ONTARIO COURT OF JUSTICE DATE: 2022 10 18 COURT FILE No.: Brampton 19-26721-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

DAVID DESLAURIERS

Before: Justice P.T. O’Marra

Heard on: September 19, 2022

Reasons for Judgment on Delay Application released on: October 18, 2022

Counsel: Ryan Moir..................................................................... counsel for the Respondent Crown Carson Hurley and Marek Tufman........ counsel for the Applicant David Deslauriers

P.T. O’Marra, J.:

Introduction

[1] These are my written Reasons for Judgment in granting an application for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms as a result of an infringement of the Applicant's right to a speedy trial pursuant to s. 11(b) of the Charter.

[2] The Applicant was investigated, arrested, and charged with assault (x2) and assault with a weapon on August 28, 2019. The Information was sworn on the same day. The trial in this matter was set to commence before me in the Ontario Court of Justice on September 21, 2022 and anticipated to conclude on September 22, 2022, which was 1,120 days or 36 months and 24 days from the date of the Information. On September 19, 2022, the application was argued before me. I granted the application with reasons to follow.

The History of the Case

The Allegations

[3] Although no information was provided regarding the substantive allegations in this matter, it seems that the allegations against the Applicant were historical in nature. Based on the counts contained in the Information, the Applicant was alleged to have assaulted Rhoda Breen on two occasions between October 1, 2017, and October 31, 2017, and on a third occasion with a suitcase between August 1, 2018, and August 31, 2018.

[4] The Applicant was arrested on August 28, 2019 and held for a bail hearing. He was released on September 5, 2019.

The Positions of the Parties

[5] The Crown and Applicant agreed that the delay of 303 days or 9 months 29 days from the swearing of the Information, August 28, 2019, to the first trial June 25, 2020, should not be deducted.

[6] The Applicant conceded that the exceptional circumstances caused from the pandemic resulted in a portion of time being subtracted.

[7] The Applicant argued that there was no defence delay and no waiver of the Applicant’s section 11(b) rights.

[8] According to the Applicant, after the courts opened and cases started to “move through the judicial process without obstacle”, as of August 23, 2021, the parties all agreed that the matter could be set for trial. The period from August 23, 2021, and the anticipated conclusion of the trial on September 21, 2022, amounted to 394 days or 12 months and 29 days. The Applicant submitted that even if the entire period between the adjourned trial date, June 25, 2020, and August 23, 2021, was attributed to the defence, that still left 697 days, or 22 months and 28 days of delay that could not be attributable to the Applicant, or to exceptional circumstances.

[9] The Crown submitted that the period between November 12, 2020, and the trial scheduling conference on October 26, 2021, should be entirely attributable to the “inaction” of the Applicant. This time represented 348 days or 11 months and 14 days. The Crown further submitted that the third-party application that was scheduled on July 21, 2022 and abandoned prevented the Crown from taking action to expedite the trial being heard earlier. Since the third-party application was abandoned and ultimately became frivolous, the entire time between October 26, 2021 and July 21, 2022, should be attributed to defence delay. This period represented 238 days or 7 months and 26 days. Thus, the total defence delay that should have been deducted was 586 days or 19 months and 15 days. Therefore, according to the Crown, the total delay (1,120 days) minus the defence delay (586 days) is 533 days or 17 months and 25 days.

[10] The Crown further submitted even if the presumptive ceiling was breached that the COVID-19 pandemic resulted in the courts being shut down which impacted this case from March 18, 2020, until October 30, 2020, for a delay of 236 days or 7 months and 12 days.

[11] In the alternative, the Crown argued since the first trial date of June 25, 2020, was presumptively adjourned due to COVID, the case was not before the court until November 12, 2020. Due to the closures, that entire time period of 140 days or 4 months and 18 days should be considered exceptional circumstances.

[12] Therefore, the 533 days less 140 days (exceptional circumstances) equals 393 days or 13 months total delay.

The Chronology

[13] The history of the proceedings was accurately set out in the Applicant's factum and the Crown's response. I do not propose to recite the pace of the proceedings in its entirety or cite specific transcripts; however, the history is based on all the transcripts, Crown disclosure, e-mails, and other litigation documents and records.

[14] The chronology is as follows:

The Jordan Analytical Framework

[15] Now turning to the Jordan analytical framework:

[16] In determining whether a person's section 11(b) right has been infringed: First, the court must assess the total delay. This is a straightforward approach that begins with the laying of an Information and ends with the actual or anticipated conclusion of the trial. [1]

[17] Second, defence delay must be deducted from that total, which is the Net Delay. [2]

[18] Third, if that delay is beyond the 18-month ceiling for Ontario Court matters, it is presumptively unreasonable. [3] The Crown bears the onus of justifying that delay. [4] If, the Crown cannot rebut the presumption a stay follows. [5] Justification for delay is restricted to "exceptional circumstances." [6]

[19] Exceptional circumstances lie outside the control of the Crown in that they are: (i) reasonably unforeseen or reasonably unavoidable, and (ii) cannot be reasonably remedied once they arise. [7]

[20] Exceptional circumstances are recognized as discrete events or case complexity. In the case of the former, the delay attributable thereto is deducted from the total. In the case of the latter, if found, delay beyond the ceiling may be deemed reasonable. [8]

[21] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached. [9]

[22] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. [10]

[23] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. [11]

[24] The total delay in this matter was 1,120 days or 36 months and 24 days.

[25] It was agreed in this case that the matter was not complex.

Analysis

[26] There was unanimity that the initial time from August 28, 2019, to June 25, 2020, represented a normal and regular period of delay. Thus, the period of 303 days or 9 months and 28 days should not be deducted.

Was there any waiver or defence-caused conduct?

[27] The Crown argued that the Applicant did not move the case along after the case was adjourned to November 12, 2020, until the scheduling conference date of October 26, 2021.

[28] The case was adjourned twice, on the trial date, June 25, 2020, and again on October 8, 2020, to November 12, 2020, due to the COVID-19 pandemic shutdowns.

[29] On October 27, 2020, after being advised by the Crown that the case cannot be resolved on suggested terms by counsel, counsel responded in an email that he was disappointed and that he would “not be taking any further steps in this matter at this time”. On January 27, 2021, and February 10, 2021, the assigned Crown inquired about setting a trial date. Specifically, the assigned Crown indicated on January 27, 2021, the documentation would be sent in to assist in setting a trial date.

[30] A review of the transcript from February 5, 2021, suggested that the Applicant wished to investigate the issue of potential loss of jurisdiction. The matter was adjourned to April 9, 2021. The Crown followed up on February 10, 2021, asking “are we ready to set this for trial”. On March 9, 2021, counsel emailed the following response to the Crown:

Sorry that it took me a month to get back to you.

You can set it down, without prejudice to my being able to renew at the trial the argument that the jurisdiction was lost.

Lets get it done :-)

[31] On April 9, 2021, the agent for counsel indicated nothing about any jurisdictional issues and that “counsel has been working with Ms. Brar, the designated Crown to set a trial date, and asked me to put it over to July 23 rd so they can set a date”.

[32] On July 23, 2021, counsel’s agent attended and asked that the matter be adjourned to September 24, 2021, as they have been “waiting for the Crown to set a trial date”. There was conversation about the protocol in setting a trial date by reaching out to the trial coordinator’s office to schedule a trial scheduling conference. I am satisfied that there was a misunderstanding or a misstep in the process. However, I am not prepared to assign that misstep to the Crown based on the correspondence that I have reviewed.

[33] On September 24, 2021, counsel indicated that a scheduling conference with the trial coordinator was set for October 4, 2021. The matter was adjourned to November 19, 2021. The trial dates and the third party application date were confirmed on the record. I understand that the actual trial scheduling conference did not take place until October 26, 2021, and not October 4, 2021.

[34] In my view, the defence could have taken steps to set a trial date after November 12, 2020, despite seeking to resolve the matter and sorting out the issue of the election. In my view, the Applicant could have taken far more aggressive steps in setting a trial date. This period was consumed with defence inaction and procrastination. By December 6, 2020, the trial coordinator had begun a remote date setting procedure, and therefore there should not have been any confusion surrounding the scheduling of trial dates remotely by August 2021.

[35] I cannot agree that after the Crown sent an email on August 23, 2021, requesting that a trial scheduling conference be set triggered the date that “all parties were ready to move the matter forward on that day” as set out in paragraph 33 of the Applicant’s factum. In my view, despite some fault on both the Crown and the Applicant in scheduling the trial scheduling date, I am satisfied that the parties were ready to set a date on October 26, 2021.

[36] I disagree with the Crown’s argument that since the third party application was abandoned that this in some way inhibited the Crown’s ability to mitigate the delay in this case. It is common practice that the trial dates are first selected, and the pretrial motion dates are then scheduled no less than 60 days prior to the scheduled trial date. Since this was the first trial date that was offered, in my view, there would not be any reasonable expectation that there would be earlier dates offered for a two-day trial commencing before July 21, 2022, the moment that date was vacated.

[37] I find that the expectation that the 11(b) application was to be heard on July 21, 2022, to have no bearing on the delay in this matter as the trial dates were already scheduled and no earlier trial dates had been offered.

[38] Therefore, I find that the defence delay from November 12, 2020, to October 26, 2021, was 349 days or 11 months and 15 days.

[39] That would leave a net delay of 771 days or 25 months and 3 days. Therefore, the presumptive ceiling has been breached.

Were there any deductions for exceptional circumstances?

[40] There is no doubt that the COVID-19 pandemic represents a discrete event, and that a portion of the delay should be deducted. However, courts in Ontario have disagreed as to how much time should be deducted as a result. At a minimum, the delay from the first trial date, June 25, 2020, until November 12, 2020, was as result of the COVID-19 pandemic and therefore, is an exceptional circumstance. That period of delay represented 140 days or 4 months and 18 days.

[41] The real question before me is whether the delay from October 26, 2021, to September 21, 2022, or 332 days or 10 months and 28 days, should be characterized as COVID-19 delay and thereby a reasonably unforeseen and reasonably avoidable discrete event.

[42] In oral submissions the Crown relied on Justice Harris’s recent decision in R. v. Sharma, 2022 ONSC 5192, which was released on September 13, 2022. His Honour concluded that the delay of the preliminary hearing in the Ontario Court of Justice that was adjourned in June 2020 due to COVID-19 and subsequently re-scheduled in June 2021 was entirely attributable to the effect that “… the docket of cases swelled, bloating the process. The system stopped flowing through and became chronically backed up. This was unprecedented in the modern history of the courts.” [13]

[43] Similarly, some courts have taken the position that the entire period between the anticipated end date of the trial and the commencement of the second trial date should be deducted from the delay. The reasoning behind this approach is that, but for the court closures caused by the pandemic, the trial would have proceeded within the timeframe allowed by Jordan. This has been the approach taken by several trial level courts in the Superior Court, in the context of jury trials [14], and recently in nonjury trials. [15] However, those were trial level decisions and are not binding upon this court.

[44] The Crown relied on the exceptional circumstances created by COVID-19 that created a backlog of cases and bloated the system. It is important to keep in mind that Peel had a serious backlog of cases pre-pandemic. It is only the enhanced backlog caused by COVID-19 that can be considered and deducted as an exceptional circumstance. [16]

[45] The Jordan framework requires a case specific analysis, and it is not reasonable to apply a blanket approach over the entire period between the two trial dates. Justice Moldaver explicitly cautioned against this approach. [17]

[46] Courts have also warned against simply assuming any delay coinciding with the pandemic should be deducted as a result of exceptional circumstances. In R. v. Li, [2021] OJ No 7392 there was a dispute about the Crown’s disclosure obligations during the pandemic, and specifically whether a failure to provide disclosure for several months during the court closures should be regarded as delay arising from exceptional circumstances. The Court held that “the onus is on the Crown to show that the pandemic CAUSED the delay and since the case was not ready to proceed due to outstanding disclosure both before and after the period the courts were closed the Crown has failed to do so”. [19]

[47] Justice Camara in R. v. Delves, 2022 ONCJ 141 and Justice Agro in R. v. Vorontosov, 2021 ONCJ 169 grappled with the same question, on whether the delay in scheduling the trial was the result of COVID-19 or was the delay the lack of resources in Hamilton.

[48] I have reached the same conclusion as Justice Camara [22] as well as Justice Duncan [23]; that there is a lack of an evidentiary foundation before me for an analysis of the impact of COVID-19. I have no statistical data that was presented regarding the impact that the COVID-19 pandemic has had on scheduling trials in Brampton.

[49] It is difficult to assess those cases that were impacted by COVID-19. The Ontario Court of Justice had developed its own policies and practices to react to the province wide lockdown and its effect on the administration of justice. This was conducted in consultation with the Provincial Health Science Table and the Ministry of the Attorney General.

[50] During Phase 1, trials and preliminary hearings which were scheduled to commence after July 6, 2020, were to proceed on their scheduled dates. Out of custody trials scheduled between March 16 and July 20, 2020, were presumptively adjourned, with the earliest possible date for arranging a new trial date beginning August 31, 2020.

[51] This case, by the time the first trial date was adjourned, was just under 10 months old. Once the parties were ready to schedule the second trial date, for several reasons, including but not limited to defence delay, COVID-19, and presumptive adjournments, the case was 791 days or 25 months and 29 days old. The Crown had a duty to mitigate delay caused be exceptional circumstances.

[52] The Crown cannot rely on or point to a past difficulty. According to Jordan, the Crown has three responsibilities to ensure that the accused is tried within a reasonable time: To anticipate potential scheduling problems; take steps to avoid them and to address any problems promptly. [24]

[53] Without any doubt, by January 2021, the Crown was encouraging the Applicant to set a trial date, however, by October 26, 2021, when the trial date was about to be scheduled a further 11 months out, no steps were taken by the Crown to remedy the problem. There is no evidence that the Crown made any attempt to secure earlier dates. No attempts to move any other cases. There is no evidence regarding any steps the Crown took, if any, to mitigate the impact of COVID-19 and the backlog of cases. [25]

[54] In the end, the first trial date that was offered was 11 months away and the delay was outside the presumptive ceiling for trials in the Ontario Court of Justice. Thus, I am not prepared to characterize this period as an exceptional circumstance. The only period, as I have stated earlier, that warranted an appropriate deduction for the exceptional circumstance of COVID-19 was limited to the original trial date June 25, 2020, to November 12, 2020. This resulted in a deduction of 140 days or 4 months and 18 days.

Conclusion

[55] Thus, the total net delay, at 631 days or 20.74 months, is presumptively unreasonable. There will be a stay of proceedings in this matter. [26]

Released: October 18, 2022 Signed: Justice P.T. O’Marra