Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 05 09 COURT FILE No.: 21-385 Windsor, Ontario

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAGDEEP MAROK

Before: Justice Shannon L. Pollock

Heard on: April 26, 2022 Reasons for Judgment Released on: May 9, 2022

Counsel: Andrea Harris, Counsel for the Respondent Lakhwinder Sandhu, Counsel for the Applicant

Contents

• Introduction
• The Positions of the Parties
• Section 11(b) – The Law
• Covid-19 As a Discrete Event
• Delay and Retrials
• Application to this Case

Endorsement

Pollock J.:

Introduction

[1] The Applicant was charged on an Information sworn on August 20, 2019. With the assistance of counsel, he entered a plea of guilt on September 11, 2019. He appealed his conviction to the Superior Court of Justice. That appeal was granted on November 13, 2020 and the matter was remanded back to the Ontario Court of Justice on December 2, 2020.

[2] The Applicant’s counsel for the appeal and retrial was different than counsel who had been retained for the guilty plea. The new and current counsel obtained the initial disclosure package from former counsel. When an agent for new counsel appeared in court on the first appearance on the retrial on December 2, 2020, there was an indication that counsel was waiting on further disclosure, that being the breath room video and a 911 call. The agent indicated on record that they would make a written request for that disclosure. The matter was adjourned to January 6, 2021. Counsel did not submit a written request for further disclosure until the eve of the next court appearance. As a result, the matter was adjourned until January 28, 2021 for disclosure to be obtained. The matter was adjourned for the purpose of disclosure once more to February 25, 2021.

[3] Once it was indicated that the disclosure had been received the matter proceeded in what can be described as the normal course and on May 27, 2021 trial dates were scheduled for May 17 and 18, 2022. The trial date setting form completed by trial co-ordination reveals that these were the first two (2) dates offered.

[4] At one point in August of 2021, defence counsel wrote via email to the trial co-ordinator asking if there were earlier trial dates available. The response was that the trial co-ordinator was setting trial matters with consecutive dates into August of 2022. The trial co-ordinator indicated their belief that the defence had previously requested consecutive dates. There was no evidence of any response by the defence.

[5] There was very little evidence produced by either party on this application.

The Positions of the Parties

[6] The Applicant seeks a ruling that his section 11(b) Charter right has been breached and that the charges should be stayed. The Applicant submits that the total delay from the ordering of a new trial on appeal (November 13, 2020) to the anticipated end of trial (May 18, 2022) exceeds the presumptive eighteen (18) month ceiling as laid out in Jordan and that the result is unreasonable delay and a breach of the Applicant’s section 11(b) Charter right to be tried within a reasonable time.

[7] The Respondent submits that the court should determine that a period of time of just over one (1) month is attributable as defence delay as a result of a late disclosure request.

[8] The Respondent submits that the total delay from the time that the appeal was granted to the anticipated end of trial is eighteen (18) months and five (5) days. The Respondent takes the position that one (1) month and three (3) days is attributable to the defence due to the failure to submit a written disclosure request in a timely fashion.

[9] It is the position of the Respondent that, once this time period is deducted from the total delay, this takes the total to seventeen (17) months and two (2) days, a time period which is below the presumptive eighteen (18) months as prescribed by Jordan. The Respondent submits that, as a result, the onus is on the Applicant to demonstrate that the delay is unreasonable and breaches their Charter right.

[10] The Respondent cites Covid-19 as a discrete event and submits that the court should take this event into consideration in assessing whether the remaining time period is reasonable. The Respondent submits that taking into account the fact that the time period is below the presumptive ceiling and occurred during the pandemic the Applicant has not met their onus.

[11] The Applicant takes the view that even if the period of just over one month is deducted as defence delay the resulting delay is still unreasonable given the Ontario Court of Appeal’s comments in R. v. MacIsaac on what is reasonable delay in the case of a retrial.

Section 11(b) – The Law

[12] In 2016, the Supreme Court of Canada in the decision of R. v. Jordan (2016 SCC 27) provided a new regime under section 11(b) of the Charter in an attempt to simplify the law which had become complicated under the former regime.

[13] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at eighteen (18) months for cases going to trial in the provincial court and at thirty (30) months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry): R. v. Jordan 2016 SCC 27 at para. 46

[14] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow: R. v. Jordan 2016 SCC 27 at para. 47

[15] 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: R. v. Jordan 2016 SCC 27 at para. 69

[16] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. R. v. Jordan 2016 SCC 27 at para. 82

Covid-19 As a Discrete Event

[17] Since March of 2020, the world has been living with, struggling through and adjusting to the global Covid-19 pandemic. In Ontario, there have been several waves of the virus which have caused changes in how the government, businesses, the medical system, families and individuals have continued to do business, carry on and interact. The justice system has been one of the entities that has also had to adjust to continue to carry on the administration of justice while, at the same time, doing its best to keep those within that system safe. It has been an historical time.

[18] The virus and the resulting changes to court operations, in order to continue to administer justice while keeping participants safe, caused delay in proceedings within the system. There have been periods of shutdown or partial shutdown which resulted in many matters, including trials, being adjourned. There have been matters that could not proceed virtually when that option was available and those matters were adjourned. There were times when matters involving custodial sentences were not being dealt with so as to protect those already in and those going into custodial facilities from the spread of the virus amongst persons in congregate settings. All of these matters needed to be rescheduled.

[19] As stated by Justice Nakatsuru of the Superior Court of Justice, in R. v. Simmons: “…the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.: R. v. Simmons 2020 ONSC 7209 at paragraph 72. The same applies to trials within the Ontario Court of Justice.

[20] Justice Nakatsuru further stated: “First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended.”: R. v. Simmons 2020 ONSC 7209 at paragraph 69

Delay and Retrials

[21] In R. v. MacIsaac, 2018 ONCA 650, the Court of Appeal was considering a delay of over seventeen (17) months in a case that was a retrial. The court found that delay to be unreasonable and the charge was stayed. At paragraph 27 the court stated the following: “In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a retrial. Retrials must receive priority in the system, and in the normal course retrials in the Ontario Court of Justice should occur well before Jordan 's 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for retrials.”.

[22] The Ontario Court of Appeal, however, did not establish a lower presumptive ceiling for retrials and proceeded on the basis that the presumptive ceiling was eighteen (18) months.

Application to this Case

[23] The appeal of this matter, the remand stage after the retrial was ordered and the date setting stage of the proceeding occurred in just over fourteen (14) months time from the start of the pandemic which was the middle of March of 2020. This was all still within a period of time when there were active waves of the virus occurring and various levels of shutdown within the system and the province. It cannot be expected that the matter would proceed in the same manner through the justice system as had occurred prior to Covid-19 and its impact on that system.

[24] It is standard practice that requests for disclosure are to be made in writing. In this case, counsel for the Applicant had the initial disclosure which was provided to them by former counsel. The disclosure was not complete. Breath room video is part of what is standard disclosure in allegations of impaired and/or over 80. However, the matter was initially resolved by way of a guilty plea only one (1) month after the first appearance in 2019 and before the breath room video had been provided to initial counsel. A written request was to be sent in order for that disclosure request to be initiated.

[25] The court concludes that the period between December 2, 2020 and January 6, 2021 is defence delay. Despite indicating on record that a written request for further disclosure would be provided by the defence that was not done so until the eve of the January 6, 2021 date. That period of one (1) month and three (3) days delay is attributable to the defence.

[26] The remaining delay is just over seventeen (17) months which is below the presumptive ceiling as outlined in Jordan. As a result, the burden shifts to the defence to establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

[27] The defence did take meaningful steps that demonstrated a sustained effort to expedite the proceedings. I cannot find, however, in the circumstances of which Covid-19 is a factor, that the case took markedly longer than it reasonably should have. As already stated, the retrial process, at least in part, occurred during a global pandemic with months of adjourned cases having to be rescheduled. I cannot conclude, in those circumstances, that it was unreasonable delay for a trial date to be set one (1) year out from the scheduling date. In those circumstances, I cannot conclude that the case took markedly longer than it reasonably should have.

[28] The Applicant has not met his onus in demonstrating that the delay was unreasonable. As a result, the Application is dismissed.

Released: May 9, 2022 Signed: Justice Shannon L. Pollock