ONTARIO COURT OF JUSTICE
CITATION: R. v. Arth, 2022 ONCJ 216
DATE: 2022 05 05
COURT FILE No.: Hamilton 20-3294
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL ARTH
Before Justice Amanda J. Camara
Heard on April 19, 2022
Reasons for Judgment released on May 5, 2022
Sheena MacDougall........................................................................... counsel for the Crown
Jessica Read........................................................................ for the defendant Michael Arth
Camara J.:
[1] This is an application by Mr. Arth 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).
I. Introduction and Position of the Parties
[2] The Applicant is charged with impaired operation contrary to s. 320.14(1)(a) of the Criminal Code.
[3] Mr. Arth’s trial dates were scheduled for September 16 and 17, 2021. The matter was to be conducted as a blended trial and Charter application. Although the matter was addressed on September 16, the trial did not commence until late in the day on September 17, 2021. `
[4] The trial has been scheduled to continue on May 11 and 12, 2022.
[5] The total delay in this matter is 764 days or 25 months and 4 days. The Applicant concedes 45 days of defence delay and argues that 91 days of delay ought to be considered an exceptional circumstance caused by the COVID-19 pandemic. The resultant delay exceeds the 18-month ceiling and inverts the onus onto the Crown to justify the presumptively unreasonable delay.
[6] The Crown’s position is that there is an additional 20 days to be deducted from the total delay as an exceptional circumstance caused by the COVID-19 pandemic. Additionally, the Crown asserts that there is an additional delay of 236 days caused by the “adjournment” which resulted from the unavailability of the Officer-in-Charge. Alternatively, the Crown submits that the time between the first adjournment dates for which the Crown and the court were available, but Defence was not, and the last day of the re-scheduled trial,117 days, should be deducted as defence delay. The Crown argues that the resultant delay is below the Jordan ceiling.
II. History of the Proceedings
[7] The following is a summary of the significant dates within the case chronology:
March 14, 2020
Offence Date
March 23, 2020
Counsel requested initial disclosure
April 8, 2020
Information Sworn
April 20, 2020
First Appearance
Disclosure not available
Presumptive adjournment
May 4, 2020
Counsel made second request for initial disclosure
Counsel received initial disclosure following second request
May 12, 2020
Counsel received breath test video
May 15, 2020
Counsel made third request for missing disclosure including booking, cell video and scene photos
May 18, 2020
Counsel scheduled and conducted a Crown Pre-trial during which defence highlighted the missing disclosure
May 25, 2020
Counsel scheduled a JPT accepting the first date offered of June 9, 2020
May 29, 2020
Counsel received the booking, in-cell videos
June 9, 2020
JPT conducted and 2 days of trial time was estimated.
June 29, 2020
Second Appearance
Presumptive Adjournment
Out of custody dates unavailable to be set as per the Ontario Court of Justice directive.
Sept 14, 2020
Third Appearance
Presumptive Adjournment
Out of custody dates unable to be set as per the Ontario Court of Justice directive
Sept 28, 2020
The Ontario Court of Justice resumed the scheduling of trial dates for out-of-custody accused.
October 5, 2020
Agent for counsel contacted the trial coordinator to obtain a date for the first available trial scheduling conference. The Trial Coordinator provided October 16, 2020, as the next available date to canvass trial dates
October 16, 2020
Trial scheduling conference was held. First trial dates offered were August 9 and August 10, 2021. Defence counsel was unavailable on August 10, 2021 due to a previously scheduled trial. The next dates offered were Sept 16 and 17, 2021 and were accepted by all parties.
October 19, 2020
Fourth Appearance
The Crown elected summarily. Agent for counsel filed the Trial Verification Form. Matter adjourned to the trial dates
Sept 16, 2020
Day 1 of scheduled trial date
Counsel prepared and was present at 10:000. Trial did not commence until 3:00 pm as the Crown had prioritized commencing another trial matter over the Applicant’s matter.
When the Applicant’s matter commenced, the Crown unexpectedly and without notice, indicated that the OIC, who arrested the accused, would not be appearing at trial to testify. The Crown withdrew count 2 (80+ charge) and indicated they would only be proceeding on count 1 on the information (Impaired Operation)
Defence counsel sought an adjournment. Matter adjourned to Sept 17, 2020
September 17, 2020
Day 2 of scheduled trial date
Defence counsel was ready to proceed at 10:00 am. A non-trial matter was prioritized.
Matter not addressed until 2:15.
When it was addressed, submissions made regarding the Crown application to dismiss the Charter and on the defence adjournment application. The Court dismissed both applications and Mr. Arth was arraigned at 3:00pm.
One civilian witness testified. Crown had dismissed other witnesses. TC unavailable to reschedule the trial
September 20, 2020
TC was consulted and the first 2 days offered to continue were Jan 13 and 14, 2022. Defence counsel unavailable.
Defence counsel offered Jan 10 and 11, 2022 but the dates unavailable to the court.
The TC offered January 17 and 18. Defence counsel was available for the 17th but not the 18th.
Dates of Feb 15 and 24 unavailable to defence.
May 10 and 11, 2022 accepted as the soonest available dates
May 11, 2022
The anticipated date of trial completion.
III. The 11(b) Analytical Framework
[8] The Applicant’s right to a trial within a reasonable time is guaranteed by Section 11(b) of the Charter of Rights and Freedoms.
[9] The Supreme Court of Canada held in Jordan[^1] that there is a presumptive ceiling on the time it should take to bring an accused to trial. In the Ontario Court of Justice, this presumptive ceiling is 18-months[^2].
[10] How to apply the framework was summarized in Coulter[^3] as follows:
i) Calculate the total delay, from the charge to the anticipated end of trial
ii) Subtract from this total delay any defence delay to get the net delay
iii) Compare this net delay to the presumptive 18-month ceiling
iv) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The Crown can rebut this presumption if it can establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases
v) 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
vi) 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.
vii) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
IV. The Start Date for Calculating Total Delay
[11] The starting point for calculating delay in the 11(b) framework is “the date of the charge”[^4]. 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) in R v. Kalanj[^5]. 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[^6].
[12] 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. Kalanj is binding authority that the 11(b) clock runs from the swearing of the information.[^7]
V. The Applicability of Jordan Principles for the Calculation of Defence Delay
[13] The defence concedes the delay that resulted from September 28, 2020 to October 5, 2020 (8 days) and from August 10, 2021 to September 17, 2021 (39 days).
[14] The Respondent asserts that an additional period of time ought to be attributed to the defence. Specifically, the period between January 14, 2022 and May 11, 2022 (117 days) when the Court and the Crown were available for the trial continuation, but the defence was unavailable. The Respondent argues that the defence ought to bear responsibility for the delay caused by defence counsel’s unavailability. In support of their argument the Respondent relies upon R v. Williamson[^8] and R v. Cody[^9]. The Court, in both cases, addressed delays in setting the trial dates at first instance.
[15] In my view, the reasoning in Cody and Williamson is factually distinguishable from the case at bar because in the case before me continuation trial dates were being set – not first instance trial dates. The reason that continuation dates were necessary is an important factor to consider when “assigning blame”[^10] in the 11(b) analysis.
[16] The starting point to this contextual analysis is to consider how the SCC defined defence delay. In Jordan, the SCC identified the two components of defence delay:
Delay waived by defence
Delay caused solely by the conduct of defence[^11]
The court explained that delay caused solely by the conduct of the defence comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial”[^12]. The SCC in Cody elaborated on the definition of defence delay by including an oft cited example: “ where the court and Crown are ready to proceed, but the Accused is not”.[^13] The SCC added a qualification to that example in Boulanger:
This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resultant delay is attributable to the defence (para 64). All participants in the criminal justice system, including the defence, must take a ‘proactive approach in order to prevent unnecessary delay by targeting its root causes (Cody, at para 36). That being said, in some cases, the circumstances may justify apportioning responsibility for delay among those participants rather than attributing the entire delay to the defence[^14].
Factually the court in Boulanger was faced with a situation where further dates were required for the completion of the trial, and the defence was unavailable on certain dates. The SCC concluded that the majority of the Ontario Court of Appeal was correct in holding that this period of delay could not be entirely attributed to the defence, despite the fact that his counsel was unavailable on certain dates. The Court held that it was fair and reasonable for the Court of Appeal to have apportioned responsibility for half of the delay in that period to the defence.
[17] Since Boulanger, the Ontario Court of Appeal in Hanan,[^15] grappled with reconciling the definition of defence delay and how to apportion periods of time following a rescheduling of the trial or setting of continuation dates. The Ontario Court of Appeal has emphasized that the “bright-line” rule that once the defence is unavailable, all the delay until the next available date is characterized as defence delay is “inconsistent with the principles that the delay must be ‘solely or directly’ caused by the defence”[^16]. Specifically, the court held:
I would reject the ‘categorical approach’ proposed by the Crown that all of the delay following the rejection of a date offered by the Court must be characterized as defence delay and I agree with her statement that “it is necessary to consider the circumstances of [the] case”: at para 46. The Court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay[^17].
In Hanan, the defence sought a last-minute adjournment of the trial date because of the unexcepted refusal of the surviving victim to testify and the Crown’s late disclosure of the cell phone data. The court adjusted its schedule and offered dates to start the trial in June. Defence was scheduled on another matter and refused that 6-week block of time. The next dates offered were in October. The trial judge held that but for the specific 6-weeks refused, the remaining time in this period was not attributable to the defence. The Ontario Court of Appeal held that:
[T]he trial judge’s refusal to attribute more than 6-weeks to the defence was, in the circumstances of this case, a fair allocation and entirely appropriate considering that it was the trial adjournment that resulted in the need for new dates, and the continuation had no other dates available between June and October. In the circumstances, it would not have been ‘fair and reasonable’ to characterize as defence delay the remaining months when the court could not accommodate a trial. This was not delay that was “solely or directly” caused by the defence.[^18]
[18] Given the importance of the context for Mr. Arth’s matter not completing in the scheduled 2-days, it is necessary to review what specifically occurred on September 16, and 17, 2021 to determine whether the defence solely or directed caused the resultant delay.
[19] Putting aside for a moment the issue of the missing witness, the court was not in a position to address Mr. Arth’s trial until 3:00pm on September 16, 2021 because the Crown prioritized another trial matter. This decision cut into the time available on September 16, 2021 to hear Mr. Arth’s trial. Similarly on September 17, 2021, the Crown prioritized another matter being heard before addressing Mr. Arth’s matter. Mr. Arth’s matter was not addressed on September 17 until after the lunch break. Again, that decision cut into the time available on September 17, 2021 to hear Mr. Arth’s trial.
[20] As explained by Fiorucci J. in McCudden[^19], at paras 3-4:
[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 or having to be adjourned.
On both days Mr. Arth’s matter was scheduled for trial, this is what happened; other matters were prioritized which significantly cut into the time available to hear Mr. Arth’s trial matter.
[21] Compounding the challenge of the significantly reduced available court time, at 3:00 in the afternoon on September 16, 2021, the defence and the court were made aware that the OIC was not in attendance at court nor was there any information about when the OIC would be available to attend court. The Crown then advised that they were withdrawing the 80+ charge and would not be seeking to introduce any breath readings or any statements made the Applicant. This represented a very significant change in the prosecutions strategy and had a significant impact upon the defence strategy.
[22] Following the afternoon break, during which the Applicant first had the opportunity to discuss with his counsel how this missing witness would impact his case, the court received submissions regarding a defence application for an adjournment. The defence had properly served and filed their Charter Application, which had included the OIC as a witness and had planned the defence strategy around the anticipated testimony of the OIC. Counsel had followed up with the Crown the day before the trial date to ensure that the OIC was going to be present for the trial. Counsel’s communication to the Crown was met with silence.
[23] The Crown then indicated that it was their intention to argue that the Charter Application did not have a reasonable prospect of success since the Crown had already withdrawn the 80+ count and had undertaken not to seek to introduce any breath readings or statements by Mr. Arth.
[24] Both motions were adjourned to the next day – September 17, 2021. The Court sought more information about the OIC’s availability. The matter was remanded to the following day.
[25] As already explained, on September 17, 2021, another matter was prioritized by the Crown. The Court was not in a position to address Mr. Arth’s matter until 12:50pm. The Crown indicated it was ready to proceed with the trial. The Defence renewed its adjournment application since the OIC was again absent and the Crown was not aware of when the OIC would be available to attend court to testify. The Crown brought its application to have the defence’s Charter Application dismissed arguing that the application did not have a reasonable chance of success.
[26] Ultimately, I dismissed both applications[^20] and Mr. Arth was arraigned at 3:00 pm on September 17, 2021. The trial commenced with the Crown calling one witness. That witness finished testifying at 4:10 pm. The remaining Crown witnesses were not available, and the trial was unable to continue on September 17, 2021. The matter was remanded to obtain continuation dates. I find that neither Mr. Arth’s actions nor the conduct of defence counsel are to blame for this matter not completing within the 2-days allotted.
[27] That factual background, specifically, that the defence did not solely or directly cause the delay, is relevant in assessing the delay that ensued from the defence counsel’s unavailability. Context matters. The TC offered January 13 and 14, 2022 as the first available dates for the trial continuation. Counsel was unavailable both of those dates but did indicate availability earlier – January 10 and 11, 2022. The Court was unavailable for those two earlier dates. The TC offered January 17 and 18, 2022. Defence counsel was available for the 17th but not the 18th. The TC offered February 15 and 24, 2022 which were both unavailable to the defence. The dates of May 10 and 11, 2022 were ultimately agreed to by all participants. It is unknown, as I write this ruling, whether the OIC is available to attend the trial on those dates.
[28] In my view, it would be unfair to appropriation the entire period of delay in this time period to the defence because the defence did not cause the delay. There was nothing that the Applicant could have done to have had his trial completed in the 2-days allotted; he had no control over the court docket those two days. Following the reasons in Hanan, it is appropriate to attribute to the defence the specific days when the Court and Crown were available for the scheduling of the continuation dates, but the defence was not. I therefore attribute the following 6 days of delay to the defence: January 13, 14, 17, 18, February 15 and 24, 2022.
[29] The delay attributable to the defence is as follows:
▪ September 28, 2020-October 5, 2020 (8 days)
▪ August 10, 2021- September 17, 2021 (39 days)
▪ January 13, 14, 17, 18, February 15 and 24, 2022 (6 days)
The total delay attributable to the defence is 53 days.
VI. Calculation
[30] The total delay in this case, from the date the information was sworn to the date anticipated to be the last day for trial, is 764 days. From this total, 53 days of defence delay must be subtracted. The net delay is 711 days ( 23.4 months).
VII. Exceptional Circumstances: COVID-19
[31] The net delay exceeds the presumptive ceiling. The remaining analysis shifts to a consideration of whether any exceptional circumstances exist which could operate to reduce and make reasonable the overall delay. Exceptional circumstances fall into two categories: discrete events and particularly complex cases.
[32] The seriousness of the offence is not part of the analysis.[^21]
[33] Trial judges are instructed to be alert to the practical realities of trials, which can include unpredictable events. It is understood that unforeseeable or unavoidable breakdowns can happen, which bring the case to a halt and result in scheduling targets being exceeded.[^22] This case and the ability of counsel to move the case forward and set dates for motions and the trial was impacted by the COVID-19 pandemic. The Applicant and Respondent disagree as to how much time should be characterized as delay caused by COVID-19 and thus how much delay ought to be characterized as a discrete event.
[34] The Applicant argues that the period between June 29, 2020 to September 28, 2020 (92 days) ought to be attributed as an exceptional circumstance caused by the COVID-19 pandemic. The Respondent argues that the time attributed to the COVID-19 pandemic ought to commence June 9, 2020, since that was the day when the parties were ready to set the matter for trial and were unable to do so because the OCJ directive which did not permit the scheduling of out-of-custody matters.
[35] I agree with the Respondent. On June 9, 2020, the JPT had been conducted and the time estimate was completed[^23]. But for the COVID-19 pandemic and the resulting directives, this trial would have been able to be scheduled. Therefore, the delay that resulted from between June 9, 2020 to September 28, 2020 (112 days) ought to be considered a discrete event and deducted from the net delay.
[36] The Respondent also argues in the alternative the unavailability of the OIC was a discrete event. The unavailability of the OIC was not the cause for the trial not concluding the time allotted; the prioritization of the other matters on the docket was the cause. Although the Crown took steps to mitigate the impact of the absence of this witness, the real issue on September 16 and 17, 2021 was the prioritisation of other cases. If the Crown hadn’t been aware of 11(b) issue on September 16, they were certainly aware on September 17, 2021 and yet a different case was prioritized. In the factual matrix before me, the unavailability of the OIC was not the cause for the matter not concluding and therefore does not constitute a discrete event.
[37] The Respondent concedes that this was not a complex case.
[38] The resultant net delay (711 days) less the delay caused by the discrete event caused by the COVID-19 pandemic (112 days) is 599 days (19.7 months).
VIII. Conclusion
[39] The delay is presumptively unreasonable. The application is granted. The Applicant’s rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have been breached and he is entitled to a remedy.
[40] In accordance with s. 24(1) of the Charter, I impose a stay of proceedings.
Released: May 5, 2022
Signed: Justice Amanda Camara
[^1]: R v. Jordan, 2016 SCC 27 (S.C.C.) at para 5 [^2]: R v. Wookey, 2021 ONCA 68 at para 3. [^3]: R v. Coulter, 2016 ONCA 704 in paragraphs 34-40 [^4]: Jordan, supra, at para 47. [^5]: 1989 CanLII 63 (SCC), [1989] S.C.J. No. 71 (S.C.C.) at para 9. [^6]: Kalanj, supra, at para 16. [^7]: The Ontario Court of Appeal confirmed the same in R. v. Allison, 2022 ONCA 329 at para 41-43; R v. Milani, 2014 ONCA 536 at paras 22 and 26, leave to appeal refused, [2014] S.C.C.A. No. 426 and R v. Wookey, 2021 ONCA 68, at paras 53-55; R v. Faulkner, 2018 ONCA 174, [2018] O.J. No. 1045 at para. 9 and R v. Pavao, 2021 ONCA 527 at para 116. [^8]: 2016 SCC 28 at para 21-22 [^9]: Supra, para 55 [^10]: R v. K.J.M., 2019 SCC 55 at para 96 and R v. Boulanger, 2022 SCC 2 at para 10. [^11]: Jordan, supra, at para 61 and 63. [^12]: Jordan, supra, at para 63. [^13]: Cody, supra, at para 30. [^14]: R v. Boulanger, 2022 SCC 2 at para 8, emphasis added. [^15]: 2022 ONCA 229. Hanan was a transitional case, but that fact does not impact the courts analysis of defence delay [^16]: Hanan, supra at para 56. [^17]: Hanan, supra at para 56. [^18]: Hanan, supra at para 59. [^19]: 2022 ONCJ 138 [^20]: Both Applications had merit and were not frivolous motions. The issues unfolded rapidly and both counsels responded appropriately with helpful written and oral submissions. [^21]: R v. Williamson, 2016 SCC 28; R v. Stanley, 2016 ONCJ 730. [^22]: Jordan, Supra para 73 [^23]: The Applicant’s counsel submitted that between June 9 and June 29 ought not be attributed as delay caused by Covid-19 because during that time frame counsel needed to meet with her client and obtain final instructions. However, the materials filed by the Applicant with the court demonstrate that the counsel had in fact obtained instructions on June 9. See Applicant’s Factum, page 11.