R. v. Robinson, 2022 ONCJ 385

ONTARIO COURT OF JUSTICE

DATE: August 25, 2022 COURT FILE No.: 20M249 Cornwall, ON

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CODY ROBINSON

Before: Justice D. M. Lahaie

Heard on: August 4, 2022 Ruling released on: August 25, 2022

Counsel: Ms. M. Soucy, Counsel for the Crown Ms. M. Younes, Counsel for the Applicant, Cody Robinson

LAHAIE J.:

RULING ON S. 11(b) APPLICATION

[1] The Applicant faces charges of criminal harassment, uttering threats, break and enter, failing to comply with an undertaking and failing to comply with a probation order. He brings an Application for a stay of proceedings advancing a breach of his s. 11(b) Charter rights. The Applicant maintains that his trial, which is currently set to proceed on September 16, 2022, is beyond the reasonable period of delay.

The Law

[2] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada set out a framework for analyzing applications under section 11(b) of the Charter which was intended to “effect positive change on the justice system” and move away from the “culture of complacency” towards delay. In Jordan, the Court held that there are presumptive ceilings beyond which delay, from the date of the charge to the actual or anticipated end of an accused’s trial, is presumed to be unreasonable.

[3] In the Ontario Court of Justice, the presumptive ceiling is 18 months. However, delay caused or waived by the defence does not count towards the presumptive ceiling (Jordan, at paras. 49, 60-62, 66, 105). It is deducted from the total delay to arrive at a net delay.

[4] Defence delay does not include legitimate actions taken by the defence to respond to the charges nor does it include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate (R. v. Jordan, supra, at para. 64-65, R. v. Zahor, 2022 ONCA 449, 2022 O.J. No. 2628 (ONCA) at para. 65).

[5] If the net delay exceeds the presumptive ceiling, the Crown bears the onus of rebutting the presumption of unreasonableness by establishing that exceptional circumstances outside the Crown’s control caused the delay.

[6] Exceptional circumstances are circumstances that were not reasonably foreseeable or could not reasonably be avoided. These circumstances do not need to be rare or uncommon. They are circumstances which result in delay that cannot be reasonably remedied by the Crown (R. v. Jordan at para. 69; R. v. Zahor, at para. 67).

[7] In order to advance exceptional circumstances, the Crown must do more than simply identify difficulties in conducting a timely prosecution. It must demonstrate that it took reasonable steps, even if those steps were unsuccessful, to adapt to problems before the delay exceeds the presumptive ceiling (R. v. Jordan, at para. 70; R. v. Zahor, at para. 68).

[8] There are two possible types of “exceptional circumstances”, being discrete events and particularly complex cases (R. v. Jordan, at para. 71; R. v. Zahor, at para. 69).

[9] The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden – not the seriousness of the offence, nor the absence of prejudice, nor institutional delay. Absent exceptional circumstances, the Crown cannot satisfy its burden and a stay must be entered (R. v. Jordan, at para. 47 and 81, R. v. Zahor, at para. 69).

[10] If the net delay in question falls below the presumptive ceiling, the defence bears the burden of establishing that the delay is unreasonable (Jordan, at paras. 47-48).

Procedural History in the Applicant’s case

[11] The Applicant was arrested on allegations of uttering threats on October 5, 2020. He was released the same day on an undertaking given to a peace officer. Additional charges of breach of probation were later added.

[12] On October 7, 2020, the Applicant was arrested and charged with two counts of failing to comply with an undertaking, one count of uttering threats, one count of break and enter and three counts of breach of probation. The Information was sworn on October 8, 2021. The Applicant was held for a show cause hearing and released on October 13, 2020 to appear in remand court on November 10, 2020.

[13] On November 10, 2020, counsel requested an adjournment to review disclosure and have a counsel pre-trial (“CPT”). The matter was adjourned to December 8, 2020 to be spoken to.

[14] On December 4, 2020, defence counsel requested a date for CPT. She was offered December 23, 2020 but defence counsel was not available. Counsel was advised that there were no other dates available and that she should contact the Crown’s office at the end of the month. I note that defence counsel waited 24 days after the November 10, 2020 court appearance to request a date for CPT.

[15] On December 8, 2020, defence counsel requested a further adjournment to conduct a CPT and schedule a judicial pre-trial (“JPT”). Defence counsel specifically requested January 19, 2021 as a return date. As this was not a Domestic Violence court date, it was adjourned to January 26, 2021.

[16] On December 21, 2020, defence counsel sought a date for CPT and same was scheduled for January 8, 2021.

[17] Defence counsel requested a date for JPT from trial coordination on January 8, 2021. Her request was answered 11 days later on January 19, 2021, offering February 10, 2021 as the date for JPT.

[18] On January 26, 2021, defence counsel set the matter for JPT on record for February 10, 2021 and requested a return date of February 23, 2021 to obtain instructions.

[19] On February 23, 2021, at the request of defence counsel, the matter was further adjourned to March 23, 2021 as defence counsel sought further time to receive instructions and to seek a further JPT (one month).

[20] On March 23, 2021, at the request of defence counsel, the matter was set for a further JPT on April 30, 2021 with a next appearance in court on May 11, 2021 (one month and 7 days).

[21] On April 30, 2021, the matter was not reached. It was adjourned to May 4, 2021 to set a new date for JPT continuation (5 days).

[22] On May 4, 2021, the matter was scheduled for a JPT continuation on June 8, 2021 and the Applicant was given a return date of June 22, 2021 to allow counsel to receive instructions (one month and 18 days).

[23] On June 22, 2021, the matter was adjourned to the Assignment Court on June 30, 2022.

[24] On June 30, 2021, the matter was scheduled for a three-day trial to be held on September 14th to the 16th, 2022.

[25] The time between the swearing of the Information on October 8, 2020 and the anticipated end of the Applicant’s trial on September 16, 2022, is 23 months and 8 days, which is over the presumptive ceiling established in R. v. Jordan, supra.

[26] Following the calculation of total delay, defence delay must be deducted.

[27] Defence counsel did not waive her client’s s. 11(b) Charter rights at any point.

[28] As indicated in Jordan, it is open to a trial judge to find that other defence actions or conduct have caused delay (R. v. Jordan, supra, at para. 64).

[29] In my view, a total of 4 months and 24 days constitutes defence delay in this case as these were delays “caused solely or directly by the defence’s conduct” (R. v. Jordan, para. 66).

[30] Specifically, the following delays are attributable to the defence:

1. Defence counsel waited 24 days after the November 10, 2020 court appearance to request a date for CPT.
2. Rather than conduct a full JPT on February 10, 2021, defence counsel stated that she would seek instructions regarding resolution. The further JPT was sought, as the initial focus of counsel was on resolution on February 10th. In a case which is not complex, there should be only one JPT, absent issues of import, such as missing essential disclosure. If defence counsel is well-prepared for the JPT, he or she will have instructions in advance regarding whether the matter can be resolved and on what basis that might occur. In the present case, the judge, the Crown and the Defence could have and should have conducted a case management JPT on February 10th but that did not occur. Any delays thereafter caused by defence counsel failing to assert that case management should also be discussed, fall at the feet of defence counsel, absent further evidence that either the court or the Crown caused there to be a more limited use of the time set for JPT. (Reference in such cases should be made to the return date following JPT: February 23 to June 22 – 4 months).

[31] A non-exhaustive list of the reasons which may cause the additional time between the initial JPT and subsequent JPTs to be attributable to the Crown or to institutional delay include missing disclosure of import, an offer by the Crown to discuss a proposed resolution with the complainant before proceeding to case management discussions, the initial JPT not being reached and having to be rescheduled. There are a number of reasons why a further JPT might be required. However, the materials before me make plain that defence counsel sought to limit discussions to resolution. Had she had more complete instructions from the outset, the further JPT would not have been required.

[32] When I subtract the defence delay of 4 months and 24 days from the total delay of 23 months and 8 days, the net delay in this case is 18.5 months which is above the presumptive ceiling.

[33] The parties agree that this case does not involve increased complexity which might impact a delay analysis. The focus of their arguments centered on whether the COVID-19 pandemic constituted a discrete event and thus, exceptional circumstances.

Position of the Parties and Ultimate Findings

[34] Crown counsel argues that the COVID-19 pandemic created exceptional circumstances as there were several backlogged cases which needed to move through the justice system.

[35] Defence counsel argues that there is an absence of evidence that the pandemic had any impact on date setting in this case and more importantly, that there is an absence of evidence that any steps were taken by the Crown to mitigate delay.

[36] Following my review of the record before me, I find that the COVID-19 pandemic had no real impact on these proceedings. Fortunately, the justice participants in this jurisdiction have managed to work collaboratively, creatively and efficiently to keep cases moving through the justice system.

[37] In the present case, there is an absence of evidence that any concrete steps were taken by the Crown to attempt to mitigate delay. The Crown’s office in this jurisdiction works collaboratively with trial coordination when Jordan issues are identified, to attempt to move matters forward when other trials collapse and free up trial time. It appears that the Applicant’s matter was simply missed.

[38] The resulting delay of 18.5 months is an unreasonable time to trial. The Application is granted and the charges are hereby judicially stayed.

Released: August 25, 2022 Signed: Justice D.M. Lahaie