Court File and Parties

Court File No.: 20-2255 Date: 2022-10-03 Ontario Court of Justice Location: Windsor, Ontario

Between: His Majesty The King

— AND —

Ernest Gyamfy

Before: Justice Shannon L. Pollock

Heard on: September 23, 2022 Reasons for Judgment Released on: October 3, 2022

Counsel: Sue Szasz and Andrea Harris, for the Crown Sandra Kimberg, for the Defendant

Ruling on Section 11(b) Charter Application

Pollock J.:

Introduction

[1] The Applicant faces seven (7) charges of possession for the purpose of trafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act as well as three (3) charges related to allegations of possession of a loaded handgun. These are serious charges. The seriousness of the charges, however, is not a consideration in an 11(b) analysis.

[2] The defence seeks a ruling that the Applicant’s section 11(b) Charter right has been breached and that, as a result, a stay should be entered pursuant to section 24(1). The defence submits that there has not been any defence delay. The defence further submits that Covid-19 was not a contributor to the delay in this case nor was the case particularly complex.

[3] The Respondent disagrees that there is no defence delay. The Respondent concedes, however, that, even after deducting what they submit is defence delay, the delay still exceeds the presumptive ceiling by 16.5 days. The Respondent submits that Covid-19 and the complexity of the case are exceptional circumstances for which there should be deductions which bring the net delay below the presumptive ceiling.

[4] The Applicant was arrested on November 24, 2020 and the Information was sworn on November 25, 2020. Given that the Applicant elected to be tried in the Ontario Court of Justice, the “Jordan date” was May 24, 2022.

[5] The anticipated end of trial is October 27, 2022 which is 701 days or one (1) year, eleven (11) months and two (2) days. That is approximately five (5) months over the Jordan ceiling.

[6] The issues I must decide are: 1) what, if any, delay is attributable to the defence; 2) whether there should be any deductions due to Covid-19 as a discrete event and, if so, what period of time should be deducted and 3) whether case complexity should be considered an exceptional circumstance that justifies the delay. If, after engaging in this analysis, the delay is over eighteen (18) months then it is presumptively unreasonable and the charges must be stayed. The defence has not argued that, should I determine that the calculation brings the total delay below the presumptive ceiling, the delay is still unreasonable.

Section 11(b) – The Jordan Framework

[7] In 2016, the Supreme Court of Canada in the decision of R. v. Jordan provided a new regime under section 11(b) of the Charter in an attempt to simplify the law which had become complicated under the former regime.: R. v. Jordan, 2016 SCC 27

[8] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at eighteen (18) months for cases going to trial in the provincial court and at thirty (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 para. 46

[9] 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 2016 SCC 27 at para. 47

[10] 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.: R. v. Jordan 2016 SCC 27 at para. 69

[11] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (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. Absent these two factors, the s. 11( b ) application must fail. R. v. Jordan 2016 SCC 27 at para. 82

The Timeline

[12] The Applicant appeared in court on November 25, 2020. The Information was sworn at that time. The Crown sought his detention and a bail hearing was held on December 2, 2020. The Applicant was detained. Shortly after his bail hearing, the Applicant fired his lawyer and attempted to retain new counsel. The record reflects that the first waves of disclosure were provided during this time.

[13] The Applicant’s current counsel was retained for the purpose of a bail review in mid-January 2021 and the bail review was held on February 26, 2021. The Applicant was released from custody at that time. Counsel for the Applicant was not fully retained until mid-April 2021. That retainer was confirmed at a court appearance on April 26, 2021.

[14] This case involved the issuance of a tracking warrant as well as three (3) search warrants which were based upon one (1) Information to Obtain (ITO). The search warrants related to two (2) residences as well as a motor vehicle allegedly being driven by the Applicant. It was the position of the affiant that one (1) location was where the Applicant was residing and the other was being used as a “stash house”. The initial warrants were denied and had to be re-submitted before being issued. The ITO’s behind the warrants were not disclosed to the defence until February 22, 2021. At that same time, the officer-in-charge/affiant’s notes were disclosed.

[15] The matter moved forward and a judicial pre-trial was scheduled for July 14, 2021. In the meantime, the co-accused was arrested on June 4, 2021. It does not appear as though this was communicated to counsel for the Applicant until the date of the judicial pre-trial. When the Applicant’s matter was in court on June 28, 2021, there was no mention of the arrest of the co-accused. When the matter came up for judicial pre-trial, the intention to have a trial in the Ontario Court of Justice was communicated. A fulsome pre-trial was not conducted as it was felt that the co-accused would need to participate since they were being prosecuted together.

[16] The matter continued to be adjourned in order for the co-accused to retain counsel and be able to participate. On December 20, 2021, a warrant was issued for his arrest. During that time, the Crown was making some attempts to have counsel for the co-accused engage in a judicial pre-trial. The Crown contacted counsel for the co-accused following the pre-trial on July 14, 2021 and requested a pre-trial be set in the next week or two. Counsel for the co-accused responded that he did not yet have the disclosure.

[17] Disclosure was sent out to counsel for the co-accused on July 15, 2021. On July 23, 2021, the Crown followed up by email asking if the disclosure had been received and what counsel’s thoughts were on scheduling a pre-trial. It does not appear as though a response was received.

[18] On August 20, 2021, support staff for the federal crown reached out to counsel and the trial co-ordinator to obtain dates for a pre-trial. The Applicant’s counsel provided available dates. Counsel for the co-accused indicated that he needed to “speak to my client before I can set or attend a judicial pre-trial on his behalf”, indicating that he represented the co-accused.

[19] On October 27, 202, support staff sent a letter to both counsel recognizing that the matter was becoming dated and asking that they advise of dates they would be available to conduct a judicial pre-trial. Counsel for the Applicant responded with available dates on November 3, 2021. Counsel for the co-accused did not respond further.

[20] The co-accused had court appearances on June 4, 2021, August 23, 2021, October 4, 2021, November 22, 2021 and December 20, 2021 when a warrant was issued. On the October 4, 2021 appearance duty counsel contacted counsel’s office and was advised that the co-accused would be calling into court. The co-accused appeared without a lawyer and indicated that he had not called legal aid yet and did wish to contact them. The federal Crown provided their telephone number to him for disclosure purposes.

[21] On November 22, 2021, the co-accused again called into court without a lawyer. He indicated that he had a lawyer but was having “payment issues.”. The federal Crown indicated that they had contacted counsel who had indicated that they were not retained. The federal Crown expressed their concern about delay at that time. On the next appearance on December 20, 2021, a warrant issued when the co-accused did not attend court.

[22] Subsequent to that, a fulsome judicial pre-trial was held on behalf of the Applicant on February 23, 2022. The Crown immediately contacted trial co-ordination to obtain dates. It took weeks for everyone to co-ordinate but, ultimately, five (5) dates were set for pre-trial motions in April, May and June of 2022 and trial dates were scheduled ending on October 27, 2022.

Defence Delay

[23] Defence delay is two-fold with the first being delay waived by the defence. The parties agree that there were no defence waivers in this case. The second aspect of defence delay is delay caused solely by the conduct of the defence. This kind of delay occurs when the accused’s acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.: R. v. Jordan, 2016 SCC 27 at paragraphs 61 and 63

[24] The Crown argues that there are two (2) time periods that should be determined to be defence delay. The first is the time period during which the Applicant’s matter was being adjourned to seek a bail review. The next is the period of time it took for him to fully retain counsel. The Crown submits that these are delays which fall under the second category of defence delay. The Crown submits that they were delays caused directly by the defence.

[25] In Jordan, the court stated that defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Examples provided by the court in Jordan include allowing the defence preparation time as well as defence applications and requests that are not frivolous. The eighteen (18) month ceiling already accounts for procedural requirements and the court found that deducting those would run contrary to the accused’s right to make full answer and defence.: R. v. Jordan, 2016 SCC 27 at paragraph 65

[26] The Supreme Court expanded upon the comments made in Jordan regarding defence delay in the case of R. v. Cody. The Court stated that the only deductible defence delay under the second component is that which is 1) solely or directly caused by the accused person; and 2) flows from defence action that is illegitimate, in other words, not taken to respond to the charges.: R. v. Cody, 2017 SCC 31 at paragraph 30

[27] The court also found that inaction may amount to defence conduct that is not legitimate. An accused has a responsibility to avoid causing unreasonable delay.: R. v. Cody, 2017 SCC 31 at paragraph 33

Exceptional Circumstances – The Law

[28] As already stated exceptional circumstances must be reasonably unforeseen or reasonably unavoidable and not able to be reasonably remedied by the Crown. The Crown must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. Exceptional circumstances fall into two (2) categories: discrete events and particularly complex cases. R. v. Jordan, 2016 SCC 27 at paragraphs 69 to 71.

[29] Any periods of time attributable to exceptional circumstances must be subtracted from the total period of delay. Any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted.: R. v. Jordan, 2016 SCC 27 at paragraph 75

Covid-19 as an Exceptional Circumstance

[30] It now goes without saying that the Covid-19 pandemic and the impact it has caused to the administration of justice has been found to be a discrete event for the purpose of an 11(b) analysis. In many cases, judges have deducted periods of time caused by the pandemic from the total delay. Whether there is a deduction and how much time is deducted due to this discrete event is case and fact specific.

[31] In the now well-cited case of R. v. Simmons, Justice Nakatsuru stated that “the impact of the Covid-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public.”. The Court went on to say: “This, in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, Covid-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.”: R. v. Simmons, 2020 ONSC 7209 at paragraph 70

[32] Courts have taken judicial notice of the pandemic and its ongoing effects on the justice system.: R. v. Dumpfrey, 2021 ONSC 7758 at paragraph 39

Case Complexity as an Exceptional Circumstance

[33] Case complexity falls under the second category of exceptional circumstances. The Supreme Court in Jordan found that these types of cases are “cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.”. The court found that “voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time” are evidentiary issues that may result in a case being considered particularly complex. The issues that may make a case particularly complex can include “a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.”.: R. v. Jordan, 2016 SCC 27 at paragraphs 71 and 77

[34] Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Where a net delay, after other deductions, exceeds the Jordan ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable.: R. v. Cody, 2017 SCC 31 at paragraph 64

Co-Accused as an Exceptional Circumstance

[35] Attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. This does not mean that delay caused by a joint prosecution is not relevant to a section 11(b) assessment. Delays arising in the case of a co-accused can give rise to exceptional circumstances.: R. v. Gopie, 2017 ONCA 728 at paragraph 136

[36] Complexity may arise from proceedings that involve more than one accused as proceeding jointly against multiple co-accused, so long as it is in the interests of justice to do so, may impact the complexity of the case.: R. v Gopie, 2017 ONCA 728 at paragraph 169, referencing R. v. Jordan at paragraph 77

[37] The Crown is obliged to assess whether the decision to proceed jointly remains in the best interests of justice. An accused cannot be left hanging in the wind as a result of the actions of the co-accused. The jeopardy of an accused’s section 11(b) rights may be a reason for a determination that the interests of justice are no longer met by proceeding jointly against accused persons.: R. v. Gopie, 2017 ONCA 728 at paragraph 171

Application to the Case

[38] There is one (1) co-accused on this matter. That co-accused was not arrested until June 4, 2021, some six (6) and one (1) half months after the Applicant’s matter began running through the system.

[39] This case involved a number of pre-trial applications. This included facial and sub-facial challenges to the warrants, an application to cross-examine the affiant, section 7 and 10(b) Charter applications and this 11(b) application. Although not to be considered a simple case by any means, these types of applications are not unusual in a prosecution such as this one.

[40] The Applicant’s matter proceeded through the criminal justice system during the course of the Covid-19 pandemic which commenced in March of 2020 with the shutting down of the courts and continues to impact the justice system. The Applicant was arrested in November of 2020. This entire proceeding has occurred during the course of the pandemic.

Defence Delay – Application to the Case

[41] Cases of this nature and how they proceed are highly dependant upon the information contained in an ITO. The defence cannot fully obtain instructions nor can timelines appropriately be assessed until the ITO is reviewed and decisions are made about potential applications and Charter issues. In fact, this case involved applications due to facial and sub-facial challenges to the warrants as well as an application to cross-examine the affiant. I granted leave to cross-examine the affiant in relation to some of the areas sought. The Crown conceded some of that application. The sub-facial challenge to the warrant was partially successful.

[42] As a result, despite the fact that the Applicant was still seeking bail, the time period up to the release of the ITO will not be deducted as defence delay. It was not a time period in which the delay was caused solely by the defence as the Crown was still vetting the ITO for disclosure. Further, it was not a time period in which there was illegitimate defence action occurring which was not taken to respond to the charges.

[43] Even if I am wrong on this point, courts have found time periods taken to address bail to be a normal and expected part of criminal proceedings.: R. v. Tsega, 2017 ONSC 3090 at paragraph 52; R. v. Picard, 2017 ONCA 692 at paragraph 51

[44] The time period between the Applicant’s release on bail on February 26, 2021 and the appearance on April 26, 2021 was time when the sole focus was fully retaining counsel to continue to represent him on the matter. Although periods of time for retainer are built into the Jordan ceiling, those timelines must be reasonable. This matter had already been ongoing for several months. It was stalled only by the retainer process at this point. Although not an illegitimate action, at this point in the proceeding, the delay based solely on that fact was unreasonable and could no longer be considered a normal and expected part of the process. As a result, the time period of fifty-nine (59) days will be deducted as defence delay.

[45] When the delay attributable to the defence (59 days) is deducted from the total delay, there remains a net delay of 642 days which is the equivalent of approximately twenty-one (21) and one (1) half months which is over the presumptive ceiling. The Crown submits that they have demonstrated that the delay is nevertheless reasonable, submitting that exceptional circumstances including Covid-19 as a discrete event and the complexity of the case justify the delay.

Covid-19 as an Exceptional Circumstance – Application to the Case

[46] The Crown submits that Covid-19 is a discrete event for which there should be a deduction made in this case. I agree with the words of Justice Dunphy of the Superior Court of Justice in R. v. Titus (2022 ONSC 3484) that “the justice system cannot expand and contract at will and without limit to accommodate every contingency” in reference to the fact that there has never been an emergency in the history of the courts that has resulted in closures like we have seen with the Covid-19 pandemic. That being said, in order for a delay to qualify as a discrete event the delay must be attributable to the event. In other words, the event must have caused the delay to occur.

[47] In many cases, the pandemic has been a contributing factor to delays in getting to trial. In this case, the Applicant came before the court at a time when courts had opened up after the initial closures that took place in March of 2020. This entire prosecution occurred during the pandemic. Despite this case proceeding through the system during the pandemic, none of the delays were actually caused by the pandemic. In fact, motion and trial dates were obtained within what appears to be a quick turnaround time even in a pre-pandemic era. I note, however, that unlike other cases in which courts have concluded that Covid-19 was an exceptional circumstance justifying the delay, there is no evidence before me as to what the time-to-trial periods were pre-pandemic as compared to what they are presently. From the start of date-setting in February of 2022 to the end of trial in October of 2022 the system was able to accommodate multiple days of motions as well as four (4) days of trial. When the motions required further time periods, there was time made available to accommodate them.

[48] I cannot conclude that there should be any deduction in this case due to Covid-19 as a discrete event. Although the case proceeded through the criminal justice system during the pandemic, Covid-19 did not cause any of the delay in this case. Given how quickly motion and trial dates were obtained once the date setting process actually commenced, I cannot conclude that this is a situation in which there was “knock-off” delay as a result of a surge of cases within the system that required scheduling and re-scheduling.

[49] The Crown submits that there were lengthier remand periods imposed which were as a result of the pandemic. Lengthier remand periods are designed to give parties more time to accomplish what is necessary to move the matter along and to avoid unnecessary court appearances. It would be a stretch to find that the fact that lengthier remand periods were imposed during the pandemic equate with a finding that the pandemic was the cause for the delay. In any event, lengthier remand periods are not what impacted the Applicant’s matter working its way through the system.

Case Complexity as an Exceptional Circumstance – Application to the Case

[50] Turning to the complexity of the case as an exceptional circumstance that justifies the delay, I must look to the case’s complexity as a whole to determine whether the delay is justified. Although this case wasn’t one that could be considered simple, it was fairly straightforward. It did involve a number of pre-trial applications not unlike many other prosecutions for offences involving similar charges and the execution of search warrants. The fact that a case has multiple applications does not always make it particularly complex. A case may be characterized as particularly complex due to this factor, however, it does not always result in that determination. I repeat that the case’s complexity must be looked at as a whole.

[51] The number of pre-trial applications were not the cause of the delay in this matter. In looking at the case and its complexity as a whole, I cannot make the determination that this case was particularly complex such that the length of delay is justified.

[52] This is especially so when I look to the fact that when the dates were finally set the applications, responses and motion dates had a quick turnaround, without issue. In other words, the number of applications and issues involved are not the reason the case took longer than it should have. The delay happened before the date setting process occurred.

[53] There was a significant period of time spent in limbo for the Applicant from when the co-accused was arrested in June of 2021 until a warrant was issued for his arrest in December of 2021. At that time, the Applicant’s matter had made its way well through the system. Months were spent waiting for the co-accused to retain counsel and get on board to move the matter forward jointly while it was clear from the record in court and from communication between the Crown and potential counsel for that accused that nothing was happening to actually move the matter along. Counsel only appeared in court for the co-accused on the initial date of his arrest in order to assist with a consent release and on one (1) other occasion when an agent for counsel appeared. It is not even entirely clear from that appearance that there was any intention to retain that counsel. In subsequent court appearances and correspondence between the federal Crown’s office and counsel for the co-accused, it was clear that counsel had not been retained and was not prepared to move the matter forward. In fact, counsel did not respond to correspondence from the federal Crown’s office after October 27, 2021.

[54] Ultimately, the co-accused’s matter went to warrant in December of 2021. Those months were wasted. The Applicant was simply waiting for the co-accused to move things forward and indicated their preparedness to proceed. The Crown could have made a decision to sever the accused. There was also the option of moving the matter along for the Applicant and engaging in pre-trial and date setting discussions. This is not a case where delay is justified due to complexity of the case in co-accused proceedings. The delay could have been remedied by the Crown. The Crown was obliged to assess whether the decision to proceed jointly remained in the best interests of justice. The Crown was clearly alive to the jeopardy of the Applicant’s section 11(b) rights. That should have been a reason for a determination that the interests of justice were no longer met by proceeding jointly against these two (2) accused persons.

[55] It was the arrest of the co-accused and the delays brought about by waiting for him to be ready to proceed as well as the initial delay which involved the Applicant seeking a bail review and the Crown vetting some crucial disclosure, not anything substantial or complex, that caused this matter to exceed the presumptive ceiling. As a result, the complexity of the case cannot be used as a justification for any delay.

Conclusion

[56] The Crown conceded that, even if I were to accept their submission regarding defence delay, the matter was still 16.5 days over the Jordan ceiling. The Crown submitted that exceptional circumstances justified the delay over the presumptive ceiling.

[57] I have concluded that only fifty-nine (59) days are attributable to the defence. Further, I have concluded that there are no exceptional circumstances in this case that justify the delay.

[58] There were two (2) periods of time which caused this case to fall off the rails. The first were the initial months during which the Applicant was seeking a bail review and during which there was significant disclosure outstanding, that being the ITO’s and affiant’s notes. The next time period causing delay was once the co-accused had been arrested and the matter was being adjourned for the co-accused to retain counsel and be ready to proceed. During this period of time, the Applicant’s position that they were ready to proceed was clear. There had, however, not been a fulsome judicial pre-trial which was required before the dates could be set. That was due, however, to the late arrest of the co-accused and the original pre-trial not taking place in a fulsome manner because of that arrest and not due to any conduct on the part of the Applicant who was ready to proceed.

[59] The delays in this case occurred before the scheduling process for pre-trial motions and trial dates. Once the parties were in a position to request that these dates be set, the Jordan clock had already almost run out. In February of 2022, there was already approximately fifteen (15) months of delay.

[60] At that point, the Crown and the system responded. Dates were offered and the Crown pushed to obtain earlier dates. The trial co-ordinator was able to provide dates for the motions commencing in April of 2022 with the trial dates throughout October of 2022. At that point, it was too late.

[61] The total delay is 701 days. Delay attributable to the defence is calculated at 59 days. That leaves a net delay of 642 days which is the equivalent of approximately twenty-one (21) and one (1) half months and is presumptively unreasonable.

[62] The Crown has not satisfied its burden that there are exceptional circumstances which justify the delay. The Applicant’s section 11(b) rights have been breached. As a result, the charges will be stayed.

Released: October 3, 2022 Signed: Justice Shannon L. Pollock