Ontario Court of Justice
Date: 2022 08 12 Court File No.: 19-822 Windsor, Ontario
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TIMOTHY ATTWATER
Before: Justice Shannon L. Pollock
Application Heard on: July 7, 2022 Reasons for Judgment Released on: August 12, 2022
Counsel: Siobhan Dundon................................................................................ Counsel for the Crown Michael Gordner ........................................................................ Counsel for the Defendant
Reasons for Judgment on Section 11(b) Application
Pollock J.:
Introduction
[1] This a matter that will be coming before the Court for trial 1265 days after the information was laid. That is three (3) years, five (5) months, two (2) weeks and two (2) days. The information was sworn on April 5, 2019 and the trial is scheduled for September 20 and 21, 2022.
[2] The issue for me to decide is whether the total delay minus defence delay and any delay attributable to Covid-19 as a discrete event exceeds or is below the presumptive ceiling as set by the Supreme Court of Canada in Jordan. If it is below the presumptive ceiling, then it must be determined if the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have.
The Positions of the Parties
[3] It is the position of the Applicant that the total delay minus defence delay and delay due to exceptional circumstances exceeds the presumptive ceiling. The Applicant submits that only a period of ten (10) weeks should be deducted as an exceptional circumstance attributable to the Covid-19 pandemic. Further, the Applicant submits only thirty (30) days should be deducted due to the death of former counsel.
[4] The Applicant points out that the cases make it clear that the Crown and the justice system must be prepared to take steps to mitigate the delay caused by exceptional circumstances.
[5] The Crown position is that there are much greater periods of time that should be deducted as defence delay and as a discrete event due to Covid-19 and that the resulting delay is below the presumptive ceiling.
The Jordan Framework
[6] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 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 paragraph 46.
[7] 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 at paragraph 47.
[8] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. We expect stays beneath the ceiling to be rare and limited to clear cases: R. v. Jordan at paragraph 48.
[9] 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.: R. v. Jordan at paragraph 69.
[10] One component of defence delay is delay caused solely by the conduct of the defence. The defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay. : R. v. Jordan at paragraphs 63 and 64.
[11] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Defence applications and requests that are not frivolous will also generally not count against the defence.: R. v. Jordan at paragraph 65.
The Timeline
[12] The total delay from the date the information was sworn (April 5, 2019) to the anticipated end of trial (September 21, 2022) is 1265 days or 3 years, 5 months, 2 weeks and 2 days. That is almost two (2) years over the presumptive ceiling of eighteen (18) months.
[13] There were initial trial dates scheduled for April 15 and 16, 2020. Defence counsel was unavailable for the first trial dates offered in February of that year. In March of 2020, court operations shut down due to the global pandemic that is known as Covid-19. As a result, the April 2020 trial dates did not proceed. The date setting process for this matter commenced again in September of 2020 and on December 1, 2020, new trial dates of September 29 and 30, 2021 were obtained. Sadly, on September 8, 2021, counsel for the Applicant died.
[14] It took until December 7, 2021 for new counsel to be retained. It then took until May 4, 2022 for counsel to obtain new trial dates of September 20 and 21, 2022. During those approximately five (5) months, counsel was engaging in the usual first steps of obtaining instructions, meeting with the Crown and conducting a judicial pre-trial. Dates were ultimately obtained and confirmed on May 4, 2022. Those trial dates are September 20 and 21, 2022.
Covid-19 as a Discrete Event
[15] It is now well recognized that the pandemic has been determined to be a discrete event within the justice system. The issue has become how much time to attribute to this discrete event. Many courts have determined that the timeline to be deducted for the purpose of 11(b) applications is from the onset of the pandemic and closure of the courts in Ontario on March 16, 2020 to the newly scheduled trial date.
[16] The Applicant argues that the only time period attributable to the pandemic is the period from the first trial date (April 15, 2020) to July 6, 2020 when court operations resumed. The Applicant states that the pandemic did not play a major role in the delay in this matter. I cannot agree.
[17] But for the pandemic, the trial in this matter would have been conducted on April 15 and 16, 2020, just over twelve (12) months from the date the information was sworn. Those dates were adjourned because of the closure of the courts due to Covid-19. Although the courts resumed operations in some matters on July 6, 2020, this matter was not before the court again until September 2, 2020 where it had been presumptively adjourned to from June 24, 2020. From September 2, 2020 to December 1, 2020, the matter was adjourned in order for trial dates to be set and for what was referred to as a “Covid pre-trial” to be conducted. On December 1, 2020, new trial dates were confirmed for September 29 and 30, 2021. It appears from the trial scheduling form that these were the first dates offered.
Application to the Case
[19] There were two (2) trial dates that were adjourned due to exceptional circumstances. But for those events, the trial on this matter was to be held in April of 2020. It was those discrete events which caused the trial dates to be adjourned.
[20] Of course, the time attributed to this health crisis cannot go on forever. However, in the circumstances of this case, the new trial date was scheduled for September of 2021. As pointed out by Justice Nakatsuru, the discrete event of Covid-19 doesn’t end as soon as the courts are hearing trials again and “the trial takes place in the reality of the courthouse the case is being heard in.” In our circumstances, the reality is that obtaining a trial date of September 2021, just under ten (10) months from the date on which it was set in December of 2020 was reasonable.
[21] The Applicant submits that the Crown did not take steps to mitigate the delay occasioned by the exceptional circumstances that occurred as is required according to the Supreme Court of Canada’s comments in Jordan that the Crown and justice system must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. It is noteworthy that the Court stated: “Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. 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).: Jordan at paragraph 75.
[22] The time period that will be deducted as part of the discrete event of Covid-19 will be the period from April 15, 2020 to the new trial date of September 29, 2021 which is 532 days.
[23] The defence was unavailable for the first trial dates that were offered in 2020 and there was a resulting 56 days of delay. The parties are in agreement that this is defence delay.
[24] Sadly, counsel for the Applicant died on September 8, 2021 which was three (3) weeks before the second trial dates. Much like the delay attributable to Covid-19, the death of counsel was a discrete event.
[25] It took three (3) months for new counsel to be retained and then several months for counsel to obtain instructions, engage in crown meetings and the pre-trial process and review transcripts with a view to this Application. When the trial date was ultimately scheduled, it was set quickly.
[26] All of this delay, was due to the death of the Applicant’s former counsel. There was, of course, a period of time that was required for new counsel to get up to speed but the dates were set quickly. The Crown continued to review the file and meet with counsel to move the matter forward. This time period, between September 2021 and the new date of September 2022 was a delay directly attributable to the discrete event which was the death of the Applicant’s former counsel. Many months of that time period were spent retaining new counsel and then for new counsel to engage in first litigation steps. It is difficult to determine what other steps could have been taken by the Crown to mitigate this delay due to the Applicant’s lawyer dying on the eve of trial.
Conclusion
[27] The total delay of 1265 days minus delay due to Covid-19 of 532 days is 733 days. Defence delay has been calculated at a total of 56 days. The total delay to be deducted due to counsel’s death will be the time period between September 21, 2021 and the new trial date of September 29, 2022. That is a total of 373 days. As a result, the total delay to be deducted is 961 days. That leaves a total delay of 304 days which is well under the Jordan ceiling.
[28] The application is dismissed.
Released: August 12, 2022 Signed: Justice Shannon L. Pollock