ONTARIO COURT OF JUSTICE
CITATION: R. v. Hazizaj, 2022 ONCJ 386
DATE: August 26, 2022
Toronto - Metro West
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AMADEO HAZIZAJ
Before Justice W. B. Horkins
Heard on July 25, 2022
Reasons for Judgment released on August 26, 2022
P. Travers................................................................................................... counsel for the Crown
A. D. Gold and E. Williams.................................................................................. for the accused
W. B. Horkins, J.:
[1] This is an 11(b) application for a stay of proceedings.
[2] S. 11(b) of the Canadian Charter of Rights and Freedoms guarantees every person charged with a criminal offence the right “to be tried within a reasonable time.”
[3] The initial and primary source of delay in this case has been the continuing impact of the Covid pandemic on all facets of court operations. This case is 31 months old. The Covid pandemic clearly is responsible for some of the delay in this case coming to trial. However, after applying the Jordan framework of analysis the resulting “net delay” here equals approximately 23 months. Having exceeded the Jordan ceiling of 18 months the delay in bringing this case to trial is presumptively unreasonable, therefore constitutionally intolerable, and the prosecution must be stayed.
[4] My reasons for reaching this conclusion are set out below.
THE 11(B) FRAMEWORK OF ANALYSIS[^1]
[5] On first reading this section it would appear to be a straightforward and non-controversial guarantee of a simple right to timely justice and yet, s.11(b) has probably generated more litigation than any other section of the Charter.
[6] After the Charter came into force in 1982 s.11(b) had a significant impact on the criminal justice system. There was initially no uniform approach to the issues raised and a concerning volume of cases were being summarily stayed for unreasonable delay. Eventually a uniform analytical framework of analysis for s.11(b) applications was developed by the Supreme Court, initially in R. v. Askov[^2] in 1990 and subsequently as modified in R. v. Morin[^3] in 1992. Then in 2016, in R. v. Jordan[^4], the Supreme court jettisoned the Morin framework, finding it to be “unpredictable, confusing and complex”. The Court rejected the “micro-counting” and dissection of minutiae in the timelines of case chronologies that had come to characterize rulings that applied the Morin framework. The Court articulated a new and different approach, the Jordan framework.
[7] The Jordan framework of analysis attempts a more straight forward, and some would say more arbitrary, analysis by creating two presumptive ceilings within which criminal cases must be brought to trial or be stayed. In the provincial courts the ceiling is 18 months. In the superior courts the ceiling is 30 months. The presumptive unreasonableness of a case that exceeds the ceiling may only be rescued by “exceptional circumstances”.
[8] In assessing the application before me I have the benefit of a recent decision of our Court of Appeal, R v Zahor[^5]. Zahor contains a very complete and current summary of the Jordan framework of analysis.
[9] For ease of reference, I set out here the 11(b) framework of analysis articulated by Justice Coroza in the Zahor case at paragraphs 60 through 75:
[60] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.
[61] Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan, at para. 47.
[62] Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.
[63] Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61.
[64] Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63-64.
[65] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65. This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.
[66] Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan, at para. 46. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances: Jordan, at para. 105.[^5]
[67] Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan, at para. 69.
[68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.
[69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan, at para. 71. 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: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.
[70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling: Jordan, at para. 75.
[71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.
[72] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan, at paras. 75-77.
[73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”: Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.
[74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody, at para. 64.
[75] For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered: Jordan, at para. 47. However, for charges that were laid before the release of Jordan, the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan, at para. 96; Cody, at paras. 46, 67.
The Chronology of this Case
[10]
| DATE | EVENT |
|---|---|
| January 2, 2020 | Accused arrested - Information Sworn charging the accused with Sexual Assault. |
| Feb 19, 2020 | The accused’s first appearance out of custody. Disclosure is ready and case put over to permit mandated Counsel Pre-trial and Judicial Pre-Trial conferences. |
| March 15, 2020 | The Covid-19 pandemic is declared by the World Health Organization. Court directs mass adjournments to May 25, 2020 |
| May 25th, 2020 | Again, court directs matters adjourned one month due to Covid. |
| July 15, 2020 | The Counsel pre-trial is held – admissions made – no Charter issues – estimate for trial is 2 days |
| August 5, 2020 | Judicial Pretrial. Two-day trial estimate confirmed. However, as an out of custody matter Covid protocol priority dictates that no trial dates available. Adjourned to august 31, 2020. |
| August 31, 2020 | Both Crown and Defence ready to set trial dates. Court not assigning dates. Adjourned to “Covid adjournment date” October 5, 2020 |
| October 5, 2020 | Both parties ready to set dates but none available due to Covid protocols. |
| November 9, 2020 | Both parties ready to set dates but none available due to Covid protocols. Adjourned to “Covid adjournment date” December 14, 2020. |
| December 14, 2020 | The first trial date set for May 5 & 6, 2021. April 12 offered, defence not available. |
| March 18, 2021 | Trial confirmation date – both parties confirm readiness |
| April 12, 2021 | On December 14, 2020 this was the earliest trial date offered. Therefore, delay from April 12 to May 5 2021 is conceded as defence delay. 24 days. |
| May 5 and 6, 2021 | Trial date cancelled due to the Court’s COVID-19 directive. Rescheduled to a date 10 months away, February 24 & 25, 2022 |
| July 2, 2021 | The 18-month Jordan ceiling date |
| January 12th, 2022 | Trial confirmation date. Both Crown and defence ready to proceed and agreeable to proceeding via Zoom. Trial date confirmed. |
| February 24, 2022 | Second Trial date – no judge available – trial list stacked – The judge in the assigned courtroom was already hearing another trial. Matter held until late in the day. Court offers time the following week but neither counsel available. Matter adjourned 5 months to July 25 and 26, 2022 |
| July 25, 2022 | The third trial date – trial not proceeding due to 11 (b) application hearing - |
| July 26, 2022 | Presumptive completion of trial for purposes of this application. |
The Jordan Framework Applied
Step 1; Total delay.
[11] The total delay is 31 months.
[12] By agreement this application is being considered on the basis that the trial was to have been completed on July 26th, 2022.
[13] This application was made returnable in error on what was to have been the third trial date set for this matter. Scheduling this application in non-compliance with the rules of court requiring it to be heard at least 60 days prior to trial, although inadvertent, has precipitated a de factor adjournment to a new trial date of October 19 and 20, 2022, a delay that would be accounted as “defence delay” in any event.
Step 2; Calculation of the Net Delay
[14] Net delay is calculated by subtracting defence delay from the total delay. The delay from April 12, 2021, to May 5th, 2021, is attributable to the defence. This represents the difference between the first trial date offered, a date that counsel for the accused was unavailable, and the date actually scheduled for trial.
[15] The “net delay” is therefore 30 months.
Step 3: Compare the Net Delay to the Presumptive Ceiling
[16] The presumptive Jordan ceiling is 18 months for matters tried in the provincial court. That ceiling was passed more than a year ago in July 2021. A net delay of 30 months far exceeds the Jordan 18 month ceiling and therefore is presumptively unreasonable. The Crown bears the burden of rebutting this presumption by demonstrating “exceptional circumstances”.
Step 4: Consider Exceptional Circumstances
[17] The “exceptional circumstance” relied upon by the Crown in this case is the overall impact of the Covid pandemic on court operations.
[18] In the context of the Jordan framework of analysis an “exceptional circumstance” is something that lies beyond the Crown’s control, in that it is reasonably unforeseen or reasonably unavoidable and, in either case, results in delay that cannot be reasonably remedied by the Crown.
[19] The impact of the Covid pandemic on court operations has been universally recognized as an unforeseen and unavoidable event. Significant efforts have been made by all members of the justice community to manage the many challenges of operating a fair and efficient system in the grips of the Covid pandemic.
[20] I agree with the conclusion made by Justice Gorman in a recent article in the Criminal Law Quarterly[^6];
It appears well settled that Canadian judges can take judicial notice of the pandemic and its impact on the ability of individuals to travel or appear in-person at a courthouse.
[21] It is an historic fact that the Covid-19 virus emerged from China and arrived in Canada in early 2020. In March 2020 Canada recorded its first official Covid death and The World Health Organization officially recognized the spread of the virus as a pandemic.
[22] There is no doubt that the pandemic had a negative impact on court operations generally and specifically that the wait times to trial increased as a result. The Covid pandemic initially precipitated a near total shut down of criminal trial proceedings in the Ontario Court of Justice in the spring of 2020. The Court responded quickly with various protocols and directives to manage both new cases and cases that were already in the system. The court stopped scheduling certain cases and many criminal proceedings stalled or quickly moved to virtual courtrooms and heard via Zoom.
[23] It is reflected in the transcripts filed on this application that this matter was identified and triaged at a lower priority than many other cases. This classification was based, firstly, because it was still in the intake phase, no trial date had yet been set, and more significantly, because the accused was out of custody.
[24] The evidence is that the court suspended offering trial dates for out of custody trials such as this between late May and early December 2020, a period of about 6 ½ - 7 months.
[25] The first offer of a trial date in this case occurred when it came into court in December 2020. April 12, 2021, was offered. The case would have been 15 months old on that date. Defence counsel was not available for trial on the April 12th date and so it was set for May 5th and 6th, a month later. Deducting that month as defence delay recalculates the “net delay” at that point in time to 15 months, or 3 months below the Jordan ceiling on this first scheduled trial date.
[26] Well in advance of the May 2021 trial date, on March 18th, 2021, the case returned to court for a confirmation hearing. The Court and the parties all confirmed readiness to proceed as scheduled on May 5th, 2021.
[27] On the scheduled trial date the matter did not go ahead. It was adjourned by the court pursuant to a “directive”. I have no evidence clarifying what the directive was. The matter was simply re-scheduled to proceed on a new date, a full ten months later, on February 24th and 25th 2022.
[28] Again, I note that, had the case gone to trial as scheduled on May 5th, 2021, it would have been comfortably under the Jordan ceiling despite the significant impact of the pandemic on trial scheduling throughout the previous year.
[29] On January 12th, 2022, in advance of the scheduled second trial date, this case again returned to court for a confirmation hearing. It was noted on the record that the parties were agreeable to proceeding remotely, via Zoom. The court and both parties again agreed that the matter was ready to proceed to trial as scheduled.
[30] On February 24th, 2022, despite being confirmed to proceed, and with both the Crown and defence attending ready to go to trial, there was no court available. Another trial was already underway before the judge in the courtroom where the case was scheduled to be tried. The case was held down until the afternoon in the hope of finding another judge. There was no judge and no courtroom available to hear the matter. The case was almost 26 months old.
[31] The trial coordinator offered to put the matter over to the following week but that offer was jointly deemed “not realistic” by both the Crown and defence. The trial case was adjourned, for five months, to the next available dates, July 25th and 26th, 2022, at which point the case would be over 2 and a half years old.
Quantifying the Impact of Covid
[32] In applying the Jordan framework to the history of this case clearly some time frame must be attributed to the impact of the pandemic and deducted. The very difficult question is, how much time should be deducted?
[33] An “exceptional circumstance”, in the context of the Jordan framework of analysis, means a circumstance that is not only unavoidable but also one that results in delay that cannot be reasonably remedied.
[34] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that reasonable efforts were made to remedy the problems impairing the progress of the case through the justice system and pushing it into the constitutionally intolerable zone of unreasonable delay.
[35] The Jordan framework directs that the analysis must include an assessment of whether the Crown, and the criminal justice system, took steps to mitigate the delay. Otherwise, Crowns would be informally relieved of their burden to show that presumptively unreasonable delay truly qualifies as an exceptional circumstance.[^7]
[36] As Professor Paciocco explains in her paper Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19[^8], putting a number on “Covid delay” is arguably impossible.
…. systemic mitigation efforts cannot be meaningfully assessed within the Jordan framework. There are overwhelming problems associated with asking judges to scrutinize institutional responses to COVID-19 when adjudicating individual section 11(b) claims, ranging from a lack of data to separation of powers considerations. … .[^9]
[37] Quantifying Covid delay is, if not impossible, certainly challenging. Most courts have expressly rejected the idea of there simply being a blanket exemption. As noted by Professor Paciocco, a blanket exemption would relieve all participants in the justice system from making best efforts to bring cases to trial in a reasonable time. Precisely the situation that Jordan seeks to avoid.
[38] This duty to mitigate does not rest solely on the Crown, it rests on “the justice system” as well. To quote Justice Moldaver at para. 75 of Jordan; “Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.”
[39] Different approaches have been taken in trying to put a number on Covid delay.
[40] The Simmons case[^10] is often cited in proposing that the entire time from the start of Covid’s impact on the system to the trial date be deducted. However, I agree with the position taken by Justice Agro in Vorontosov[^11] and Justice Camara in Delves[^12] ;
“Simmons and other authorities cited by both counsel are trial level decisions and are not binding upon me. I agree with Justice Agro’s finding that Simmons reflects considerations specific to the Superior Court of Justice and the challenge of scheduling jury trials throughout the pandemic. … A blanket approach which is devoid of a contextual analysis is contrary to the approach mandated in Jordan.
[41] In R. v. Ajgirevitch, 2022 ONCJ 237, Justice R. Wright had evidence that the time to trial in the Scarborough courthouse had expanded from an average of 9 months to an average of 12 months during the period of the time that he was analysing. He concluded that Covid was the cause and therefore attributed the difference of 3 months to the impact of the pandemic.
[42] In R. v. Brown, 2021 ONCJ 663, the Crown proposed attributing the 6 months during which the court operations were essentially suspended in 2020. Justice Bhabha was not inclined to adopt that blanket approach because she in fact had evidence that a significant reason for delay in that case was delayed disclosure, not just the pandemic.
[43] In R. v. Meawasige, 2022 ONCJ 190, Justice Thomas dismissed an 11(b) application in a case with a net delay of 18 months and 22 days. The Crown had not provided evidence of any effort to mitigate the delay in bringing the case to trial. At para. 37-38 she comments,
[37] … I note this is my third case of 11(b) where the Crown has outlined Covid as an exceptional circumstance but has not provided any evidence of any mitigation for the delay caused by the pandemic. And other jurists in College Park have found the same, such as R. v. Brown.
[38] The Crown cannot continue to point to the pandemic as a discrete event without some evidence of mitigation or cause for specific periods. I make this point not in response to the Crown’s personal deficiency in presenting this case. Instead, I find that Ms. Minchopoulos was not provided with any evidence, as seen in Lawson, that would allow her to rebut the presumption.
[44] In R. v. Greenidge, 2021 ONCJ 57, 2021 OJ 468, Justice P.F. Monahan stressed the point that it is incumbent upon the Crown to establish on a balance of probabilities that the amount of delay that the Crown seeks to deduct was in fact caused by the pandemic. To the same point see Justice Misener’s analysis in R. v. Li, 2021 OJ 7392.
Conclusion
[45] At this stage of the ongoing impact of the pandemic on court operations, and focusing on the chronology of a particular matter, case specific evidence of remedial efforts is necessary to support a claim of “exceptional circumstances”. Without that evidence there is no foundation to make findings of fact to rebut the existing presumption of unreasonable delay.
[46] The transcripts filed on this application indicate that early in the pandemic a general freeze on providing trial dates for out of custody cases seems to have lasted for about 6 or 7 months from May 2020 to December of that year. I think it would cast an unrealistic burden on the Crown to further explain the impact of the pandemic during that period of time and I will deduct approximately 7 months from the “net delay” as being attributed to that “exceptional circumstance”. This deduction brings the “net delay” number in this case down to approximately 23 months, a delay still well in excess of the ceiling.
[47] I have no statistical evidence before me to compare the time to trial before Covid or during Covid. I have no evidence before me of specific efforts to move this case forward once the courts opened and virtual trials were being conducted. I have no case specific evidence of efforts to expedite this case after the trial date was set for the first time in December 2020 or as subsequent scheduled trial dates came and went.
[48] The events following the cancellation of the first two scheduled trial dates amplify my concerns with the accumulated delay in this case.
[49] The first trial date, in May 2021, was preceded by a confirmation hearing at which the Court confirmed that the trial was ready and would go ahead as scheduled. Yet, a few weeks later when the accused expected to have his trial, the trial date was simply canceled pursuant to a “directive”. There were still several weeks until the Jordan ceiling would be breached. A new trial date was scheduled for a date 10 months away.
[50] Then again, prior to the second trial date, there was a confirmation hearing. Both the Crown and defence confirmed that they were ready to go to trial as scheduled. The Court again confirmed the trial date. Both Crown and defence had advised the court earlier that matter could proceed virtually. Again, the accused arrived at his trial date only to find that his trial was not going to go ahead as planned. The case was already well past the Jordan ceiling. The only available judge was already occupied with a trial. I have no explanation why there was no other judge available. Apparently, no arrangements had been made to try the matter via Zoom. I suspect from the way the transcript reads that the courtroom was probably double booked forcing the case to be put over again.
[51] I do know from personal observation, and take judicial notice, that the Court, from the Chief Justice down to the local administrative judges, the various Crown offices and in particular the Trial Coordinators in this jurisdiction, have worked extremely long and hard hours in difficult circumstances throughout the pandemic to try their best to make the court system work as fairly and efficiently as humanly possible.
[52] However, in focusing on this particular case, I must agree with the submission of counsel for the accused that in fact there is a lack of evidence of any proactive steps having been taken with respect to expediting this case once it was clearly heading into jeopardy. Nor is there any evidence of specific proactive steps having been taken to ameliorate the growing delay in the months after the Jordan ceiling was breached or following the cancelation of the trial dates in February 2022.
[53] In summary, there is an insufficient evidentiary foundation for me to conclude on a balance of probabilities that the impact of the pandemic was in fact the cause of the entire delay beyond the Jordan ceiling. I am not prepared to presume or conclude that the net delay, or some further portion of it, beyond the ceiling should be classified as attributable to the “exceptional circumstance” of the pandemic. I am also not prepared to presume or speculate on what remedial efforts were or were not directed to ameliorating that excessive delay in this particular case.
[54] Having applied the Jordan framework to the extent possible on the evidence before me I conclude that the time to trial in this case exceeds the presumptive ceiling and that the delay is therefore constitutionally unreasonable and in breach of the accused’s s.11 (b) right be tried within a reasonable time.
[55] The charges against the accused are therefore Stayed.
Released: August 26, 2022
Signed: “Justice W.B. Horkins”
[^1]: Paragraphs [5] – [ 9] herein are a repetition of what I have just recently written in another s.11(b) ruling, see R v McCann, 2022 ONCJ 336 [^2]: R v Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199 [^3]: R v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 [^4]: R v Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 [^5]: R v Zahor, 2022 ONCA 449, [^6]: 2022 70 C.L.Q. 397, The Virtual Court and the Presence of the Accused, Judge Wayne Gorman [^7]: Osgoode Hall Law Journal 57.3 (2021) 853, at 839 https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss3/10 [^8]: Osgoode Hall Law Journal 57.3 (2021) 853, at 839 https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss3/10 [^9]: Professor Paciocco’s comments must be understood in the context in which they are made. She is promoting an alternative s.11(b) remedy of a sentence reduction. She argues that an alternative to a stay is necessary because Covid delay just doesn’t fit fairly into the Jordan framework of analysis. [^10]: R v Simmons, 2020 ONSC 7209, [^11]: 2021 ONCJ 169 @ 43 [^12]: 2020 ONCJ 141