Ontario Court of Justice
Date: 2022 05 19 Court File No.: Scarborough 20-35004154
Between:
HER MAJESTY THE QUEEN
— AND —
OLGA AJGIREVITCH
Before: Justice R. Wright
Heard on: April 1 and May 19, 2022 Reasons for Judgment released on: May 19, 2022
Counsel: Katrina Sole Kahler, counsel for the Crown Daniel Marcovitch, counsel for the defendant Olga Ajgirevitch
Reasons for Judgment
WRIGHT J.:
[1] On August 21, 2020, Olga Ajgirevitch was arrested for operating a conveyance with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 320.14 of the Criminal Code. She was transported to 41 Division where breath samples were taken. She was fingerprinted and released from 41 Division with an appearance notice to attend Court on November 26, 2020, and a notice of her driver’s license suspension under the Highway Traffic Act.
[2] On November 9, 2020, an Information was sworn charging Ms. Ajgirevitch with the offence of having a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood within two hours of ceasing to operate a conveyance, contrary to section 320.14 of the Criminal Code. A two-day trial is scheduled to be heard June 22 and 23, 2022.
[3] Ms. Ajgirevitch has applied for a stay of proceedings under s. 24(1) of the Charter on the basis that her right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been violated.
[4] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice, not including delay attributable to the defence, beyond which delay will be presumptively unreasonable. I find it helpful to refer to the ceiling and the time frames in my analysis by days rather than months. That means that there is a ceiling of 547 days, excepting any time that is appropriately deducted due to defence delay.
[5] The application was argued before me on April 1 and May 19, 2022. The parties diverged significantly on two major issues:
(1) The date from which the s. 11(b) clock should run: the Applicant argued that it should run from August 21, 2020, the date of arrest when Ms. Ajgirevitch was, in their submission, "charged" for all intents and purposes. The Respondent argued that it should run from November 9, 2020, the date on which the Information was sworn. It was agreed by both parties that if the date on which the clock began to run was November 9, 2020, this case would not exceed the 18-month ceiling set in R. v. Jordan once defence delay was deducted; and,
(2) If the delay exceeds the 18-month ceiling, whether the COVID-19 pandemic amounts to an exceptional circumstance justifying the delay and what amount of time would be appropriate to deduct as exceptional delay.
[6] There was further disagreement about the specific amount of defence delay, and the appropriate treatment of periods of time caused by administrative decisions of the Court in scheduling matters caused by virtual operations, both of which I will address in greater detail below. However, neither of those time periods impacts the outcome in this case.
[7] For the reasons that follow, I am of the view that Ms. Ajgirevitch's right to a trial within a reasonable time has not been violated.
The Chronology of Events
[8] Ms. Ajgirevitch was arrested on August 21, 2020. She was fingerprinted and released from 41 Division with an appearance notice to attend Court on November 26, 2020, and a notice of her driver’s license suspension. An Information charging her was not sworn until November 9, 2020.
[9] Ms. Ajgirevitch was self-represented for her first four Court appearances:
(1) She first appeared pursuant to her appearance notice on November 26, 2020, where she was adjourned a month for disclosure;
(2) She next appeared on December 21, 2020, and was adjourned to January 2, 2021, to allow for a continuing pre-trial with the Crown.
(3) On January 4, 2021, she was adjourned for three weeks for resolution discussions to continue; and,
(4) On January 25, 2021, the Crown indicated it had provided a plea position to her and that the Crown was also considering whether it could modify the position. The parties jointly asked the matter to return on February 8, 2021.
[10] By February 8, 2021, Ms. Ajgirevitch had retained counsel. From this date on, counsel made the following appearances on her behalf:
(1) February 8, 2021, an articling student for Worsoff Law Firm indicated that the firm required time to review disclosure and conduct a Crown pre-trial. The matter was put over to March 29, 2021, at the defence request.
(2) On March 29, 2021, it was put over with an express waiver of s. 11(b) to May 3, 2021, to get final client instructions and to schedule and conduct a Judicial pre-trial ("JPT").
(3) On May 3, 2021, the matter was again adjourned for JPT.
(4) On June 7, 2021, the date for JPT of June 23, 2021, was put on the record (there had been a miscommunication in which counsel emailed the Virtual Crown email address but failed to CC the assigned Crown to schedule the JPT date, which resulted in an additional two-week delay from May 3 to May 17) and the matter was adjourned to July 5, 2021.
(5) On July 5, 2021, it was indicated that the trial scheduling conference was being held the next day, and the matter was adjourned to July 26, 2021, to formally set the trial date on the record.
(6) On July 26, 2021, trial dates were set on the record: June 22 and 23, 2022. The matter was adjourned to June 2, 2021, for a trial confirmation hearing.
[11] On February 10, 2022, counsel for Ms. Ajgirevitch notified the Crown of his intention to bring this Application pursuant to s. 11(b) of the Charter by email to the Virtual Crown email address and sought the Crown's assistance in securing a date in advance of the trial date to allow that Application to proceed. This email was forwarded to the assigned Crown and a scheduling Zoom conference was scheduled for February 14, 2022.
[12] On March 1, 2022, the assigned Crown wrote to the Trial Coordinator canvassing the possibility of earlier dates for the trial given the s. 11(b) Application. She followed up on March 10, 2022. Earlier dates were not available.
Additional Evidence
[13] The Respondent adduced further evidence on the Application. The Affidavit of Brad Ververs includes the general pre-COVID-19 time-to-trial for a trial in the Scarborough Courthouse and the time-to-trial in the spring of 2022: pre-COVID-19, the Trial Coordinator's target for the setting of trial dates was within nine months of the scheduling date for an out-of-custody trial; at present, the Trial Coordinator's target is within twelve months of the scheduling date for an out-of-custody trial.
[14] The Affidavit includes further information from the Trial Coordinator's Office of impacts to scheduling caused by pandemic-related shutdowns and restrictions. According to the Trial Coordinator's Office, the increase in the scheduling range has been caused by:
(1) The backlog that resulted from the rescheduling of all Court hearings that had been adjourned in 2020;
(2) The additional rescheduling of matters from April and May of 2021, when there was a second lockdown; and,
(3) The accrual of new matters since the onset of the pandemic, exacerbated by limitations on trial scheduling caused by restrictions in Courthouse attendance. As of April 2021, the Scarborough Courthouse had only 7 of 10 trial courts open. As of April 1, 2022 (the date this Application was argued), the Scarborough Courthouse is still short one trial court.
[15] The Affidavit further contains details of efforts made by the Trial Coordinator's Office to mitigate delay, including:
(1) The hiring of additional Assistant Trial Coordinators in response to the pandemic; and,
(2) Increasing the amount of double and triple bookings of matters.
[16] The Respondent also filed copies of seven Informations in other matters. These Informations were for charges similar to those faced by Ms. Ajgirevitch and were relied on by the Crown as demonstrating the approximate time-to-trial for a two-day trial on impaired driving charges set prior to the COVID-19 pandemic. Given the evidence adduced from the Trial Coordinator’s Office, I have not relied on these Informations.
The Analytical Framework
[17] The primary purpose of s.11(b) of the Charter is to protect the individual rights of accused persons, namely:
(1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges;
(2) the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
(3) the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh.
[18] The secondary purpose of s. 11(b) is to protect the interest of society. This includes seeing that citizens who are accused of crime are treated fairly and the public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial.
[19] A decision as to whether s.11(b) has been violated “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” that takes a “bird’s eye view” of the proceedings.
[20] In R. v. Jordan, 2016 SCC 27, the Supreme Court provided the framework for assessing an Application under s. 11(b) of the Charter:
A. the total delay from the laying of the charge to the anticipated end of the trial must be calculated;
B. once that period is determined, any delay attributable to the defence must be subtracted to determine the net delay. Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay;
C. where the net delay in the provincial court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. In general, exceptional circumstances fall into two broad categories: (1) discrete and exceptional events, or (2) particularly complex cases. However, the list of exceptional circumstances is not closed. In addition, the Crown must show that it could not reasonably remedy or prevent the delays from those exceptional circumstances.
D. If the Crown fails to establish both exceptional circumstances existed and that its/the system's response to the circumstances was reasonable, a stay must be entered. If the Crown meets these two hurdles, the Court must calculate the number of months of exceptional delay and subtract that from the remaining delay. If the result is above the 18 month ceiling, the delay is unreasonable and a stay must be entered.
E. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.
Application of the Framework
A. Total Delay From the Laying of the Charge to the Anticipated End of Trial
[21] The Applicant submits that the delay in this case should be measured from the day of Ms. Ajgirevitch's arrest -- August 21, 2020 -- as she was effectively "charged" that day. She had been fingerprinted. She had been served with a notice of driver's license suspension. She had been provided with an appearance notice for Court. The Applicant submits that she had every reason to believe she was criminally charged. Further, she could have taken advantage of an early guilty plea to enter "Stream A" as it relates to the period in which she would have been unable to return to driving. The Applicant asks that I adopt the reasoning in the decisions of R. v. Mikhailov, 2020 ONCJ 507, R. v. Luoma, 2016 ONCJ 670, R. v. Nash, 2014 ONSC 6025, and R. v. Egorov, [2005] O.J. No. 6171, that a person is "charged" once they are subject to restraints on their liberty and the processes of the Court.
[22] The Applicant further submits that, because the Information in this case should have been laid much earlier than November 9, 2020, I should accept the reasoning of Schreck J. in R. v. Luoma, 2016 ONCJ 670, that a person is charged from the date an Information is "sworn or ought to have been sworn" (at para. 29). In support of this argument, the Applicant submits that the Information in this case should have been sworn much earlier, and that it was not sworn as soon as practicable. Permitting the police to lay Informations outside of the "as soon as practicable" range will lead to a slippery slope of police behaviour in which the police can manipulate s. 11(b) by delaying the swearing of Informations.
[23] The Respondent submits that the delay should be measured from the date the Information was sworn and that I am bound to apply R. v. Kalanj, [1989] 1 S.C.R. 1594. The Respondent submits that the language in R. v. Kalanj is clear and unequivocal that a person is not "charged" until there is an Information. The Crown relies on the decision of R. v. E.K., 2013 ONCA 175, to rebut the arguments raised by the Applicant that the time should run from the date of arrest.
[24] After the conclusion of oral argument but before the release of my decision, the Court of Appeal for Ontario released R. v. Allison, 2022 ONCA 329. I invited counsel to make submissions on the impact of this decision on their respective arguments, which occurred before me today. In Allison, it was argued that the calculation of delay should be from the date of arrest rather than the date the Information was sworn; Favreau J.A. held otherwise at paras. 35-43:
[35] The appellant argues that the application judge should have used the date of his arrest rather than the date the information was sworn as the start date for calculating the total delay. This was a seven-week period.
[36] In making this argument, the appellant relies on a number of lower court decisions where courts have used this approach when there has been a significant delay between the date of the arrest and the date the information was sworn: R. v. Gleiser, 2017 ONSC 2858, at para. 18; R. v. Albadry, 2018 ONCJ 114, at para. 9; R. v. Bolé, 2019 ONCJ 141, at paras. 22-24; R. v. Gill, 2020 ONCJ 124, at paras. 24-30; R. v. Elakrat, 2020 ONCJ 343, at para. 14; and R. v. Creglia, 2018 ONCJ 262, at fn. 2.
[37] The appellant argues that this approach is consistent with s. 505 of the Criminal Code, R.S.C., 1985 c. C-46, which requires that “an information relating to the offence alleged to have been committed by the accused … shall be laid before a justice of the peace as soon as practicable” [emphasis added] after a notice of appearance has been issued to an accused or an accused has been released from custody.
[38] He also argues that this proposed approach is more consistent with the principles set out in Jordan. He proposes that the date of the arrest should not be the start date in all cases but that, if an accused raises concerns about a delay between the date of arrest and the date the information is sworn, the Crown should have to demonstrate that the delay was reasonable in the circumstances of the case. He argues that, in this case, there does not appear to be a reasonable explanation for the delay.
[39] I reject this argument for four reasons.
[40] First, this argument was not made in the court below: Kaiman v. Graham, 2009 ONCA 77 at para. 18.
[41] Second, despite the lower court decisions cited by the appellant, there is binding authority from the Supreme Court of Canada that addresses this point directly. In R. v. Kalanj, [1989] 1 S.C.R. 1594, the majority of the Supreme Court relied on the text of s. 11(b) of the Charter, which states that “any person charged with an offence … has the right to be tried within a reasonable time” [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of the arrest.
[42] Third, in Jordan, the Supreme Court could have revisited this issue in setting the framework for calculating delay but did not do so. Instead, the Court affirmed, at paras. 47-49, that the time for calculating delay runs from “the charge to the actual or anticipated end of trial” [emphasis added]. As noted by Code J. in R. v. Gandhi, 2016 ONSC 5612, at para. 4, “[a]lthough the majority [in Jordan] changed fundamental aspects of the prior s. 11(b) framework, there was no indication that the Court wished to alter the longstanding principle that s. 11(b) delay begins to run from the swearing of the Information”.
[43] Fourth, since Jordan, this court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b) Charter application, time starts to run from the date of the charge and not the date of the arrest. Most recently, in R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 55, Trotter J.A. cited R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 22, which was decided before Jordan, to emphasize that “for s. 11(b) purposes, ‘[t]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, ‘charge’ means the date on which an information is sworn or an indictment is preferred’”.
[25] The Applicant argues that Allison is distinguishable on the facts before me: that as in the cases he relied on of R. v. Mikhailov, 2020 ONCJ 507, R. v. Luoma, 2016 ONCJ 670, R. v. Nash, 2014 ONSC 6025, and R. v. Egorov, [2005] O.J. No. 6171, Ms. Ajgirevitch was subject to a promise to appear, fingerprinted, and faced immediate ancillary consequences such as the administrative suspension of her driver's licence, and faced the option of an early guilty plea which might permit access to ignition interlock remediation programs reducing the length of licence suspension. He submits to me that the date the Information is sworn has no bearing on these consequences, restrictions, or timelines, and that in cases where the police investigation is for all-intents completed immediately, the Court should distinguish the date of “charge” and find that a person in Ms. Ajgirevitch's position is charged from the date of arrest.
[26] The Court in Allison did not directly address the cases that the Applicant relies on, or this argument that Kalanj can be interpreted to find that a person is charged from the date an Information is "sworn or ought to have been sworn," R. v. Luoma, 2016 ONCJ 670 at para. 29. However, the Court in Allison specifically referenced R. v. Gill, 2020 ONCJ 124 (which relied on both R. v. Luoma and R. v. Nash), specifically distinguished between arrest date and charge date, and specifically addressed s. 505 of the Code.
[27] I am bound by the decisions of the Supreme Court in R. v. Kalanj, [1989] 1 S.C.R. 1594 and the Court of Appeal for Ontario in R. v. Allison, 2022 ONCA 329, R. v. E.K., 2013 ONCA 175 and R. v. Morash, 2021 ONCA 335. I do not agree that they can be interpreted in the manner the Applicant urges. The language in both is clear and unequivocal. In my view, it does not invite a consideration of when a person "ought to have been charged". Importing an “ought to be charged” element further ignores the possibility that charges will not be laid (I note that some Canadian jurisdictions have moved to charge-consultation/charge-approval models where charges are regularly not laid after an arrest and release) and that the stigma flowing from an arrest is simply not the same as that flowing from a charge.
[28] The Applicant submitted that the consequence of being subject to the processes of Court, such as the driving suspension, the requirement to appear pursuant to the notice, and the fingerprinting, is suggestive of a “charge”. I disagree. The license suspension flows from the Highway Traffic Act, not from a criminal charge. Similarly, many non-charged persons are compelled by the Court to appear for various purposes, such as giving evidence. I agree that the taking of photographs and fingerprints may suggest to a person that they are “charged”, but the lawful authority to take those comes from the Identification of Criminals Act and applies to persons who are alleged to have committed an indicatable offence who are required to appear by an appearance notice. Those persons are not charged until the Information charging them is in existence.
[29] A person who is detained or arrested by the police, held for a period of time, and required to provide bodily substances has the protection of a variety of sections of the Charter. S. 11(b) protects the rights of those charged with an offence. Issues arising from a failure of the police to comply with s. 505 of the Code may lead to other remedies, but I am not persuaded that the pre-charge delay between Ms. Ajgirevitch's arrest on August 21, 2020, and the swearing of the Information on November 9, 2020, should be included in the total delay. [1]
[30] Following Kalanj and Allison, the total delay in this case from the laying of the charge to the anticipated end of the trial is therefore 591 days (19 months and two weeks) from the date of the swearing of the Information on November 9, 2020, to the anticipated end of trial on June 23, 2022.
B. Subtracting Delay Attributable to the Defence
[31] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence.
[32] There is one period of time in which there was an express waiver of s. 11(b) -- March 29 to May 3, 2021 -- 35 days. Subtracting that period of time leaves 556 days.
[33] The Applicant concedes a further period of time as delay attributable to the defence; the time period after counsel was retained in which many of the initial steps that had been conducted when Ms. Ajgirevitch was self-represented had to be repeated -- February 8 to March 29, 2021 -- 49 days. Subtracting that period of time leaves 507 days to be considered.
[34] The Respondent submits that two further periods should be considered as delay attributable to the defence and deducted: January 25 to February 8, 2021, (14 days) where Ms. Ajgirevitch was considering the offered resolution position, and May 3 to May 17, 2021, (14 days) where counsel for Ms. Ajgirevitch had failed to follow the correct procedure in securing a date for JPT by contacting the assigned Crown directly.
[35] The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay.
[36] On January 25, 2021, Ms. Ajgirevitch appeared in set date Court and the Assistant Crown stated "Your Worship, this lady has a plea position we’ve given her. She wishes to both consider it a little bit and she’s going to have our office consider the position, as well. See if we can modify it. Both are asking the matter come back on February 8…" Neither party sought to move the matter to a JPT stage as both considered resolution. While I agree with the Crown's argument that time taken by the defence to consider or try to have the Crown change a position may be delay attributable to the defence, in this case this delay was not delay that can be said to be attributable “solely or directly” to the actions of the defence. I am not persuaded it should be deducted.
[37] For the time period between May 3 and May 17, 2021, I reach a different conclusion. While counsel's failure to follow the proper procedure to secure a JPT date was inadvertent, and while he did email a Crown email address (that is used mostly for disclosure and that I note was the same address he used when securing the Crown’s assistance in scheduling the 11(b) Application), his actions directly caused this period of delay. The Crown has a reasonable system in place to ensure the correct assigned Crowns can follow their cases. Counsel's failure to follow this system is not meant to be a criticism; this type of procedural mistake is common. It simply would not be fair to have the defence benefit in the delay calculation from delay that was caused by the defence. This 14-day period is further deducted, leaving 493 days to be considered.
C. Where the net delay in the provincial court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay
[38] 493 days is the equivalent of approximately 16 months and one week: below the 18-month presumptive ceiling. However, if I am incorrect in my finding that the date from which the s. 11(b) clock should run is November 9, 2020, then the total time from the date of the arrest to the anticipated end of trial is 671 days. Subtracting the defence delay of 98 days would leave 573 days for consideration, which is 26 days over the presumptive ceiling. In the event that the total time should include the time from Ms. Ajgirevitch's arrest, I will consider whether the Crown has established that there were exceptional circumstances justifying the delay.
[39] Numerous Courts have held that the effects of the COVID-19 pandemic constitute exceptional circumstances: R. v. Drummond, 2020 ONSC 5495, at para. 76; R. v. Simmons, 2020 ONSC 7209, at paras 59-60; R. v. Obregon-Castro, 2021 ONSC 1096, at paras. 38-39; R. v. Robinson, 2021 ONSC 2445, at para. 101; R. v. Khan, 2021 ONCJ 195, at paras. 3-15; R. v. Venne, 2021 ONCJ 80, at paras. 22-34.
[40] The Respondent submits the impact of COVID-19 on the Courts is an exceptional circumstance that impacted this case. It does not fit neatly into the general category from Jordan of a "discrete exceptional event" such as an illness, but it is exceptional and is the cause of delay in securing Ms. Ajgirevitch's trial date. The Respondent points to the impact of the backlog of cases adjourned due to the closure and subsequent limited availability of the Courts. In support of this argument, the Respondent relies on the evidence from the Trial Coordinator's Office.
[41] The Applicant argues that COVID-19, while a discrete exceptional event for some cases (such as those whose trial dates were lost due to the closure of the Courts), is not clearly the cause of delay for Ms. Ajgirevitch. The Applicant argues COVID-19 should be limited to those cases where there is a clear connection from a specific COVID-19 impact to the delay in a case.
[42] In my view, this argument is too narrow a reading of Jordan. It is not "discrete events" that the Crown must establish, but exceptional circumstances. Discrete and exceptional events are but one of the two general categories of exceptional circumstances identified by the Court in Jordan. However, the Court was clear that the list of exceptional circumstances is not closed:
[69] 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.
[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.
[71] It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
[43] We are currently still in the midst of a world-wide COVID-19 pandemic, in which millions of people have died. In assessing whether Ms. Ajgirevitch's case was impacted by the COVID-19 pandemic, this Court is able to take notice of the procedures and processes of the Ontario Court of Justice:
(1) The Court was closed to trials and preliminary hearings from March 16 to July 3, 2020. All out-of-custody trials and preliminary inquiries were cancelled on March 16, 2020;
(2) On July 6, 2020, the Court re-opened very limited courts for criminal trials and preliminary inquiries and critical family proceedings;
(3) When the courts partially re-opened on July 6, 2020, the Chief Justice directed that the trials and preliminary inquiries cancelled between March 16 and July 3, 2020, had to be rescheduled with a priority being given to in-custody cases that were cancelled during this time. Otherwise, cancelled trials and preliminary hearings were directed to be rescheduled on the basis of the date of the original trial or preliminary inquiry;
(4) New cases, such as Ms. Ajgirevitch's, could not request a trial date until (at the earliest) September 28, 2020;
(5) Justice of the Peace case management courts were also closed from March 16, 2020, and did not re-open until August 24, 2020, when they re-opened remotely;
(6) The Court was closed again by direction of the Chief Justice when all trials and preliminary hearings (including virtual proceedings) April 26 to May 7, 2021, had to be adjourned to try to reduce the number of people entering courthouses during a critical phase of the pandemic. All in-person, out-of-custody trials and preliminary hearings from May 10 to May 21, 2021, were adjourned. As a result, more trials and preliminary hearings had to be rescheduled.
[44] The Applicant submits that the pandemic did not affect this case – that the setting of the trial dates occurred after both Court closures, and the scheduled trial dates come after almost full reopening.
[45] I disagree. The Applicant’s submission would have COVID-19 treated like a single event impacting a single discrete case or day of Court. It is not a single closure of the Courts or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts.
[46] In Toronto, one of the busiest jurisdictions in the country, the unprecedented closure of the courts for months over the course of 2020 and into 2021 has and will continue to have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209:
[70] 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.
[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 - 84.
[72] Similarly, 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.
[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region--which has now suspended jury trials again since October 9, 2020--has recently extended the suspension of jury trials to January 4, 2021.4 In short, when it comes to assessing COVID-19's impact on the criminal justice system, this discrete event continues. [emphasis added]
[47] In the case before me, I have evidence that the backlog of cases has led to an increase in time-to-trial from approximately nine months to twelve months, despite the increased practice of double and triple booking trials. This is directly caused by the COVID-19 pandemic.
[48] In order to qualify as an exceptional circumstance, the Crown must show it could not have reasonably remedied or prevented the delay. The Crown cannot sit idly on their hands when rescheduling the backlog created by COVID-19.
[49] In addition to the staggered reopening of Courts, and the triage of priority cases which were adjourned due to Court closures, which I have referenced above, I have before me specific evidence of steps taken within the Scarborough Trial Coordinator's Office to attempt to remedy the delay that has been occasioned by the pandemic: these include the hiring of additional assistant trial coordinators and an increase in double and triple booking cases.
[50] I am further able to consider the significant steps taken by both the Court and the Crown to allow for the hearing of matters during the course of the pandemic, including the creation and use of virtual courtrooms and processes. This is not the Crown idly sitting on their hands in addressing the backlog of cases. These are concrete steps to move all matters in the system forward with as little delay as possible, including Ms. Ajgirevitch's.
[51] Finally, I note that when the Applicant raised the issue of delay in this specific case, the Crown attempted to secure earlier trial dates for her matter. This attempt was ultimately unsuccessful, but "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" R. v. Jordan, 2016 SCC 27, at para. 70.
[52] The steps that the Court and the Crown have taken in an effort to address delays caused by the COVID-19 pandemic have been reasonable. The steps taken in Ms. Ajgirevitch's case, specifically, are also reasonable.
D. Calculating the Number of Months of Exceptional Delay
[53] I turn then to consider the appropriate amount of time that should be deducted due to the impact of the exceptional circumstance of the COVID-19 pandemic.
[54] The Respondent submits that two periods of time should be deducted as directly related to the delay caused by the pandemic:
(1) the period of time caused by an administrative scheduling policy required because JPTs are not presently conducted in person (11 days). This is a period of time from when the JPT has been conducted and the parties are ready to set a trial date but must schedule and hold a trial scheduling conference with the trial coordinator in order to schedule the date; and
(2) a minimum of 60 days, accounting for the ongoing effect of the pandemic-caused backlog on Court resources.
[55] The Applicant submits that there is not a quantifiable amount of time to be deducted due to the COVID-19 pandemic. The Applicant further submits that an administrative scheduling policy that adds delay to the process should not be deducted.
[56] In my view, the 11-day period of time from when the parties were ready to set a trial date after conducting the JPT to when the trial conference could be heard is appropriately considered as delay attributed to the exceptional circumstance of the COVID-19 pandemic. Because the parties are not in the courthouse, a system must exist to allow the Trial Coordinator's Office to receive requests to set trial dates, prioritize those requests, schedule trial conferences, and hold those conferences. This approach is logical, sensible, and effective. The parties were not in the courthouse due directly to the COVID-19 pandemic and public health measures that are in place to protect everyone's health. Deducting those 11 days from the 573 days at issue (if the start date is the date of arrest) leaves 562 days for further consideration.
[57] Determining the appropriate period of time that should be deducted due to the system-wide impact of the COVID-19 pandemic is more complex. In R. v. Hamidi, Scarborough OCJ unreported, Chapman J. held that 60 days was a reasonable (though likely modest) amount of time to deduct. Chapman J. does not seem to have had the same evidence before her from the Trial Coordinator's Office of the general difference in time-to-trial being experienced due to the pandemic.
[58] There is evidence before me that prior to the pandemic, the target time-to-trial was nine months from the scheduling date in the Scarborough Courthouse. Due to the pandemic, that time has increased to twelve months. That difference in time is directly caused by the backlog that resulted from the rescheduling of all court hearings that had been adjourned in 2020, the additional rescheduling of matters from April and May of 2021, and the accrual of new matters since the onset of the pandemic, exacerbated by limitations on trial scheduling caused by restrictions in courthouse attendance. In my view, it makes sense to deduct this difference as the period of exceptional delay. It is this period of time that has been caused by the COVID-19 pandemic.
[59] Estimating three months at approximately 90 days, and deducting those days from the 562 days remaining, leaves 472 days or approximately 15 and a half months. This is well below the 18-month ceiling set by Jordan, even if the appropriate day for the start of the calculation is the date of arrest. The Applicant did not submit that this was a case in which the defence took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have.
[60] In conclusion, I am not satisfied that the Applicant has established a breach of s.11(b) of the Charter and the Application is dismissed.
Released: May 19, 2022 Signed: Justice Robert Wright
[1] With respect to s. 505, there is a further distinguishing feature in the case of Ms. Ajgirevitch from what was before Schreck J. in Luoma. It is not clear on the record before me that the Information was not sworn in compliance with s. 505. Ms. Ajgirevitch was arrested on August 21, 2020. Justice of the Peace case management courts were closed from March 16 to August 24, 2020, when they re-opened remotely and began addressing the backlog of cases. I have no evidence from the officer who laid the Information in the case before the Court: I do not know if he delayed laying it intentionally due to the pandemic or whether he simply forgot to lay it or was delayed for some other reason. I agree with the defence that a lengthy delay between the arrest date to the laying of the Information would not typically be said to be “as soon as practicable” but the same cannot be said of the delaying of the laying of an Information in the fall of 2020 based on what was happening in the Courts at that time.
