WARNING The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 08 12 Information No.: 20Y-7719 Central West Region - Hamilton

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Y.D.

Before: Justice Brian G. Puddington Heard on: April 1, 2022 Decision communicated to parties: July 18, 2022 Reasons for Judgment released on: August 12, 2022

Counsel: R. Branton ............................................................................................ counsel for the Crown C. McKenna............................................................................. counsel for the accused Y.D.

Puddington J.:

OVERVIEW

[1] This is an application by Y.D. for a finding that his right to a trial within a reasonable time under section 11(b) of the Charter was breached, and for a stay of the proceedings pursuant to section 24(1).

[2] The total delay from the laying of the information to the anticipated end of the trial is 764 days, or approximately 25 months, making it 7 months above the presumptive ceiling of 18 months for a matter to conclude in the Ontario Court of Justice. [1] Jordan was decided by the Supreme Court of Canada 6 years ago, and as is now well known to all actors in the Criminal Justice System in Canada, 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. [2]

[3] The question raised in this application is whether some or all of the 7 months above the 18 month ceiling can be considered exceptional. The Crown submits that the Covid-19 pandemic and the complexity of this case are exceptional circumstances that justify additional delay in this case.

[4] For the reasons that follow, I find that while the Covid-19 pandemic certainly brought challenges to the administration of justice, it did not bring it to its knees. Through the hard work of all participants in the system, the courts stayed open and continued to hear matters and serve the public. While the pandemic likely caused some delay, the Crown did not provide any evidence to show that was the case. I also cannot find that this matter was of such complexity that it required 7 months beyond the presumptive ceiling. In a case where there is no Defence delay, the Crown has failed to rebut the presumption of unreasonableness and a stay is entered pursuant to section 24(1). [3]

FACTUAL BACKGROUND

i) The offences

[5] While I have not heard any evidence on the trial, and the charges obviously remain unproven, the Crown submits that the offences in this case come about as a result of a “spree” of “serious” residential break and enter charges in July 2020. [4] Y.D. had recently turned 15 years old at the time of his arrest. The allegations include the theft of electronics, cash, jewellery, and motor vehicles parked in driveways. Y.D. is charged on a 36-count information with three co-accused. Aside from the characterization of the offences by the Crown as “serious”, and the fact that the matter involved a significant amount of disclosure (elaborated upon in more detail in paragraph 22 of these reasons), I do not have much further information on this 11(b) application about the level of complexity or seriousness of the charges.

ii) The relevant timelines

[6] Information #20-7719, charging four individuals, was sworn on August 26, 2020. I have also been provided a transcript that predates these charges from July 3, 2020 wherein an information # 20-Y-4480 was addressed. I do not know anything about these allegations, nor are they relevant to my assessment on this application. [5] Both the Crown and the Defence agree that the information before me was sworn on August 26, 2020 and the calculation of time for delay purposes should begin on this date.

[7] There is not much controversy with respect to the timeline in this matter. On August 26, 2020, Y.D. apparently had a bail hearing [6] and was released on a recognizance, with a surety, in the amount of $5000, no deposit. The conditions of this recognizance include that he was to be on house arrest except to go to school or in the direct presence of his surety or father. [7] After being released, Y.D. was remanded to October 2, 2020. Nothing of significance happened on this date, and it was remanded to October 30, 2020, whereupon it was put on the record by counsel for Y.D. that “a large amount of disclosure” was received the day before. [8] It was therefore remanded to December 4, 2020, for counsel to review that disclosure.

[8] On December 4, 2020, Ms. McKenna (counsel for Y.D.) agreed to remand the matter to January 8, 2021, the date that counsel for a co-accused had already chosen. This adjournment gave Ms. McKenna an opportunity to continue to review the initial disclosure, and additional disclosure that had been provided. On January 8, 2021, Ms. McKenna was ready to set a judicial pre-trial (“JPT”), and requested February 5, 2021 so that she could conduct the necessary Crown pre-trial (“CPT”) on February 3, 2021. On February 5, 2021, Ms. McKenna had conducted her CPT and was agreeable to an adjournment to March 12, 2021 to await further disclosure that had been requested. On February 5, 2021, the Crown noted that:

I agree this likely is going to need case management given all of the different co-accused and the fact that a JPT can’t be set for some reason pursuant to the policy unless all the co-accused have CPTs, despite the fact that there is case law that says one co-accused should not be holding up another co-accused from dealing with their matter. My suggestion is going to be that we put it all to March 12 th and then on that date a case management is set. [9]

[9] Despite the above comments by the Crown on February 5, 2021, no case management date was set and nothing of any significance happened on March 12, 2021. Ms. McKenna again wanted to set a JPT, but the matter was simply adjourned to April 9 th , 2021. The Crown made no comments on the record about moving this matter along. The Crown agreed to the adjournment request, making only two comments during the appearance:

i) “Yes, that’s appropriate”; and

ii) “Now, given that this matter appears to be seven months old at this point, it is incumbent upon the accused that do not have counsel and are applying for Legal Aid, Your Worship, to get those Legal Aid applications moving as quickly as possible.” [10]

[10] April 9, 2021 was equally unproductive. A different Crown appears to speak to the matter, expressing concerns about how the case is getting old, but that a JPT cannot be set until the self-represented accused have a CPT. What is particularly unsettling about this appearance is that it becomes apparent that Mr. A. (a self-represented co-accused) has never received disclosure:

THE COURT: … this is a matter that definitely needs to move forward. I’m a little troubled that after all of this time the gentleman still has not requested and received his disclosure.

CROWN: And Your Worship, I share Your Worship’s concerns. And in fact, what I might suggest that my friend go back to the breakout room, they can schedule a Crown pre-trial, I think it might be good in the sense that it will force – if disclosure hasn’t yet been received yet, it will provide a definitive date by the time – because we have three other co-accused that are essentially waiting for this. [11]

[11] From Y.D.’s perspective, he continued to express his desire to have a JPT and move the matter along:

[Counsel for Y.D.]: We had a Crown pre-trial with respect to his matters back on February 3 rd , I believe it looks like. So, we’ve been ready to schedule a judicial pre-trial for some time. I appreciate you can’t do that, but should it ever become an issue, I just want to make those comments clear. [12]

[12] The matter is once again adjourned. On April 30, 2021 another Crown appears. Mr. A. still did not have a lawyer. Mr. A. had still not had a CPT. The co-accused were all ready to have a JPT. The matter was remanded one month to May 28, 2021. Notably, the Crown does not say anything during the 11 pages of this court appearance transcript.

[13] On May 28, 2021, another Crown appeared, and nothing of any significance occurred. The same comments are made about not being able to set a JPT until the self-represented accused has a CPT. All counsel for the co-accused (including Y.D.) state they are anxious to move the matter along. Counsel for Y.D. in particular asks that a Crown be assigned to this case. The Crown does not say anything, except to agree with the Court’s suggestion that this matter be case managed [13]. The matter is finally adjourned to a case management court for June 23, 2021.

[14] On June 23, 2021 a case management hearing is held before Justice Camara. Her Honour expressed surprise when it is learned that some accused still do not have counsel, a JPT has not been held, and that the two matters before her are 14 months and 10 months old.

THE COURT: Fourteen months old already?

THE CROWN: Yes, information 20-Y-4480, which is the co-accused matter, the date of arrest on that one is April 27, 2020.

THE COURT: Okay. I need a lot more specific information, then, from [Mr. A.] and his dad about what steps they’ve taken. Fourteen months since the charges have been outstanding and to not have counsel in place is very concerning to me. [14]

[15] Later in the June 23, 2021 appearance the Crown (who appears to be the 9 th Crown to appear on this matter) offered:

THE CROWN: In regard to this matter, Your Honour, it may be time that we try to set this down for a self-represented JPT with or without counsel. [15]

[16] Justice Camara agreed and a JPT date of July 21, 2021 was confirmed.

[17] On July 21, 2021, the 10 th Crown appears. The trial dates of September 20, 21, 22, 23 and 29, 2022 are set, along with dates prior for the 11(b) application and another motion. The first dates offered for a 5 day trial were these September 2022 dates. Despite the Crown being aware that an 11(b) application was being brought, the Crown readily agreed to these dates without any comment on the record, except to say they would accept the earliest date offered.

ANALYSIS:

i) Defence Delay

[18] It was conceded by the Crown that there was no delay incurred as a result of the actions of Y.D. There were similarly no “discrete events” to be deducted from the total delay.

ii) Exceptional Circumstances – The Complexity of the Case

a) The law

[19] The Supreme Court of Canada in Jordan described “cases that are particularly complex” as one of the two categories of exceptional circumstance that the Crown may rely upon to show that delay in excess of the presumptive ceiling is reasonable:

… hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [16]

[20] Case complexity was also a factor which increased the length of acceptable inherent delay under the old Morin [17] analysis prior to the decision in Jordan. The Court of Appeal for Ontario held that the inherent time requirements of a complex case served to justify longer periods of delay that would otherwise be appropriate. [18] The complexity of a case can be demonstrated by objective factors, including the nature of the charges and the projected length of the proceedings, including the length of pre-trial motions.

[21] There is no controversy in the assertion that prosecutions which originate in lengthy investigations require “significant time for investigators to prepare and deliver disclosure for the Crown for provision to the defence”. [19]

b) The complexity of this case

[22] The Crown submits that this was a complex case that produced over 1000 pages of paper disclosure and “a multitude of video disclosure”. There was video surveillance from numerous locations and over 40 statements from police and civilians. The evidence also includes forensic examination and fingerprint analysis from various seized motor vehicles. There was also GPS tracking and search warrants. Despite this voluminous disclosure, however, the Crown and defence were eventually confident that the trial in this matter could be completed in 5 days.

[23] The Crown submits that the complexity of this trial justifies additional time above the presumptive ceiling. I agree, to a limited extent, with this submission. This was not a simple matter. It cannot, however, be said that the Crown is entitled to 7 months above the presumptive ceiling.

[24] The defence had reviewed the disclosure and was prepared to have a JPT and, after that, set a trial date as early as March 12, 2021 - 6 ½ months after the information was sworn. [20] In all cases, the presumptive ceiling allows time for the provision and review of disclosure. Even on a typical impaired driving offence, for example, a few months to provide and review disclosure is expected and often reasonable.

[25] Where the Crown’s complexity argument falters, however, is in how this case ultimately proceeded. Despite the “voluminous” disclosure, Defence had received and reviewed disclosure by March 12, 2021. Unfortunately, the Crown did nothing to move the matter forward after that point until approximately 3 ½ months later, on June 23, 2021 appearance, when the Crown finally stated that “it may be time that we try to set this down for a self-represented JPT, with or without counsel”. [21] The JPT does not occur until over 4 months after Y.D. requested a JPT, and over 5 months since his counsel conducted a counsel pre-trial.

[26] Even if I were to find that the provision and review of disclosure from August 26, 2020 to March 12, 2021 is all exceptional given the complexity of the case (which I am not going to do), that still leaves 1 year, 6 months, 2 weeks and 3 days until the anticipated end of the trial on September 29, 2022. This still exceeds the presumptive ceiling of 18 months and requires the Crown to rebut this presumption of unreasonableness.

[27] I appreciate that one of the reasons for the delay is the fact that some of the co-accused did not have counsel. In such a circumstance, however, the Crown still has the onus of rebutting the presumption of unreasonableness, and must show steps they took to move the matter along. The Supreme Court of Canada in Jordan stipulated that to rely on an exceptional circumstance, the Crown must be able to show that it took “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” and “developed and followed a concrete plan to minimize the delay occasioned by such complexity”. [22]

[28] With all due respect, mitigating steps and a “concrete plan” by the Crown are absent in this case. 10 Crown attorneys appeared on this matter from the first appearance to July 21, 2021. Having read the entire record, it reads as though it is a first appearance on almost every occasion. The Crown makes little to any comments on these appearances, save and except for the fact, at times, they are concerned about how old it is getting.

[29] I further appreciate that it is not the role of the Crown to get self-represented individuals in touch with lawyers, or follow up on their progress. But the lack of any action by the Crown to move this matter along does not position them well to meet their onus of rebutting the presumption of unreasonableness. This is further evident from the fact that the Crown makes no comments at the time that the 5 day trial is set 1 year, 2 months and 1 week down the road, knowing full well that Y.D. is bringing an 11(b) application and was prepared to have a JPT and presumably set a trial date as early as March 12, 2021.

[30] I accept that it was not likely reasonable for the Crown to sever the accused in this matter, as was suggested to some extent by counsel for Y.D. It was in the interest of justice and court resources for Y.D. to be tried with his co-accused. In the face of this joint prosecution, however, the Crown was obligated to mitigate any delay occasioned by co-accused not having counsel. Unfortunately, little was done in terms of mitigation.

c) The Covid-19 Pandemic

[31] No evidence was presented as to how the Covid-19 pandemic somehow made the otherwise presumptively unreasonable delay in this matter reasonable in the circumstances.

[32] Obviously I am aware of the disruptions caused by the pandemic to the Criminal Justice System and to the world as a whole. I am also aware that I can, in the right circumstances, make findings as to how the pandemic affected cases and created a backlog. Cases that were delayed when the courts shut down did not simply go away. They remained on the dockets and new cases (such as Y.D.’s) continued to get added. As Doorly J. stated in R. v. G.R., 2020 ONCJ 578 at paragraph 51:

Crime did not stop. With multiple streams of criminal matters newly competing for limited trial time – trials adjourned because of COVID-19 on top of trials already scheduled on top of new, in-custody trials – the Court had to be shrewd about how trial time would be allotted. The mandatory JPTs allowed all parties to talk candidly about existing cases that had been adjourned, explore resolutions and, where necessary, determine realistic or revised time estimates, in an effort to accommodate greater demand for trial time.

[33] Again, however, nothing before me demonstrates any efforts that were made to mitigate the effect of the pandemic on this case. As Fiorucci J. notes in R. v. McCudden, 2022 ONCJ 138, another case from this jurisdiction:

Nakatsuru J. (in R. v. Simmons, 2020 ONSC 7209) eloquently described the undeniable impact the pandemic has had on the criminal justice system, including a backlog of cases. However, Courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic.

The Crown has adduced no evidence to establish that the COVID-19 pandemic caused the 70-day delay from the time of the Crown pre-trial to the JPT. For example, no statistics were produced to show that prior to the onset of the pandemic, an accused person could obtain a JPT sooner than the 70 days it took for Mr. McCudden’s matter to be judicially pre-tried. There was no information presented on this application which would permit me to find that this 70-day period, or any portion of it, should be attributed to the pandemic as a discrete exceptional circumstance. Had evidence been led to show that it took longer to obtain a JPT date after the onset of the pandemic than it did pre-pandemic, the result may have been different.

[34] Similarly in the case of Y.D., I have no evidence before me to decide that the pandemic had anything to do with any of the delay in this case. In fact, it appears from the record that, for the most part, the system was running well. Disclosure was provided and reviewed in approximately 6 months, and CPTs were held. JPTs were being scheduled and trial dates were being set. The bulk of the delay in this case was not the result of the case being “complex”, or the fact that one co-accused didn’t have a lawyer. The bulk of the delay is the 14 months between July 21, 2021 and September 29, 2022. Without any evidence as to how this time is attributed to Covid-19, though, I cannot make any findings as to it being an exceptional circumstance.

iii) Conclusion

[35] I have no doubt that this investigation absorbed a large amount of resources for the police and the Crown. Unfortunately, there is nothing on the record before me to show that the Crown directed many resources towards making this case a priority. As mentioned, 10 Crowns appeared on this matter over 12 appearances. On each occasion, the “culture of complacency towards delay” [23], as warned of by our Supreme Court in Jordan, appeared to be present. There were occasions where the Crown essentially remained silent in the face of concerns being expressed by the Court and defence about how long the matter was taking. When the trial was set 14 months into the future, the Crown accepted those dates, and there is no evidence they did anything to prioritize this case over any others. None of this is to say that a Crown needs to be assigned from the outset, but clear instructions on each occasion would have been helpful in ensuring that cases do not fall through the cracks. When the Crown is tasked with rebutting a presumption of unreasonableness, more than acquiescing to adjournment requests is necessary.

[36] It may very well be that the docket in Hamilton, Ontario is full, there are not enough courtrooms or judges, or the Crown was unable to accommodate this matter by giving it priority over others. But none of that is Y.D.’s fault. He is guaranteed a trial within a reasonable time, and he did not get one.

[37] For all of the above reasons, I find that the Crown has not met its onus of rebutting the presumption of unreasonableness of the 25 months of delay in this case, and a stay of proceedings is entered pursuant to section 24(1) of the Charter.

Written Reasons Released: August 12, 2022 Justice B.G. Puddington

Footnotes:

[1] R. v. Jordan, 2016 SCC 27 at paragraph 46. [2] R. v. Jordan, 2016 SCC 27 at paragraph 47. [3] I communicated to counsel via email on July 18, 2022 that this 11(b) application was granted and the charges would be stayed, with reasons to follow. These are those reasons. [4] Form 2 Response Re: 11(b) of the Charter, paragraph 1. [5] The transcripts filed on this application address another information where it appears that Y.D. was also charged in April of 2020. I do not know what those charges involve, nor do I know what ultimately happened to them. [6] I have not been provided a transcript for this appearance. [7] I was told in oral submissions that the house arrest condition was varied to become a curfew in June of 2021. [8] Transcript of Proceedings, October 30, 2020, page 6. [9] Transcript of Proceedings, February 5, 2021, page 7. [10] Transcript of Proceedings, March 12, 2021, page 5. [11] Transcript of Proceedings, April 9, 2021, page 9. [12] Transcript of Proceedings, April 9, 2021, page 11. [13] Keeping in mind that the Crown suggested Case Management on February 5, 2021 – almost 4 months prior. [14] Transcript of Proceedings, June 23, 2021, page 7. [15] Transcript of Proceedings, June 23, 2021, page 8. [16] R. v. Jordan, 2016 SCC 27 at paragraph 71. [17] R. v. Morin, [1992] 1 S.C.R. 771 [18] R. v. Schertzer, 2009 ONCA 742, at paragraphs 124-126, 131. [19] R. v. Nguyen, 2013 ONCA 169, at paragraph 70. [20] In fact, it appears as though counsel for Y.D. was prepared to set a JPT as early as February 5, 2021, but some additional disclosure appeared to be outstanding. [21] Transcript of Proceedings, June 23, 2021, page 8. [22] R. v. Jordan, 2016 SCC 27, at paragraphs 70 and 79. [23] R. v. Jordan 2016 SCC 27 at paragraph 40.