Court File and Parties

ONTARIO COURT OF JUSTICE DATE: November 1, 2022

BETWEEN:

HIS MAJESTY THE KING

— AND —

MOHAMED MOHAMED

Before: Justice J. Sickinger

Heard on: September 13th, 2022 Oral Reasons for Judgment given on: October 31st, 2022 Written Reasons released on: November 1st, 2022

Counsel: A. Khan...................................................................................................... counsel for the Crown H. Bassi.......................................................................... counsel for the applicant M. Mohamed

SICKINGER, J.:

[1] Mr. Mohamed brings an application for a stay of proceedings pursuant to ss.11(b) and 24(1) of the Charter. The information was sworn on October 7th, 2020 and the trial is scheduled to finish on December 22nd, 2022.

Background

[2] Mr. Mohamed is charged with offenses related to stolen motor vehicles being shipped overseas. He was arrested after the execution of a search warrant, the results of which connected him to the offences. I was advised by Counsel that the majority of the evidence in this matter was collected as a result of this search warrant, and that the warrant is central to the defence. I was also advised that the Information to Obtain (“ITO”) the warrant was not sealed and did not require an unsealing order or vetting to be disclosed to Counsel. The Crown took no issue with these representations.

[3] Mr. Mohamed was arrested on September 10th, 2020, and the information was sworn on October 7th, 2020. On December 24th, 2020 Mr. Mohamed had his first appearance, a student from counsel's office appeared and spoke to the matter. Disclosure had not yet been provided.

[4] Following that appearance a number of court appearances took place over the next few months, initial disclosure was provided, and Counsel and the Crown had ongoing discussions. Mr. Mohamed faced related charges in Toronto, there was some uncertainty as to whether or not the charges before this court would be prosecuted in this jurisdiction or in Toronto with the related charges.

[5] On July 8th, 2021 counsel did not appear in court and that matter was adjourned to August 19th, 2021. The defence concedes that this period of delay is attributable to the defence and should be deducted as defence delay. On August 19th, 2021 an agent for counsel appeared and indicated that there was a Judicial Pretrial scheduled on the related charges in Toronto two weeks hence and the matter was adjourned to September 16th, 2021, with an 11(b) waiver. On that date the matter was adjourned for Counsel to conduct a further Crown Pretrial. The matter next appeared in court on October 14th, 2021.

[6] On October 14th, 2021 an agent for counsel appeared in court and indicated that counsel had missed the scheduled pretrial. The matter was adjourned to November 18th, 2021, again with an 11(b) waiver, to allow the pretrial to be rescheduled.

[7] On November 18th, 2021 counsel indicated that he was waiting to hear back from the Crown with regard to the Crown’s trial time estimate following their pretrial.

[8] On December 16th, 2021 counsel attended court and indicated that a Judicial Pretrial had been held the previous week. Counsel advised that the Crown had not yet disclosed the ITO, which was the basis for the search warrant underlying these charges. Counsel indicated that a preliminary trial time estimate had been discussed, but that he could not determine whether or not a s. 8 application would be brought without reviewing the ITO. The Crown in court indicated that there was no update from the assigned Crown regarding the disclosure of the ITO.

[9] On January 20th, 2022 Counsel attended court and advised that the ITO had still not been disclosed. The Crown in court indicated that there was no request for the ITO noted in Scope. It is not clear from the record if there were no notes of counsel's request for the ITO or no note of the Crown requesting the ITO from the police.

[10] On February 17th, 2022 a student for counsel attended court and spoke to the matter. The Crown identified that the matter was 17 months old at that point. The student advised that counsel had not yet received the ITO, the Crown then indicated that Scope showed that the ITO had not been received by the Crown’s office either, although it had been requested. It is important to note that this matter was one month away from the Jordan deadline at this point, yet crucial disclosure remained outstanding. The ITO existed prior to Mr. Mohamed’s arrest, and should have been disclosed to Counsel with the initial disclosure.

[11] On March 17th, 2022 counsel attended court and spoke to the matter, he advised that the ITO had still not been disclosed. Counsel indicated that he had corresponded with the assigned Crown, who had not yet received a response to her request for the ITO from police.

[12] On April 21st, 2022 counsel attended court and spoke to the matter, he indicated that the ITO was received on March 23rd, 2022. As a result of a review of the ITO counsel indicated that it was necessary to request substantial further disclosure, the need for which only became apparent after reviewing the ITO. Counsel advised that he and the Crown had been in contact with the trial coordinator to schedule a follow up Judicial Pretrial in order to finalize the trial time estimate, now that the ITO had been received.

[13] On May 5th, 2022 counsel attended court and spoke to the matter, he indicated that a further Judicial Pretrial had been scheduled for May 11th, 2022. On May 11th, 2022 a further Judicial Pretrial was held, a trial time estimate was completed and the matter was adjourned to permit counsel to file the trial scheduling form.

[14] On June 1st, 2022 the matter appeared in the trial scheduling court. The Crown asked that the matter be given priority. The first dates offered were December 19, 20, 21, 22, 2022, approximately 5.5 months from the date the trial dates were set. These dates include time scheduled for a Garofoli application.

[15] The Defence conceded the following periods of delay were indeed defence delay: July 8th, 2021 to September 16th, 2021 and October 14th, 2021 to November 18th, 2021, this amounts to 105 days, or approximately 3.5 months.

[16] The Defence argued that the ITO was clearly central to the case and integral disclosure. Counsel argued that by failing to disclose the ITO for approximately 17.5 months the Crown created significant delay.

[17] The Defence argued that it was the Crown’s clear obligation to disclose this type of material. In Osei the court held that it was not the obligation of the defence to make a request in order to receive an ITO (see R v. Osei, 2007 O.J. 768 at para 23), this case is clearly in line with the disclosure obligations set out by the SC court in Stinchcombe (see R v. Stinchcombe, [1991] 3 SCR 326).

[18] The Defence further argues that there is no evidence before the court that any delay is due to the COVID-19 pandemic, or any associated backlog created by the court shutdowns early on in the pandemic.

[19] The Crown argued that the failure to disclose the ITO should not have delayed setting trial dates and the disclosure provided was sufficient to undertake a trial time estimate. The Crown further argued that the period of time from the first appearance on December 24th, 2020 to February 4th, 2021 should be deducted as defence delay because counsel had not made a written request for initial disclosure.

[20] The Crown asks that the time between March 11th, 2021 and April 15th, 2021 be deducted as defence delay, because defence counsel was not able to reach the assigned Crown to schedule a Crown pretrial. The Crown further argues that the time periods between April 15th, 2021 and July 8th, 2021; September 29th, 2021 and October 14th,2021; November 18th, 2021 and December 2nd, 2021; December 16th, 2021 and January 20th, 2022; and April 21st, 2022 and May 24th, 2022 should be deducted as defence delay for various reasons as set out in their Factum.

[21] In addition to any defence delay, the Crown argued that 4 months should be deducted from the net delay as delay attributable the COVID-19 pandemic backlog. No actual period of time is identified by the Crown in this request, it is simply a blanket request to arbitrarily deduct 4 months. The Crown makes general statements in their written arguments that certain dates could potentially have been scheduled earlier but for the COVID-19 backlog. The Crown’s factum does not identify anything in the evidentiary record to support the request to deduct these 4 months, no case specific information is provided and COVID-19 delay is never referenced in the transcripts. The 4-month request seems to be completely arbitrary.

Law and Analysis

[22] The Supreme Court in Jordan set a ceiling of 18 months for provincial court matters and 30 months for cases going to trial in the Superior Court, after a preliminary inquiry. Any delay above this ceiling is presumed to be unreasonable. The court stressed that the ceiling is not an aspirational target, but rather a cut off above which delay becomes intolerable (see R v. Jordan, 2016 SCC 27 at para 56).

[23] The court in Jordan stressed that a failure to deal with criminal trials in a timely matter offends the public’s sense of justice, holding that tolerating trials after long delays does not further the interests of justice (see R v. Jordan at paras. 25 & 28).

[24] The Court criticized the previous 11(b) regime at paragraph 37 holding: "Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay." (see R v. Jordan, at para. 37).

[25] The first step in the Jordan analysis is to calculate the net delay, which is the total delay (minus any defence delay) from the charge to the anticipated end of the trial. If the delay is above the ceiling it is presumptively unreasonable (see R. v. Jordan, at para. 47).

[26] Defence delay has two components: (1) that arising from defence wavier; and (2) delay caused solely by the conduct of the defence. Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The Accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (see R. v. Jordan, at paras. 61 & 63: and R v. Coulter, 2016 ONCA 704 para. 43).

[27] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay. Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. Periods of delay where the Court and Crown are not available will not constitute defence delay, even if the Defence is not available (see R. v. Jordan, at paras. 63 & 64; and R v. Coulter, para. 44).

[28] Defence actions legitimately taken to respond to the charges are not defence delay. The Defence must be allowed preparation time even when the Court and the Crown are ready to proceed. Defence requests which are not frivolous will not amount to defence delay. The Court, in Jordan, accounted for procedure requirements inherent in setting trial dates when calculating the ceiling (R. v. Jordan, at para. 65).

Delay Above the Presumptive Ceiling

[29] If the net delay exceeds the ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (see R. v. Jordan, at paras. 47 & 71: and R v. Coulter, at para. 34).

[30] Exceptional circumstances lie outside of 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. They need not meet a further hurdle of being rare or entirely uncommon (see R. v. Jordan, at para. 69).

[31] It is not enough for the Crown, after delay has exceeded the ceiling, to point to a past difficulty to excuse delay. The Crown must demonstrate that it took reasonable step to avoid and address the problem before the delay exceeded the ceiling. This includes implementing appropriate case management procedures (see R v. Jordan, at para 70).

[32] A period of delay caused by a discrete, exceptional event should be subtracted from the period of delay for the purpose of determining whether or not the ceiling has been exceeded. Any portion of the delay that could reasonably have been mitigated by the Court or Crown should not be subtracted. If the remaining delay is above the ceiling, then a stay must be entered. (see R. v. Jordan, at paras. 75 & 76).

[33] The presence of exceptional circumstances is the only basis upon which the Crown can justify a delay above the presumptive ceiling. The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex. Chronic institutional delay or the absence of prejudice to the accused must also not be relied upon. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay (see R. v. Jordan, at para. 81: and R v. Coulter, at para. 47).

Delay Due to the COVID-19 Backlog

[34] There is no doubt that the COVID-19 pandemic is an exceptional circumstance. It has affected every facet of the court system in a significant manner at some point in time. That being said, the particular effect in each instance is something that must be looked at on a case-by-case basis. While the initial court closures are long behind us, the backlog remains, but that does not mean that a blanket deduction can be made in every case to address the ongoing backlog.

[35] In s.11(b) applications that dealt with the earlier period of the pandemic it was quite clear from the record, particularly with regard to court closures, what delay was attributable to COVID-19. As we move further afield from the earlier court closures it becomes less clear what ongoing delay is still able to be deducted as due to the COVID-19 pandemic.

[36] The Crown bears the burden of demonstrating, on the evidentiary record, what delay was due to the discrete event that is the COVID-19 pandemic. The Crown must further demonstrate that delay could not have been mitigated. In order for this court to grant a deduction the Crown must establish a “causal link” between the pandemic and the delay the Crown is asking to deduct (see R v. Hinterberger, 2022 ONSC 4860 at para 44; and R v. Bui, 2021 ONCJ 379 at paras 26, 27). As Justice Goodman Stated in Hinterberger “covid 19 does not give the Crown a free pass from s.11(b) challenges, instead a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it” (see R v. Hinterberger, at para. 52).

[37] A number of other courts have recently looked at the issue of quantifying covid delay. In Bohnsack the court held that “[h]ere, a blanket approach devoid of contextual analysis would be contrary to the approach mandated in Jordan” (See R v. Bohnsack, [2022] O.J. No 3482 at para 60).

[38] The court in Bohnsack considered the procedure necessary to quantify delay due to the COVID-19 backlog. The Crown in that case did not provide any statistical evidence to assist in the quantification of the delay. The Court held that it would not make an arbitrary determination of the delay caused by a scheduling backlog and declined to deduct any time from the net delay.

[39] In Schardt the court held it was not sufficient for the Crown to simply point to the pandemic as a discrete event to justify delay stating: "As stated in R. v. Greenridge, 2021 ONCJ 57, at paras. 26 and 30, it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay). A finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period: R. v. Ali, 2021 ONSC 1230, at paras. 40 and 41." This analysis was also adopted by the court in Bohnsack (see. R v. Bohnsack at para 61, and R v. Schardt, 2021 ONSC 3143 at paras. 68, 69).

[40] In Y.D. the Crown called no evidence to assist in quantifying the delay due to the COVID-19 backlog. The court accepted that the COVID-19 pandemic did indeed cause disruptions to the Criminal Justice System and created a backlog of cases. The court then found that nothing in the evidentiary record demonstrated what was done to try to mitigate the delay in the case before the court and justify the deduction of a period of time as due to this backlog (see R v. Y.D., 2022 ONCJ 376 at paras. 32& 33).

[41] In McCudden the court held that the COVID-19 pandemic had undeniably created a backlog of cases and caused delay in the criminal justice system. The Court then continued, stating: “courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic”. The Court ultimately found that the Crown had failed to adduce any evidence that would demonstrate that the portion of time they sought to deduct was indeed as a result of the discrete event that was the COVID-19 pandemic (see R v. McCudden, 2022 ONCJ 138 at para 64 & 65).

[42] In Ajgirevitch the Crown filed an affidavit setting out the difference in time it took to set similar matters down for trial before and after the COVID-19 court shutdowns; demonstrating an increase of 3 months which was attributed to the COVID-19 backlog. The affidavit also set out measures that had been undertaken to mitigate this backlog and reduce the time to trial. This information permitted the trial judge to quantify the backlog attributable to the COVID-19 pandemic and deduct the appropriate amount of time from the net delay. (see R v. Ajgirevitch, 2022 OJ No. 2299).

Disclosure Issues

[43] The Crown has an obligation to disclose all relevant information relating to the investigation of an offense before the court. The initial disclosure must be provided prior to the accused being called upon to make an election or enter a plea. Further, the Defence has an obligation to bring any failures in the disclosure process to the attention of the court. (See R v. Stinchcombe, (1991), 68 CCC 3d 1 at paras. 24 & 28; R v. McNeil, 2009 SCC 3 at para. 17).

[44] Where the Crown fails to deliver on its disclosure obligations the Defence is not necessarily entitled to refuse to move on to the next step in the proceedings. The Court must access the nature of the material that is outstanding and whether or not the disclosure of the material is constitutionally mandated before deciding whether or not the defence is entitled to refuse to move the matter forward until disclosure is received. (See R v. M.(N.N.), (2006), 209 CCC 3rd 436 at paras. 37, 38).

Analysis

[45] The total delay here is 26 months and 12 days. The Defence concedes that 3.5 months of delay should be deducted as defence delay, this leaves an initial net delay of approximately 23 months.

[46] The Crown argues that further periods of defence delay should also be deducted. The Supreme Court in Jordan cautions against the type of parsing of days that occurred under the previous 11(b) regime. It instructs trial judges not to parse each day or month to determine whether or not each step was reasonably required, instead trial judges are instructed to take a bird’s-eye view of the case (see R v. Jordan, at para 91).

[47] It is clear here that the ITO was an integral part of the disclosure and is clearly relevant. This type of disclosure is necessary for both the Defence to assess whether or not a s.8 application will be brought, and for the Crown to respond to that challenge. No competent counsel could have been expected to set trial dates or advise their client without receiving the ITO. While Defence Counsel could certainly have been more diligent in requesting the ITO earlier, that does not erase the clear duty on the Crown to disclose the materials regardless of a defence request. It is completely unacceptable that it took the Crown 17 and a half months to disclose an ITO in a search case, further this ITO did not even require the additional steps of unsealing and vetting.

[48] This vital piece of disclosure was not disclosed until just weeks before the Jordan ceiling was reached, it was incumbent on the Crown to do so in a timely manner, which it did not. By its very nature this disclosure existed prior to Mr. Mohamed being charged, there is no reason why it should not have been included with the initial disclosure package. The further disclosure counsel requested, as a result of receiving the ITO, does not seem to have delayed setting the trial dates. There is no suggestion in the evidentiary record that the disclosure of the ITO was delayed in any way by the COVID-19 pandemic backlog.

[49] I am not prepared to find that any further defence delay can be found prior to this vital disclosure being provided on March 23rd, 2022, other than that which has already been waived by Counsel. There can be no defence delay when the Crown is not prepared to procced, and I cannot find that the Crown was prepared to proceed prior to disclosing the ITO. Nor am I persuaded that I should deduct any further defence delay after the ITO was disclosed, the matter moved swiftly to a further Judicial Pretrial and into the trial scheduling court after the outstanding disclosure was received. The matter was prioritized, and trial dates were scheduled within 5.5 months.

[50] The net delay is therefore approximately 23 months, this is clearly above the Jordan ceiling. The only remaining question is then whether or not any further time should be deducted as due to the COVID-19 pandemic.

[51] The Crown could not point to any particular period of time as delay attributable to the COVID-19 backlog, they simply asked that this court arbitrarily deduct a period of 4 months. There can be no doubt that the COVID-19 pandemic is a discrete event that caused significant disruption to the Criminal Justice System, that did not end when the courts reopened. That being said, the Crown bears the burden of demonstrating the causal link between the discrete event and an identifiable period of delay, they have failed to do so here.

[52] This Court finds that the Crown has failed to demonstrate that there is any period of delay here which can be said to have been caused by the COVID-19 pandemic backlog. In fact, the delay in this case is attributable to the failure of the Crown to disclose the ITO in a timely manner. I decline to deduct any delay as attributable to the COVID-19 pandemic. Even if I were to deduct the 4 months sought by the Crown in this case, the delay would remain above the Jordan ceiling.

[53] The application is granted, and a stay of proceedings is entered.

Released: November 1st, 2022 Signed: Justice J. Sickinger