Ontario Court of Justice

Date: December 6, 2022 Court File No.: Brampton 3160 999 00 0289636f 00

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOSEPH GUISTE

Before: Justice of the Peace V. Fisher-Grant

Heard on: October 24, 2022 Reasons for Judgment released on: December 6, 2022

Counsel: Mr. K. Wiedekowsky, agent for the respondent Mr. R. Burd, agent for the applicant

[1] The applicant seeks a stay of proceedings under sections 11(b) and 24(1) of the Charter of Rights and Freedoms.

[2] The parties agree that the 18 month ceiling established in R. v. Jordan, [2016] S.C.C. 27, to complete the matter before the Ontario Court of Justice has been exceeded in this case. The delay therefore is presumptively unreasonable. As a result, the burden shifts to the respondent to rebut the presumption of unreasonableness by establishing whether there are exceptional circumstances.

[3] The application is not allowed for the reasons as set out below.

[4] The applicant was charged on January 27, 2020 with speeding contrary to the Highway Traffic Act, section 128. The Certificate of Offence was filed on January 29, 2020. The applicant requested an early resolution date which was then scheduled for May 29, 2020 in the Brampton Provincial Offences court.

[5] Thereafter a trial date was scheduled for the September 9, 2022. After a trial was conducted in the matter, the applicant in his submissions expressed concerns regarding the delay in which the matter had taken to come to trial. The matter was adjourned for the applicant to obtain legal advice.

[6] The matter was adjourned to October 24, 2022. On that date the applicant’s agent attended having filed 11(b) application materials and the motion was heard. The matter was adjourned for decision to December 5, 2022. The motion was dismissed on December 5, and these reasons were provided to the parties on December 6, 2022.

[7] The total time from the filing of the certificate to the date of trial is 31 months and 11 days.

The Law

[8] Under the Charter, the applicant has a right to be tried within a reasonable time.

[9] The Supreme Court of Canada in R. v. Jordan addressed what was termed a culture of complacency and set a presumptive ceiling for delay for matters heard in the Ontario Court of Justice at 18 months. The 18 month ceiling was thereafter affirmed at 18 months for Part I and III matters heard under the Provincial Offences Act. See R. v. Nguyen, 2020 ONCA 609.

[10] The Ontario Court of Appeal addressed the steps to be taken when analyzing applications under the Jordan framework as follows:

1. Calculate the total delay - the period from the charge to the actual or anticipated end of trial.
2. Subtract defence delay from total delay, which results in the "net delay".
3. Compare the net delay to the presumptive ceiling.
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached.
6. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

See R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005, paras. 34-40.

The position of the parties

[11] The parties agree that the presumptive ceiling established by Jordan has been exceeded. The parties diverge on what amount can be deducted as exceptional circumstances due to the Covid-19 pandemic that would reduce the net delay.

[12] The applicant submits that there has not been any delay on their part. Dates in the matter were set administratively by the court upon request of the applicant but without the applicant’s input.

[13] The applicant acknowledges in submissions that the global covid-19 pandemic time period constitutes a discrete event that can be deducted from the total delay. They submit that the time period from March 2020 to July 2020 is appropriate to deduct from the total delay. They submit however that as the criminal courts opened and heard matters beginning in July of 2020 it was reasonable to expect that Provincial Offences courts would also open to hearing matters at that time; the Charter should apply equally to both forums.

[14] The applicant further argued that it is up to the prosecution to choose which matters are dealt with. And as the prosecution chose to not make the applicant’s matter a priority, the delay beyond July 2020 should not be deducted from the total. The applicant did not provide any case law to support the argument that the time period to be deducted should mirror the time period of the criminal courts reopening. Nor was I provided any materials regarding the pandemic nor any other reopening dates in the POA courts. I have chosen to not dismiss the matter outright, but I am somewhat hampered in my efforts to analyze the matter in a fulsome way given the lack of detailed materials.

[15] The respondent submits that the offence date to the first early resolution date was five months. On May 29, 2020, the early resolution date, the matter was marked for trial. Thereafter 28 months elapsed until the matter was heard for trial on September 9, 2022. The prosecution submits that the additional months in the midst of a global pandemic is not unreasonable in the circumstances particularly given the numbers of matters that are backlogged and now need to be scheduled.

[16] I note that the Chief Justice of the OCJ made various orders and directives pursuant to s. 85 of the POA which effectively adjourned all POA trials scheduled from March 16, 2020 to January 22, 2021. On the instruction of the Regional Senior Justice of the Peace [RSJP] of the Central West Region made pursuant to s.49(5) of the POA, the Clerk of the court was instructed to administratively adjourn all matters scheduled in person in POA courts. New dates for these matters were to be determined at a later date in consultation with municipal court managers. Approval from the RSJP was given to begin scheduling trials starting April 1, 2021.

[17] The further directive of the Chief Justice of the Ontario Court of Justice was that the scheduling of in-person matters could begin April 4, 2022. Effective April 4, 2022, as a result of the easing of pandemic restrictions, the Chief Justice directed that Provincial Offences Court managers could work with their Regional Senior Justices of the Peace (RSJP) to resume scheduling in-person matters. See COVID-19: Notice to Counsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice (Revised May 10, 2022) | Ontario Court of Justice (ontariocourts.ca)

Analysis

[18] When calculating delay, the Jordan clock begins when the proceeding commences. For matters under Part I of the POA, the proceeding commences upon filing the Certificate of Offence in the court per section 3(1) of the POA, not the date of Offence nor the date when the certificate was issued. In this matter the Certificate was filed on January 29, 2020.

[19] I accept in this case that the total delay is 31 months and 11 days. In my view the time period from March 29, 2020 until April 4, 2022 should be deducted from the overall delay as being counted as delay caused by the exceptional discrete event due to the pandemic for the reasons outlined herein.

[20] In Oshawa (City) v. Amodeo, [2022] O.J. No. 91 the court deducted the entire time from the closure of courts to the trial date as part of the delay occasioned by the pandemic. The court reasoned that:

[33] The applicant concedes that the COVID-19 OCJ court closure was a discrete event. The applicant submits that the amount to be deducted from the Jordan framework covers the period from March 16, 2020 (COVID-19 closures) to August 5, 2020 (4.7 months) when OCJ began allowing the continuation of out of custody criminal trials. I disagree. In my view, the entire period, from the March 23, 2020 trial date to the October 18, 2021 appearance should count as delay caused by the discrete event.

[34] The COVID-19 pandemic has caused a sweeping transformation in all aspects of our daily lives. Out of necessity, the justice system has had to transform the way it delivers justice in this province literally overnight. This transformation has required strategic choices and prioritization. It should come as no surprise to anyone that criminal matters in this province had to be given highest priority. I disagree with the applicant's submission that provincial offences courts should have (or could have) moved forward with scheduling matters on par with the criminal courts. Notwithstanding the remarkable achievements by the justice system and the various stakeholders to pivot to a virtual world in short order, backlogs and scheduling pressures continue to mount as we traverse a 4th and potentially 5th wave of COVID-19. The pandemic is not over nor is the ripple effect that it has caused. In my view, any delay accumulated from the time when courts were able to start rescheduling trials to the actual trial dates form part of the discrete event. This finding is supported by decisions of the Superior Court and Ontario Court of Justice (R. v. Simmons, 2020 ONSC 7209, Toronto (City) v. Yaqoobi [2021] O.J. No. 6149, Toronto (City) v. Soudine [2021] O.J. No. 4939.)

[21] In R v. Simmons, supra, Justice Nakatsuru indicated:

[69] First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 – 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 – 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.

[70] Second, 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 way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. 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.

[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 – 84.

[72] Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.

[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region—which has now suspended jury trials again since October 9, 2020—has recently extended the suspension of jury trials to January 4, 2021. [4] In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.

[22] With respect, I disagree with the applicant that the time period to be deducted is limited to the date that criminal trials opened. As indicated above in Amodeo, the reasoning in which I adopt, “Out of necessity, the justice system has had to transform the way it delivers justice in this province literally overnight. This transformation has required strategic choices and prioritization. It should come as no surprise to anyone that criminal matters in this province had to be given highest priority. I disagree with the applicant's submission that provincial offences courts should have (or could have) moved forward with scheduling matters on par with the criminal courts.”

[23] However, in my view there is a distinction to be drawn between this matter and the reasoning in Simmons and Amodeo. The pandemic was still creating numerous waves and closures at the time of trial of those matters and writing those judgments. While the courts are still facing an unprecedented backlog of cases, courts have now been open for some time and the province has now reopened. We are no longer facing pandemic waves resulting in mandated closures nor waves of infection as described in these matters.

[24] The court in R. v. G.S., 2022 ONCJ 427 noted that there is a difference between cases depending on when they entered the system.

[64] This is not a blanket exemption. Cases that have entered the system later in time, or been set down for trial in 2022, should be held to a different standard. But the standard that would be expected of a matter set down for trial today cannot be the same that is applied to a case that was set down for trial in September of 2021.

[65] The Applicant framed the issue as “is there evidence that G.S.’s trial would have been reached earlier if not for the COVID-19 pandemic.” In my view, the only available conclusion is that it would have been.

[25] And recently in the case of Durham (Regional Municipality) v Quezada, [2022] O.J. No. 5105, Justice of the Peace K. Hunter reasoned:

12 This presumption of unreasonableness is rebuttable by the existence of exceptional circumstances. The only exceptional circumstance the Respondent seeks to rely upon is the discrete event of the COVID-19 pandemic. The Applicant concedes that the pandemic is a discrete event but submits that it only accounts for 12 days of delay: from when the Certificate of Offence was filed with the court (January 13, 2021) to when the court began the process of rescheduling trials (January 25, 2021).

13 I disagree. The pandemic has resulted in a sweeping transformation of the way we do things in many aspects of our lives. The necessary reimagination of the way justice is administrated in this province is no different. Despite the tremendous accomplishments of the justice system in achieving a workable virtual system in a short time frame, backlogs and scheduling pressures continue to mount as we prepare for yet another wave of infections in Ontario. The pandemic is by no means over, nor are the scheduling delays it has caused. This discrete event, which disrupted operations to their core, did not simply end when the trial resumption process began.

14 And yet, the pandemic cannot be relied upon indefinitely as an exceptional circumstance to justify delays which exceed the presumptive ceiling. As various courts reimagine their operations, periods of delay properly attributable to the pandemic will depend on the measures employed by each jurisdiction.

16 To be clear, in determining the delay attributable to the discrete event, the period from when the trial scheduling process resumed to the date of the first scheduled trial may only be a starting point. The delay caused by the pandemic is arguably longer … [emphasis added]

[26] As a result, I find that this matter would have been reached much sooner but for the pandemic. Although the matter did receive an early resolution meeting despite there being pandemic closures of trial courts. Courts were closed on March 16, 2020. The applicant received an early resolution meeting date of May 29, 2020. During this time although there were closures related to the pandemic, the parties were waiting for the early resolution date; the applicant had not yet chosen whether they wished to proceed to trial at that point. Therefore, I find that it is an appropriate starting date to begin the deduction of delay is the date of the early resolution meeting, not the date of the court closure. On May 29, 2020, a meeting was available but it was not open to the applicant to have a trial scheduled as the courts remained closed due to the pandemic.

[27] I find that an appropriate date to end the deduction is at least April 4, 2022 which is the date that the Chief Justice noted that in-person matters could resume. I agree with Justice of the Peace Hunter that there cannot be indefinite reliance on the pandemic to justify delays that exceed the presumptive ceiling. This date strives to find a balance between the difficultly in scheduling due to the backlog as noted in Simmons and Amodeo, but also recognizes that the pandemic has now largely come to an end. The recognition of allowing in-person matters gives a starting point date for which trials resumed.

[28] The April 4, 2022 was also chosen in the particular circumstances of this case as I have no evidence before me, as indicated by Justice Nakatsuru, that gives me any sense of how this courthouse is faring regarding backlog and setting trials. I am not holding that the April 4, 2022 date is an appropriate end date in all matters. Certainly, where evidence is proffered and accepted, the end date may well fall beyond that time. The date is not an island whereupon the prosecution could be expected to schedule all backlogged matters to be heard immediately. While the discrete event very likely extends beyond April 4, 2022, I am unable to make further concrete findings in this regard because of the lack of evidence relating to this region’s efforts to resume POA court operations. In the end result, it does not impact my decision on this application in any event.

[29] While there isn’t any evidence or argument that the prosecution moved the case forward or gave it any priority, I am prepared for the above reasons to subtract the time period between May 29, 2020 and April 4, 2022 as total delay to reflect the backlog occasioned by the pandemic.

[30] The time period from the early resolution meeting while courts were closed on May 29, 2020 to reopening of POA courts in-person on April 4, 2022 is 22 months, 6 days. The total delay 31 months, 13 days less 22 months, 6 days is a net delay of 9 months 7 days.

[31] As the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.

[32] There is no evidence that the defence made any effort to bring the matter forward. The matter proceeded on the first trial date offered.

[33] As such, the Applicant’s right to a trial within a reasonable time has not been infringed.

[34] Application is dismissed.

Released: December 6, 2022 Her Worship V. Fisher-Grant