. Even if the Crown’s calculation of defence delay is correct, the net delay in this case is over the presumptive ceiling (23 months and 24 days). This application turns on whether the Crown can rely on a discrete event as an exceptional circumstance that justifies delay that is over the ceiling.

Discrete Event

[7] As mentioned above, the Crown argues that the unavailability of a police witness is a discrete event that should lead to subtracting over eight months of delay from the total delay in this case. The Crown does not rely on the COVID-19 pandemic in this case to justify this lengthy period of delay. [3]

[8] The police witness in this case was required by the Crown for a voluntariness voir dire. That witness was pregnant and her due date was August 14, 2021. When the trial date was initially set, this would not have posed a problem for her to testify at the trial. However, the police witness was advised by her doctor that she required an additional six-week recovery period after her delivery and therefore not able to attend the trial on September 13 and 14. She said in her affidavit that she would be available after September 27, 2021.

[9] The officer swore an affidavit on June 28, 2021 explaining the reasons for her unavailability. The Crown notified the defence on August 14, 2021 that it would be applying to adjourn the trial because of the officer’s unavailability. After receiving instructions from the applicant, defence counsel informed the Crown on August 23, 2021 that the defence would oppose the adjournment request. The Crown served its adjournment application materials the next day and brought the application on August 27, 2021.

[10] The adjournment application was heard by my colleague, Maund J., on August 27. During submissions on the adjournment application, Crown counsel said, “[t]he Crown’s submission is that it will be a very brief adjournment, and hopefully we can get some other trial dates on the record after September 27 [when] the OIC is available.” The defence commented that the Crown’s hope to get early trial dates was “overly optimistic.” In granting the Crown’s adjournment application, Maund J. addressed the following remarks towards Crown counsel about trying to expedite the trial because of potential delay concerns:

I strongly recommend, if the Crown is speaking to the trial coordinator about a new trial date, that you tell [the trial coordinator] that this is, in my view, a very important case to expedite. Expedite means find dates right away if you want to keep it alive.

[11] After another couple of appearances, the new trial dates of May 11 and 12, 2022 were set. According to the trial scheduling form, these dates were the only ones offered. No earlier dates appear to have been available. The record is silent about what communication, if any, the Crown had with the trial office to expedite the scheduling of this matter. Ironically, when the trial date was officially set on the record, Crown counsel addressing the matter noted that the trial dates fell outside the presumptive ceiling and alerted the defence about the need to schedule any delay application 60 days before the trial dates.

Analysis

[12] Although I agree with the respondent that the officer’s unavailability can be called a discrete event, I cannot agree it has met its onus to justify the delay because of this event.

[13] The officer’s unavailability here was not expected and was due to health reasons. It is exactly the kind of circumstance that the Supreme Court referred to as a discrete event. [4]

[14] However, a discrete event does not automatically lead to delay being subtracted. Even where unforeseen events happen, the Crown has a responsibility to take steps to minimize the delay. As the Supreme Court held in Jordan, the Crown cannot simply point to a discrete event after the fact to justify the delay. The Crown must show that it took reasonable steps to address the problem, even if those steps are not ultimately successful.

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. 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.

[75] 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. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. 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). [5]

[15] The respondent argues that it took the step of setting new trial dates with only the officers’ leave dates, without regard to the availability of assigned Crown counsel. With respect, this is not the kind of step that the Supreme Court contemplated in Jordan. When Maund J. granted the adjournment, he urged the Crown to expedite the matter by letting the trial coordinator know that His Honour said the matter should be expedited. There is nothing in the record to suggest that the Crown took my colleague’s advice. Nor is there any explanation why the Crown did not follow his advice. [6] Crown counsel’s comments when the new trial dates were set show that the Crown was alive to the fact that the new trial dates were outside the 18-month presumptive ceiling and that the defence might bring a s. 11(b) application. And yet there is no indication that it took any steps to mitigate the delay.

[16] Discrete events are those events that are unforeseen and outside of the Crown’s control. Where delay exceeds the ceiling, Jordan makes clear that the Crown must show “that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control.” [7] Therefore it makes sense that, in order to rely on a discrete event to reduce the net delay, the Crown must do what is within its control to try and mitigate the effects of the delay. The Jordan framework was meant to clarify “the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time” and to motivate the Crown “to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.” [8] The Crown did not meet that constitutional obligation here.

[17] Therefore, I am not satisfied that the eight-month delay caused by the adjournment of the original trial date should be subtracted.

Conclusion

[18] The delay in this case exceeds the presumptive ceiling. The Crown has not met its onus to justify the delay. The application is granted and the charge against the applicant is stayed.

Released: April 14, 2022 Justice M.M. Rahman

Footnotes

[1] The Crown agreed with the applicant’s position that the calculation of time should begin on the date of the applicant’s arrest, rather than the date the information was laid in May.

[2] R. v. Jordan, 2016 SCC 27.

[3] The only portion of delay that the Crown attributed to the pandemic is the extra time that it takes to conduct scheduling conferences to set trial dates. The Crown did not rely on the period of presumptive adjournments that took place early on in the life of this case to justify the delay. That is likely because disclosure was not complete until November 2020.

[4] Jordan, supra, at para. 72 (“it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.”).

[5] Jordan, supra, at paras. 70 and 75.

[6] As with most jurisdictions, in Brampton the Crown may effectively bump other cases by giving priority to cases that require it. The Crown can request the intervention of a judge to set a matter for trial by stacking it on top of an already full trial list.

[7] Jordan, supra, at para. 112.

[8] Ibid.