DATE : September 9, 2022 Information No. 20-Y1341-01
ONTARIO COURT OF JUSTICE
- YOUTH JUSTICE COURT -
IN THE MATTER OF the Youth Criminal Justice Act S.C. 2001, c.1
HIS MAJESTY THE KING v. A.A.
REASONS FOR JUDGMENT
OF THE HONOURABLE MR. JUSTICE G. POCKELE on September 9, 2022, at LONDON, Ontario
PROTECTED FROM PUBLICATION BY s. 110 and 111 OF THE YOUTH CRIMINAL JUSTICE ACT AND S. 517 OF THE Criminal Code of Canada BY ORDER OF HER WORSHIP JUSTICE OF THE PEACE k. DIAZ, ONTARIO COURT OF JUSTICE, DATED JUNE 17, 2020.
APPEARANCES : A. Mason Counsel for the Crown G. Snow Counsel for the young person
REASONS FOR JUDGMENT
POCKELE J . (Orally)
This is my decision on an application by the accused, the young person A.A., for a stay of his criminal charges, based on a violation of s. 11(b) of the Charter of Rights and Freedoms, specifically, his right to trial within a reasonable time. The primary statement of this principle is in the Supreme Court of Canada decision of R. v. Jordan, in which an 18-month time period was imposed for criminal matters in provincial courts from intake through trial as being the definition of a reasonable time to trial. The mischief addressed in this decision was the culture of complacency within the courts regarding trial date setting.
Both Crown and defence filed extensive factums and charted all significant dates, passages of time and events. I will not review these at great length in my reasons but I will provide a working summary:
- The outstanding charges against A.A. are serious including allegations involving the use of a loaded firearm, uttering threats, assault with a weapon, kidnapping, forcible confinement and extortion.
- A.A. is a young person as defined by the Youth Criminal Justice Act.
- He was arrested and charged on June 17, 2020.
- His trial was initially scheduled for December 15, 16 and 17, 2021.
- On the eve of trial, the Crown discovered that over 700 pages of background data from the examination of electronic devices had not been disclosed.
- The Crown moved immediately to provide disclosure.
- The defence wanted the trial adjourned.
- Over several weeks the defence requested and held a further judicial pretrial, sought further instructions and eventually set a new trial date on February 22, 2022.
- The new trial is scheduled to commence on October 31st, 2022, and it is this trial date which is the focus of this application.
- The time between arrest and the anticipated end of the trial is 875 days or 28.8 months.
- Jordan guidelines would have the trial matters in the Ontario Court of Justice heard within 18 months;
- Had the trial commenced on February 15th, 2021, there would be no Jordan concerns.
Since the Jordan timeline has passed, any delay exceeding 18 months is presumptively unreasonable. Jordan provides a seven-step analytical framework in dealing with such applications for relief:
a) Calculating the total delay is the starting point. b) Next, defence delay is deducted in order to provide a calculation of net delay. c) If net delay exceeds 18 months, the onus shifts to the Crown to establish the presence of exceptional circumstances, otherwise the remedy of a stay will be imposed. d) Exceptional circumstances fall into two categories, discrete events and particularly complex cases. If there is found to be discrete events, then that is deducted from net delay, a calculation which results in remaining delay. e) If remaining delay still exceeds the presumptive ceiling, the court must then consider whether the case involves complexity such that the time the case has taken is justified and delay is reasonable. f) The next step, which is of no application here, occurs when the remaining delay falls below the presumptive ceiling, the defence can still seek relief but the onus is on defence to show the delay is unreasonable.
The terms used in each step have been subject to intense appellate interpretation. In the case of exceptional circumstances, the Crown must show that the delay is reasonably due to circumstances that lie outside the Crown’s control and that they are either reasonably unforeseen or reasonably unavoidable and the Crown cannot remedy the delays emanating from such circumstances. The onus is on the Crown to show that it took reasonable steps to avoid and address the problem where possible.
This is an issue with this application because of the journey through the courts, the setting of the first and second trials, all events occurring during the ongoing worldwide COVID pandemic. The pandemic is a discrete event. The question for the court is whether it is possible for the Crown to avoid or address a discrete event related to the COVID pandemic? However, the balance of the application goes to calculating delay, net delay, defence delay.
For the purpose of my analysis, I am concerned about four events or four time periods: the first being first appearance to setting the first trial date; the second is the cancellation of the first trial; the third is the time from the cancellation of the first trial to setting a date for the second trial; and the fourth event is the second trial scheduled to commence October 31st of this year.
Dealing with the time period first appearance to date setting, this time period covers 20 court appearances from June 17, 2020, to July 5, 2021. I must review whether during any of this time the actions or conduct of the defence have caused delay.
I note that by the fifth court appearance on August 24th, 2020, the charges had been moved from a Justice of the Peace presiding in intake court to a case management court overseen by an Ontario Court Justice, specifically tasked to case management of youth matters. This is only done when a matter has languished too long in the intake courts. It is hoped that a court presided over by an experienced criminal court judge would better understand the nuance and the process of conducting a criminal defence, and could monitor cases that were too long in the system. Case management courts have become a common feature in response to Jordan.
The framework for the expectations of the court with respect to individuals in the court system, has its genesis in the criminal practice recommendations outlined in the Martin report in 1992 and the Criminal Justice Review Committee Report in 1999, both driven as a response to the Supreme Court decision in R. v. Askov, the first Supreme Court response to delay in courts.
In these reports, the Crown agreed to a regime of full, free and complete disclosure, and in return the Crown and defence counsel are charged with holding early resolution meetings where the Crown would present a sentencing offer on plea and after trial. Then counsel would work towards eliminating the attendance of unnecessary witnesses and narrowing issues, with the goal of shortening trials and the time to trial. It was a commitment by Crown and defence to efficiently move criminal cases through the system, made possible by an expanded regime for disclosure.
While it is easy to determine whether full disclosure has or has not been provided, there is no way to determine whether counsel have sincerely complied with the balance of the compact, Crown and defence. The CJRC stated that the expectation of defence counsel was to make “every reasonable effort consistent with the legitimate interests of the client to expedite litigation”.
These reports also spoke to regularizing and expanding the process of having judicial pretrials. Most of these recommendations have now been adopted by the Crown, the judges, the courts and the defence bar, and are part of everyday practice. A judicial pretrial is often mandated when a trial requires more than a half day. The hope is that judicial input regarding the likelihood of success might resolve matters; sometimes procedural orders are made as in pretrial applications, sometimes it is merely a sentence preview where counsel are seeking judicial input on sentencing in sensitive situations.
Multiple judicial pretrials should be a relative rarity. The judicial pretrial judge cannot preside over the trial, and this shrinks the pool of available trial judges. There are few valid reasons to have a repeat judicial pretrial.
Against this background of the expectations within the criminal justice system, I will review the first 20 court appearances in this matter:
▪ The first appearance was on June 17th, 2020. A.A. appeared with another youth co-accused, “H.”. ▪ At the second appearance, on June 18th, 2020, A.A. was seeking disclosure and setting up a bail plan. ▪ At the third appearance, on June 23rd, 2020, the matter was adjourned to a date to set a date for bail hearing. ▪ At the fourth appearance, on June 26th, 2020, counsel for A.A. asked for the presumptive 10-week adjournment and the matter was adjourned to August 24th, 2020. The presumptive adjournment was a pre-pandemic procedure in some court locations whereby counsel for the defence undertook and were charged with completing all preliminary steps through date setting, without being constantly monitored by the courts to make sure that the file was not languishing.
Post-pandemic, the presumptive adjournment became common practice in most courts. Counsel are expected to request, receive, review disclosure, have a resolution meeting, sometimes called a counsel pretrial, receive a sentence offer on plea and trial, receive instructions from client and, if necessary, arrange a judicial pretrial. The burden is on defence to take these steps without prodding or intervention from the court.
▪ At the fifth appearance, on August 24th, 2020, the end of the presumptive adjournment, it was clear that the defence had failed to complete the processes expected of them when they requested the presumptive adjournment. The defence advised the court that it had received full disclosure. From that comment, I infer that this was basic disclosure that complied with the understanding of events provided by the accused.
I should indicate that the Criminal Justice Review Committee reforms demanded that the Crown provide basic disclosure at a very early date and acknowledged that there would be continuing disclosure throughout the course of the matter in the courts.
Defence counsel had not met with the Crown for a resolution meeting. Defence indicated they needed some coordination with the co-accused. The former was a failure by the defence regarding the presumptive adjournment in that the resolution meeting had not been held. Noteworthy is that defence offered no explanation. Defence counsel mused about a judicial pretrial.
This matter had now been two months before the court and the defence was undecided as to whether this step was necessary. It is noteworthy that the presiding judicial officer, now a justice of the Ontario Court, tasked as primarily presiding over Youth Court matters, seemed concerned about unnecessary unproductive adjournments and urged the defence to take a little more time if necessary, but to get the next step completed.
Needless to say, in pandemic times, with huge lists clogging the courts, the effort involved in generating this paperwork, pulling the informations, arranging for attendance and having a judge review all of these matters in the intake court should not be wasted with unproductive adjournments.
▪ At the sixth appearance, now September 28th, 2020, appearing before the justice the defence advised that disclosure was now mostly complete and wanted an adjournment to October 19th, 2020. The justice, now engaging in vigorous case management, encouraged defence counsel to take sufficient time to get it done without unnecessary, unproductive intermediate adjournments.
The defence offered to prepare trial readiness certificates, a precursor to setting a trial date. That seemed to satisfy the justice. The defence seized the offer for a little more time and it was adjourned to November 2nd, 2020. As it turns out, this offer of extra time was squandered.
▪ At the seventh adjournment, on November 2nd, 2020, counsel for the co-accused spoke to the matter. He wanted and received a two-week adjournment to review recently received disclosure and to have meaningful resolution discussions. He did not indicate whether he had already participated in resolution discussions that were now not meaningful. The Crown interjected that all disclosure on hand had been available for some time and no fault for this delay could be attributed to the Crown.
A.A.’s counsel added that he wanted to schedule and hold a judicial pretrial and an adjournment to November 30th would promote that. Again, it is now four months since the request for the presumptive adjournment. No judicial pretrial, but an indication that A.A. is on trial track.
▪ At the eighth adjournment, on November 30th, 2020, it became abundantly clear that counsel was unable, unwilling or had no intention of honouring their undertakings regarding the purposes for an adjournment. Defence repeated a request to schedule and hold a resolution meeting with the Crown, now five months after the presumptive adjournment, when that should have been done within the first ten weeks.
The justice presiding over the court said emphatically, “I do want this matter to move forward”. She suggested an extra week to December 21st in the hope that date setting would happen.
▪ The ninth appearance was December 21st, 2020. A resolution meeting had finally been held. Defence had discussed resolution and was waiting for a firm proposal to review with A.A. The track to resolution of a matter is given far more latitude by case management judges as a trial track would involve a far greater dedication of resources.
The case management judge pointedly described this matter as being “long in the tooth”. She wanted counsel to return sooner rather than later. There were no more offers of extra time. Defence counsel was being put on a short leash.
▪ At the 10th appearance, on January 11th, 2021, the defence indicated that the Crown was drafting a resolution proposal. The assigned Crown was not in the courtroom. No comment was made by the sitting Crown. Defence wanted three more weeks for the Crown to draft a resolution proposal. That was the defence request, not the Crown’s. No explanation was given as to any intermediate attempts to get this proposal over the phone.
This would have been five weeks requested by the defence to receive something in writing regarding a meeting that had already been held. I can only view this request at this juncture as a demonstration of diffidence under the excuse of being on a resolution track.
▪ It is now February 1st, 2021, the 11th court appearance. The case management judge, now intimately familiar with this file, opens with the comment, “I see today as the date to set a trial”. The defence saw it otherwise, dangling the prospect of resolution and spoke of “ongoing resolution discussions”, but expressed concerns about additional technical disclosure and CFS reports. The Crown checked and said there were no outstanding disclosure requests and that both accused were in a resolution position.
▪ Well, it is now three weeks later, February 22nd, the 12th court appearance, and it was noted by the case management judge as being up to “set a date” as it had been several times since January 11th. Defence for A.A. raised the issue that 400 pages of disclosure had come in. They wanted an adjournment to review that. They made no comment about it being meaningful disclosure, whether it would impair the resolution track. It appeared to be the aforementioned cell phone data in the CFS reports, but I am not clear on that.
The case management judge was emphatic that if the trial was to be set, then March 22nd, 2021 was the deadline.
▪ On March 22nd, 2021, to no great surprise, a trial date was not set. Counsel for the co-accused was finally getting around to setting a judicial pretrial; counsel for A.A. agreed that his matter should go to that date.
It is noteworthy that despite the continued comments by the case management judge about setting a trial date as soon as possible, counsel for A.A. never expressed any concern about when the eventual trial date would be set. The court did not ask nor did the defence offer any waiver under s. 11(b) of the Charter. This seems to have been missed by Crown, defence and the judicial officer throughout the course of this matter in the courts.
▪ It is now April 12th, 2021, the 14th court appearance, 10 months since the matter first came before the court. The defence wanted an adjournment to April 26th, indicating they now wanted a judicial pretrial. However, they offered to the court that “There is a prospect of resolution and a pretrial could be helpful in that respect”.
Any judge sitting in a case management court, concerned about Jordan guidelines, is not going to press the defence to set up a trial and dedicate resources if there is a reasonable prospect of resolution. Such comments and undertakings to the court leave a judicial officer to lift their foot from the gas pedal in the hope for a resolution. And it must be remembered it is now 10 months into the system.
▪ At the next court appearance, April 26th, 2021, the 15th occasion before the court, the defence made another request for an adjournment. Despite the repeated urging of the court to set a trial date, the defence made a comment that was internally inconsistent. They wanted an adjournment to May 31st to receive instructions - this is over a month – and set a trial date.
By this stage of the proceedings, it is difficult to accept any comment, any promise made by the defence at face value. If the intention is to set a trial date, then they must have had instructions. Obviously, the defence is no longer talking about resolution. They obviously have come to the court, as they have since January 11th, and not taken the necessary steps to set a date. They had not indicated that the latest disclosure caused any change in their position.
The request for a 35-day adjournment is not consistent with advancing the legitimate interests of the client and expediting litigation. It is more indicative of a position that delaying the trial is being viewed as being in the client’s best interests.
▪ May 31st, 2021 arrived with the promise of setting a date, 11 months and 16 court appearances into this file. In another extremely inconsistent representation to the court, counsel for A.A. indicated that his client was contemplating resolution, wanted to discuss the matter with his family, needed some time to do so and would come back June 21st, to resolve or set a date.
From my perspective, it appears this matter had spiraled out of control and only a resolution could save it from offending Jordan principles. The adjournment was granted.
Why it would take three weeks for A.A. to accomplish his goal is beyond me. The case management judge pointedly asked whether this was a possible resolution, pointed out that a year had passed without setting a date, and stated that, “Absolutely this matter is to set a trial or resolve on the next date”.
▪ June 21st, 2021, the 17th court appearance, the defence demonstrated that the case management judge’s direction regarding “absolutely” resolving or setting a trial date, was a direction to be ignored. Defence counsel advised they were “still working on confirming instructions” and was trying to determine whether A.A. wished to resolve or proceed to trial.
The case management judge determined that this matter had been in the system for a year, was concerned that defence counsel was still trying to obtain instructions. The judge took the step of directing comments at A.A., urging him to keep in touch with his lawyer to provide instructions.
▪ June 28th, 2021, counsel for A.A. advised the court the matter was proceeding to trial. Not surprisingly, the decision had not been preceded by participating in trial date setting court. No trial dates could be offered to the court. The matter was again adjourned.
▪ June 29th, 2021, the 20th court appearance was to set a date with the trial coordinator. The trial was scheduled for December 15th, 16th and 17th, 2021, some five and a half months down the road. This was confirmed in front of the case management judge on July 5th, 2021.
This was a tortuous journey through the intake court and no fault could be attributed to the Crown or the court system for this, even though the court system was operating in pandemic times.
From August 24th, 2020, the fifth court appearance, the list was managed by a justice of the Ontario Court of Justice. The justice continually reminded the parties of the need for diligent and efficient management in order to obtain a trial date, not imperiled by Jordan considerations.
The defence requests for adjournment were rife with repetition without explanation why the adjournment target events were not achieved. It appears the 10-week presumptive adjournment was squandered and little, if anything, was accomplished. There were repeated requests for judicial pretrials which were never held. If there was a resolution meeting, it did not take place within the presumptive adjournment. There was apparently sufficient disclosure at an early date to identify triable issues. There was no comment about latter disclosure, mostly technical in nature, preventing a date being set far earlier. It seems that when pressed by the court, defence would talk about resolution and the court would rely upon the professionalism of counsel to assess resolution as a likely outcome, not requiring court interference in pushing the matter to trial.
Ultimately, weeks and months were wasted while the defence sought instructions. If there were problems receiving instructions - a failure of electronic devices, difficulties in travel, illness - they were never put on record. The case management judge made direct comment to A.A., encouraging him to keep in contact with counsel. I am left with the impression that the defence was totally lacking in concern and diligence in moving this matter to trial within a reasonable time.
When a judicial officer asks counsel to provide a reason for an adjournment, that reason is an undertaking to the court, it is a representation to a judicial officer, backed by the credibility expected of an officer of the court. When these 20 adjournments are reviewed, it is clear that when representations in support of an adjournment were made by counsel, they were rarely achieved.
Now, the defence might state that some of the adjournments related to ongoing problems with disclosure. In the Stinchcombe disclosure regime, which is also referred to in the CJRC report in 1999, the prosecution is charged with providing early basic disclosure sufficient for the defence to make informed decisions regarding plea, trial and bail.
From the earliest defence comments that they had full disclosure, I conclude the Crown discharged its first duty. It continued to provide ongoing disclosure as various investigative paths were being explored and produced more evidence. That is the Crown’s second duty. Moreover, it is well established that notwithstanding incomplete disclosure, parties are expected to continue to move matters along expeditiously unless the disclosure is truly material to crucial steps in the process, such as election and plea.
It is incumbent upon the applicant to establish that there is a causal connection between the missing disclosure and any actual delay. In the Ontario Court of Appeal decision of Kovacs-Tatar, it spoke to situations where the defence is not given a free hand to cause delay merely because of outstanding disclosure. In fact, outstanding disclosure is a valid issue to be raised at a judicial pretrial. This argument does not benefit A.A. as his trial tactic was to delay the scheduling of the JPT until very late in this process.
So, a significant portion of these 20 adjournments is attributable to, and will be calculated as part of defence delay. I want to be clear, I view the inaction by the defence as being illegitimate steps that are to be excluded from total delay. Again, I am unable to determine whether this delay was due to inefficiency, indifference or intentional act, but the delay was caused by defence and will be calculated in the determination of the net delay.
I see the starting point to calculate defence delay would be at the termination of the 10-week presumptive adjournment. The appearance on August 24th, 2020 before a case management judge should have been an alarm bell. Jordan was intended to address the culture of complacency in the courts. Jordan was not intended to let the complacency of the accused create a delay that would result in the charges against him being stayed. I hold the defence responsible for delay from August 24th, 2020 to date setting, July 5, 2021, approximately ten and a half months.
This is not a hard number capable of being determined with slide rule precision but is a number that closely approximates where defence complacency stalled the date setting process. Certainly we know that when an accused is in custody seeking a trial it would be a rare event to take more than eight weeks to set a trial date. The failure to accomplish anything meaningful in the adjournments from August 24th onward, which is the primary evidence in this application, leaves me with no evidence regarding the amount of time it should take to diligently arrive at the trial setting date.
But the glaring point that has to be made is that when it takes a year to set a trial date, if anything goes wrong - the illness of a party, the illness of counsel, a family emergency, bad weather, a power failure, another pandemic - the next trial will inevitably be in Jordan territory. One year to set a trial date is far too long.
Dealing with the second event, which is the adjournment of the first trial on the eve of the first trial scheduled for December 15th, 2021, during immediate pretrial preparation, the Crown realized that it had failed to disclose the forensic analysis of the accused’s cell phone. It had apparently earlier disclosed a report on forensic analysis prior to trial. At a judicial pretrial the defence had agreed that the report would be admitted. It is my impression, and I am not clear from what I heard, that the raw data supporting the report had not been disclosed. But in any event, it appears that the parties were prepared to rely on the conclusions of the report prepared by a special constable tasked with cell phone analysis.
In any event, the Crown made a mistake. It was not through deceit. The Crown discharged its duty to immediately disclose and the defence asked for an adjournment because the disclosure was lengthy. The Crown, while not consenting, did not really oppose.
The adjournment application was heard by Justice Poland on December 14th. I want to be clear, the Crown acknowledged that this mistake on their part could result in 11(b) consequences. It is not an issue of complacency here, the Crown made a mistake. However, the Crown wanted to preserve some of the three days of trial time and pointed out that the cell phone report had already been admitted. The Crown wanted to call some of the witnesses in the hope the material could be reviewed. Justice Poland yielded to defence concerns about having time to review the report, felt they were paramount, and granted the trial adjournment.
I want to deal with the third time period or event, and that is setting the second trial date. Counsel for A.A., without having reviewed the material, asked for another judicial pretrial. The reason for requesting another judicial pretrial was unstated and not apparent. The matter was adjourned a further week at defence request. The Crown felt that another judicial pretrial was not necessary.
On December 21, 2021, one week later, back on the case management list, counsel for A.A. stated this matter “required” a judicial pretrial and that this should take place before proceeding to address some of the admissions. The Crown opposed this as not being necessary. Crown and defence can always meet to discuss admissions; that is what a resolution meeting is for. What could a trial judge do at a pretrial that had not already been addressed at the first judicial pretrial?
I earlier outlined the purposes of a judicial pretrial as defined by the Criminal Justice Review Committee. It appears that at the pretrial in May of 2021 that trial focus issues would have been defined. They would have determined which witnesses were necessary, which were not, whether witness accommodation was needed, whether an interpreter was needed. I saw notes that two days would be dedicated to testimony from the CCTV courtroom. The introduction of this further disclosure should not have upset that trial track. If more time was needed, just ask for more time. You do not need a trip before a judge which involves rescheduling the judicial pretrial in front of the judge who heard the first pretrial and fitting that into that judge’s schedule. It becomes a factor in delay.
Counsel for A.A. now linked date setting to the completion of the judicial pretrial. The matter was adjourned to January 11th, 2022, at the request of the defence. Almost a month had passed since the trial had been scheduled to begin. I have difficulty in seeing why this was necessary. Resolution was off the table. I am not making any assumption that this disclosure would or would not be evidence at trial. If it comes to being trial evidence, Crown and defence could work it out.
On January 11th, 2022, the representative for A.A. appeared in court and announced that a judicial pretrial had been set for February 10th, a month away, and that the matter should return February 15th.
On February 15th, 2022, counsel for defence attended and asked for another one-week adjournment for the purpose of date setting. No explanation was offered as to why that had not been done already. This is of concern because on February 16th the parties were in date setting court, something which can quickly happen when the parties are so inclined. The transcript underscores in the date setting court the usual give and take in arranging a trial, having regard to availability of Crown, defence and witnesses.
Finally, the trial date was set commencing October 31st, five and a half months from the first set date, ten and a half months from the date set for the original trial. Once again, the date setting for the second trial was delayed due to moving slowly or taking the unnecessary step of a judicial pretrial, over Crown objection, and yet defence resurrects the prospect of resolution as part of this request.
The two-month period from December 21st to February 22nd is part of continuing pattern of defence delay.
So, I have fixed upon two periods of defence delay. One of the basic principles derived from Jordan is that an accused person is not entitled to remain passive in the face of delay. I have examined the conduct of the defence. There has been no delay waiver which is a factor, but I have looked into the issue of periods of defence caused delay.
It is stated in Jordan that when considering defence delay, “It will of course be open to the trial judge to find that other defence actions or conduct have caused delay”. Continuing further, “Such determinations are highly discretionary and require appellate courts to show a high level of deference thereto”, that is R. v. Cody.
Even where an application presents with some merit, defence action may be not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference towards delay. In this way, defence action or omission may also render defence action illegitimate and exclude it from total delay. It is not necessary for the court to find professional or ethical misconduct. However, the assessment of legitimacy takes its meaning from the cultural change demanded in Jordan, “which requires that all justice system participants advance an accused’s right to trial within a reasonable time.” That is all justice system participants, including defence.
Overall, without hesitancy, I find the conduct of the defence for A.A. to have demonstrated persistent inefficiency or marked indifference towards delay. There were virtually no marked efforts on A.A.’s part to advance his right to trial within reasonable time. I review again the persistent prodding by the case management judge. Whenever it suited their purpose, defence floated the prospect of resolution and the judicial officer would ease the pressure.
There is a problem in calculating the total number of defence delay because I lack direct evidence. I cannot look into the mind of the party requesting adjournment to determine the real reason. It is difficult to determine whether all requests were made with good intentions but inefficiency or office culture blocked those good intentions. It is possible that many legal representatives who spoke to this matter on behalf of A.A.’s counsel, were inadequately instructed and made promises to the court that should not have been made. At the same time, it is clear the presumptive adjournment was not properly utilized.
It is clear that the purpose of a resolution meeting, Crown pretrial, the function of a judge at a judicial pretrial do not seem to be understood. To me, once the judicial pretrial was held, a trial should have been set within weeks but this was not accomplished. Once the trial was adjourned, the defence again wasted almost two months seeking another adjournment for purposes of a judicial pretrial.
When I calculate the plus ten-month delay period which is involved in the twenty adjournments setting the first trial date, I calculate that to be ten and a half months. I attribute a further two months to the time after the adjournment of the first trial date, and I attribute twelve and a half months of defence delay as I factor the net delay.
However, I have to address the issue of exceptional circumstances. When the Supreme Court delivered its decision in Jordan, it spoke of the consideration of exceptional circumstances. In paragraphs 69 and 71 they spoke of the culture in criminal courts circa 2016. No judge, no defence counsel, no Crown, and certainly not the Supreme Court could anticipate the impact of the world’s first pandemic since 1918 upon the administration of criminal justice.
The only recent and far less serious example of such a discrete event was the loss of the Goderich courthouse to a tornado in 2011, a catastrophic event which wiped out court proceedings for over six months and necessitated intake courts being run out of a trailer in a parking lot. The Crown was not charged with solving trial delay problems in Goderich, nor is the Crown properly charged with solving problems related to the pandemic.
Jordan states the Crown must show that a delay is reasonable and if delay in exceptional circumstances lie outside the Crown’s control. These are. They were not reasonably foreseen and they were not reasonably avoidable. To rely on exceptional circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problems where possible. In the clearest language, I find there is no way the Crown could possibly address these problems.
This discrete event of the pandemic, is an event not tied to the culture of complacency. The Crown does not have the sole burden of explaining delay. There is no playbook for how the courts are to deal with delay, and events have shown that the Crown is not the primary player in solving pandemic related delay.
In March of 2020, as a result of the explosion in the number of COVID infections affecting Canadians, live proceedings in the Ontario courts were shut down. The world had limited information on how the virus was transmitted. There were different opinions on whether masking, isolation, hand sanitizers would slow transmission. As a precaution, most businesses, institutions and organizations closed. Traffic disappeared from the streets.
The chiefs of all Ontario Courts met with government in emergency mode to begin discussions, to make decisions, to implement changes to have the courts function on an emergency basis. Obviously, getting the courts running was a problem for more parties than the Crown. It was a problem that involved every stakeholder in the administration of justice.
Recent decisions such as the Superior Court in R. v. Simmons, 2020 ONSC 7209, have recognized that the COVID pandemic is a discrete exceptional circumstance, and I am bound by that decision.
Two and a half years into this pandemic there have been several significant moments. After months of trying to review bandwidth for remote proceedings, testing remote conferencing applications, most courts in the Ontario Court of Justice where justices of the peace and justices preside, were able to operate in a limited remote basis by the end of 2020.
Conducting trials was more problematic as it required buy-in from accused and defence who could insist upon the right to an in-person trial or perhaps lacked the technical ability to participate, such as in fly-in court locations in Northern Ontario and rural settings that did not have adequate WiFi.
When limited live trials began there were courthouses that could not provide sufficient clean air exchange to negate aerosol transmission of COVID-19, this being a science-based factor only recognized in late 2021. Court staff nor judges were attending court. Finally, in April of 2022 health and safety concerns were sufficiently addressed to enable the re-opening of live courts; however, no one is guaranteeing that the courts are safe and many participants continue to mask and courts still hold remote proceedings.
What we do know is in the Ontario Court of Justice there is now a backlog of 60,000 cases that are unresolved and will require trials. Certainly, any matters that could resolve should be resolved by now. There are limits on what can be done. Government cannot appoint instant judges who would be underutilized once the backlog is resolved. Even if there were more judges, the government would have to find more courthouses. Courts cannot be run without trained court staff, and during the pandemic many experienced members of the court left their employment, leaving few experienced members to train new staff.
In the Ontario Court of Justice, the Chief Judge undertook an initiative with the government to change regulations so that retired per diem judges could increase sitting days by up to 25 percent and these judges are being actively deployed across the province where the need is greatest, particularly for remote trials. It is not to be forgotten that the 60,000 backlog cases are added to the caseload of pre-existing Crowns and pre-existing defence counsel, and their efficiency suffered.
I have heard the argument that the Crown must call evidence of exceptional circumstances in an 11(b) application and that these observations of mine, which are part of the current court environment, cannot be accepted as fact. I disagree. This information is part of the public reports, practice directives, bulletins, meetings, memos and the experience of presiding in criminal courts in 2022.
So the pandemic is an exceptional circumstance. It has created a trial backlog. It is difficult to put a number on this trial backlog but I will address that in a few moments. There is no certainty that another wave of COVID will not create further setbacks in the future. However, in saying this, the 18-month limit set out by Jordan in the Ontario Court of Justice needs to be revisited with respect to discrete circumstances such as the pandemic.
I am now going to proceed to my calculation of defence delay. I calculate the total delay in this matter, as agreed upon by the parties, as 28.8 months. I calculate the defence delay which constitutes the delay in setting the first trial date and the delay in setting the second, as totaling 12.5 months. That means the net delay is 16.3 months.
However, if my calculation of defence delay is given a margin of error of 20 percent – and I pick that number arbitrarily, that would reduce the contribution of defence delay to 10.1 months, which would leave this matter in a net delay situation of 18.7. I am not saying that the net delay is 18.7 but I am saying that there has to be room for some margin of error. But if it is as much as 18.7, the discrete event of the pandemic, which was not caused by the Crown, not possibly addressed by the Crown, is still a factor that has to be integrated, and in looking at the relatively brief time that the net delay would exceed the Jordan guidelines under one of the two scenarios, it would come under the heading as being permissible delay, pursuant to the revisions in Jordan.
This application is dismissed. The applicant has failed to satisfy the court on the persuasive and evidentiary test of a balance of probabilities that there has been or will be a breach of the accused s. 11(b) Charter rights with this trial commencing on October 31st of this year.
Trial date will begin October 31.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, DIANA RORKE, certify that this document is a true and accurate transcription of the recording of R. v. A.A. held in the Ontario Court of Justice, Youth Justice Court 80 Dundas Street, London, Ontario taken from recording no. 2311_CrtRm2_20220909_090550_Y_5_POCKELG.dcr which has been certified in Form 1 by Natasha Budwah.
Date Authorized Court Transcriptionist
ACT ID: 1633428714 rorke.diana@gmail.com
Legend : [ sic ] - Indicates preceding word has been reproduced verbatim and is not a transcription error. ph) - Indicates preceding word has been spelled phonetically.
Transcript Ordered: September 16, 2022 Transcript Completed: October , 2022 Transcript Delivered: October , 2022