ONTARIO COURT OF JUSTICE

DATE: 2022 04 25 COURT FILE No.: 4817 998 21-75000685

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Herbert Meawasige

Before: Justice Thomas

Heard on: March 17, 2022 Oral Reasons for Judgment, released on: March 31, 2022 Written Reasons for Judgment, released on: April 25, 2022

Counsel: Ellie Minchopoulos ........................................................................... counsel for the Crown Deanna Cristovao.................................. counsel for the defendant Herbert Meawasige

L. Thomas J.:

[1] On February 9, 2021, the Applicant, Herbert Meawasige, was arrested and charged with assault, assault with a weapon and three counts of failing to comply with probation.

[2] The Applicant’s trial is not expected to conclude until August 30, 2022, 18 months and 22 days after his charge.

[3] Contrary to the Crown’s submissions, I do not find that there was any more than four days of defence delay.

[4] In this case, the Crown did not provide evidence of any effort to mitigate the delay in this case. Accordingly, I will be granting the Applicant’s motion to stay the charges based on the section 11(b) violation.

Summary of Proceedings

February 9 – May 7, 2021

[5] This period is appropriately classified as part of the initial intake period. The Applicant was waiting for funding from Legal Aid. However, counsel Deanna Cristovao attended on the first appearance post-bail to advise that the application had been made. Ultimately, Legal Aid approved funding on May 6, 2021.

[6] In the interim, on March 19, 2021, the Crown had made disclosure available on the Digital Disclosure Hub. The Crown’s office must authorize access first for an accused person or lawyer to access the disclosure on the Hub.

[7] There was no evidence that the Crown notified the Applicant or potential counsel for the Applicant until May 7, 2021 appearance.

[8] On the May 7, 2021 appearance, the Crown advised for the first time that disclosure was available. However, the complainant’s video statement was not available until that afternoon at 3:10 p.m. Two minutes later, Counsel for the Applicant accessed all the disclosure waiting on the Hub, including the disclosure uploaded in March.

[9] The evidence was not complete until July 29, 2021.

May 7 – September 24, 2021

[10] Between May 7 and July 6, 2021, Counsel reviewed disclosure and sought instructions from the Applicant on how to proceed.

[11] On July 6, 2021, Ms. Cristovao requested a Crown pretrial between July 12 and 14, 2021. The response from the Crown’s office response was a request for later dates in July. The Crown’s office offered July 29, the last day provided by Ms. Cristovao.

[12] On July 29, 2021, the Crown booked the Judicial pretrial for September 20, 2021. There was no evidence as to why the pretrial was booked almost two months later, whether due to the Crown or Court schedule. This was the first Judicial pretrial date offered to the Defence.

[13] Following the pretrial on July 29, the Defence requested further disclosure: In-car camera videos, notes of officers, including the arresting officer and the 911 call. All of which were uploaded on the Digital Disclosure Hub an hour after the Crown pretrial.

[14] The Defence did not seek the trial days until September 24, 2021, four days after the Judicial pretrial. Based on the evidence before me, there was some confusion about whether the Defence had to wait for the Judicial pretrial form to start scheduling the dates. In College Park, that is not a requirement.

[15] At best, this is the only time that could be allocated to the Defence-only delay. However, requiring only the Defence to send in a form to schedule the date seems counteractive to the responsibility of both parties to keep the matter proceeding.

[16] Further, I would note that the Defence reached out to the Crown when she had not received the JPT form. There is no evidence the Crown attempted to commence the scheduling when the Defence had not.

[17] On September 24, 2021, emails were exchanged between counsel and the trial coordinator’s office. The first dates offered for the two-day matter were August 29-30, 2022. The Crown requested other dates, including earlier dates, but advised the Crown was not available until September 28, 2022.

[18] When the Defence mentioned an 11(b) Application must be scheduled, the Crown agreed to proceed on the earlier dates. The Crown further requested that the trial coordinator advise if earlier dates become available. The trial coordinator responded that their office does not monitor dates for matters. However, the Crown could send an email to inquire.

[19] The Crown did not follow up at any time to seek earlier dates.

[20] The assigned Crown at the time, not Ms. Minchopoulos, had the case reassigned to Ms. Minchopoulos. Unfortunately, I do not have evidence as to when that occurred.

Legal Framework

[21] In R. v. Jordan, 2016 SCC 27, the Supreme Court stated that a trial delayed more than 18 months was presumptively unreasonable. The net calculation is the total delay subtracting any defence-only delay. That is when the only party unable to proceed was the Defence.

[22] Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness based on exceptional circumstances.

[23] If the Crown can rebut the presumption, any period of delay that was or could have been reasonably mitigated should be deducted from the delay calculation. If the delay is below the presumptive ceiling, the Defence has the burden to prove it made sustained efforts with meaningful steps to expedite the proceedings, and the case took markedly longer than it would have reasonably taken otherwise.

[24] Exceptional circumstances occur when events lie outside the Crown’s control. They are reasonably unforeseen or reasonably avoidable, and the Crown cannot reasonably remedy the delays stemming from the circumstance. There are two categories of exceptional circumstances: discrete events and particularly complex cases (Jordan, paras. 69-71).

[25] The Court was clear that it was not enough for the Crown to point to a past difficulty. To rebut the presumption, the Crown “ must show it took all reasonable steps to avoid and address the problem of delay before the delay exceeded the ceiling”, even if those efforts were unsuccessful (Jordan, para 70). [1]

Covid-19

[26] The pandemic is without question a discrete event that has caused delay in the courts, particularly in 2020.

[27] The Crown has asked me to conservatively deduct 60 days due to covid, as occurred in the unreported case of R. v. Hamidi. However, I find that approach is contrary to the method outlined by the Supreme Court and recently by the Alberta Court of Appeal.

[28] Further, the matters in Hamidi and other cases relied upon by the Crown, all matters commenced before the pandemic began. All justice participants were scrambling to adjust to the pandemic restrictions amongst court closures.

[29] However, this matter commenced in the midst of the pandemic. Therefore, while no trials and preliminary hearings were held between April 26 and May 21, 2021, the Crown was aware before the first Crown pretrial that matters scheduled during that time would be rescheduled in the future and cause delay.

[30] Further, the administrative courts and the disclosure distribution continued, as seen in this case.

[31] As stated recently in R. v. Ghraizi, 2022 ABCA 96, at para. 12:

We agree with both the trial judge and summary conviction appeal judge that Crown counsel illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan, at paras 74-75, once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system”.

[32] I cannot find the Crown took steps to mitigate delay in this case. I have no evidence as to why the Crown was unable to accommodate a Crown pretrial for 18 days or why it took almost two months to have a Judicial pretrial. Nor do I have any evidence that the Crown attempted to secure earlier dates for the Judicial pretrial.

[33] Further, while the Crown does not have to be successful, there must be some evidence of effort.

[34] However, at minimum, the Crown could have sought earlier dates from the trial coordinator, as suggested. That did not occur.

[35] While the Crown did not have the benefit of Ghraizi at the time of oral argument, the suggestion of evidence of mitigation is not new. See: R. v. Bui, 2021 ONCJ 379, at para. 44; R. v. Lawson, 2021 ONCJ 39, R. v. K.L, 2022 ONCJ 60; R. v. Schart, 2021 ONSC 3143, at paras. 58, 68; R. v. Greenidge, 2021 ONCJ 57, at paras. 34-36; R. v. Delaney, 2021 ONCJ 467, at para. 59; R. v. Brown, 2021 ONCJ 663, at paras. 34-38.

[36] In early 2021, in R. v. Ali, 2021 ONSC 1230, at para. 64, Justice Somji cautioned that the Crown will not be able to indefinitely rely on the pandemic as a justification for delay over the presumptive ceiling. Specifically, Justice Somji outlined the resilience of the criminal justice participants to be resilient and adapt to the pandemic. Accordingly, the Crown and the justice system will have to demonstrate that they are adopting reasonable measures to mitigate delay and protect the constitutional right of the accused to have a trial within a reasonable time.

[37] In considering Ali, I note this is my third case of 11(b) where the Crown has outlined Covid as an exceptional circumstance but has not provided any evidence of any mitigation for the delay caused by the pandemic. And other jurists in College Park have found the same, such as R. v. Brown.

[38] The Crown cannot continue to point to the pandemic as a discrete event without some evidence of mitigation or cause for specific periods. I make this point not in response to the Crown’s personal deficiency in presenting this case. Instead, I find that Ms. Minchopoulos was not provided with any evidence, as seen in Lawson, that would allow her to rebut the presumption.

[39] The Applicant’s 11(b) Application was granted, and the charges were stayed pursuant to s. 24(1).

Released: April 25, 2022 Signed: Justice Lori Anne Thomas

[1] Bolded emphasis added.