Ontario Court of Justice

Date: 2022-01-10 Court File No.: Brampton 20-8213

Between:

HER MAJESTY THE QUEEN

— AND —

JAY SINGH TOOR

Before: Justice Paul F. Monahan

Reasons for Judgment on the s. 11(b) application heard December 15, 2021 and Released on January 10, 2022

Counsel: R. Raeesi, for the Crown P. Patterson, for the defendant Jay Singh Toor

MONAHAN J.:

Introduction

[1] The defendant Mr. Jay Singh Toor brings this application for a stay of proceedings pursuant to s.11(b) of the Charter. The defendant is charged with operating a “conveyance” while impaired contrary to s.320.14(1)(a) of the Criminal Code and operating a conveyance with a blood alcohol concentration of more than 79 mg of alcohol in 100 mL blood contrary to s.320.14(1)(b) of the Code. It is alleged that he was involved in a single motor vehicle accident on the Queen Elizabeth Way and rolled over his vehicle. He provided two suitable samples namely 155 and 144 mg of alcohol in 100 mL of blood.

Chronology

[2] Mr. Toor was arrested on May 16, 2020 and released that day on an undertaking which required him to attend court on September 18, 2020. The information charging him with the offences under s. 320.14(1)(a) and s. 320.14(1)(b) of the Code was sworn on September 7, 2020. The chronology is set out in more detail in the materials filed by both parties but broadly speaking the defence made remote appearances through counsel on September 18, October 16 and December 18, 2020 and on each appearance disclosure was not yet ready. The Crown explained that “it is still, unfortunately in the stages of preparation” (see December 18, 2020 transcript). On January 22, 2021, there was a further remote attendance in court and the defence received disclosure that date.

[3] Upon receiving disclosure, the defence asked for “dash cam, detachment and 911 tapes”. On February 12, 2021, a Justice of the Peace directed defence counsel to set up a Crown pre-trial (“CPT”) which he did on February 16, 2021 for March 30, 2021. The CPT was held on March 30, 2021 and a Judicial Pre-trial (“JPT”) was held on May 11, 2021. On May 31, 2021, a trial date was set for a three-day trial to take place on January 19, 20 and 21, 2022.

Law Applicable to Section 11(b) of the Charter

[4] The test laid down by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 to decide whether the right of a person “to be tried within a reasonable time” under s. 11(b) of the Charter has been violated is well known. I have previously summarized the Jordan calculation framework in detail in my own decision of R. v. Grewal, 2018 ONCJ 108 at paragraph 6 and I rely on that summary here.

[5] I will not restate all of the elements of the test here. Briefly stated, if the total delay (less defence delay) exceeds the presumptive ceiling in the Ontario Court of Justice (the “OCJ”) of 18 months from the charge to the anticipated end of trial, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must show exceptional circumstances (discrete events or complexity) which caused the delay.

[6] Any defence delay must also be deducted from the overall delay to arrive at the net delay. Jordan provides that defence delay can arise through waiver by the defence. Further, defence delay can arise where the conduct is caused “solely by the conduct of the defence” (Jordan para 63). The Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para 30 held that defence delay includes defence actions that are “illegitimate insomuch as it is not taken to respond to the charges”. Illegitimacy in this regard does not necessarily amount to professional misconduct. Further, it is open to the trial judge to find other defence actions amount to defence delay (Jordan para 64).

[7] Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail (Jordan para. 82).

[8] The covid-19 pandemic has consistently been found to be an exceptional circumstance which may lead to a deduction from the s. 11(b) calculation if it can be proved on a balance of probabilities that the delay was caused by the pandemic: see R. v. Truong, 2020 ONCJ 613 at para 71 and R. v. Greenidge, 2021 ONCJ 57.

The Position of the Parties

[9] The defence claims the delay for s. 11(b) purposes is from the date of arrest (May 16, 2020) to January 19-21, 2022, a period of 20 months and three days. The defence submits that there is no defence delay and that the delay exceeds the 18 month ceiling set by the Supreme Court of Canada in Jordan and therefore needs to be stayed.

[10] The Crown submits that pursuant to R. v. Kalanj, [1989] 1 S.C.R. 1594, the pre-charge delay from May 16, 2020 to September 7, 2020 (when the information was sworn) does not factor into the s.11(b) calculation. The Crown submitted in its written materials that there was defence delay in the setting a CPT and a JPT of 17 days and that the net delay is 15.9 months which falls below the 18 month ceiling set in Jordan. In oral argument, the Crown submitted that there was further defence delay associated with the setting of the CPT. The Crown submits that the test for a stay where the delay falls under 18 months has not been met. The Crown also submits that the delay that occurred in this case was due in part to the covid-19 pandemic.

[11] The defence responds on the Kalanj point that that case ought not to apply in this case and that in any event the pre-charge delay led to a violation of s. 505 of the Criminal Code and s. 7 of the Charter. The defence submits that the alleged s. 7 violation and the s.11(b) issues taken together ought to lead to a stay under s. 24(1) of the Charter.

Discussion and Analysis

[12] The delay from the arrest date to the anticipated end of trial is 20 months and five days. If one deducts the pre-charge delay, the delay from the date the information was sworn to the anticipated end of trial is approximately 16.47 months.

[13] In my view, the law is clear that for s. 11(b) purposes the clock starts running at the time the information is sworn: see Kalanj supra and R. v. E. (K.), 2013 ONCA 175 at para 20.

[14] The defence points to, among other cases, R. v. Luoma, 2016 ONCJ 670, a drinking and driving case, where Justice Schreck (when he was a judge of this court) included the time before the information was sworn as delay under the s. 11(b) calculation. I understand the argument for potential unfairness that can result in not counting pre-charge delay under s. 11(b) in a drinking and driving case. However, I consider myself bound by Kalanj. Simply put, Kalanj is clear that the s. 11(b) clock starts when the information is sworn. The argument that a drinking and driving cases is different than the type of case considered in Kalanj has some persuasive force. However, the date the information has been sworn has been used as the starting point for the s.11 (b) clock in binding drinking and driving cases as well: see Justice Fairburn’s decision (as she then was) in R. v. Lacroix, 2017 ONSC 334 at para 37 which was a summary conviction appeal drinking and driving case by which I am bound.

[15] Therefore, even apart from any defence delay associated with the setting up of the CPT or the JPT or any delay associated with the pandemic, the s. 11(b) delay in this case to the anticipated end of trial is at most about 16.5 months.

[16] The defence submits that even if the s.11(b) clock does not start until September 7, 2020, there should nevertheless be a stay because the pre-charge delay should be seen as a violation of s. 7 of the Charter. The defence argues that the Crown failed to comply with the provisions of s. 505 of the Code because it failed to lay the information “as soon as practicable”. Kalanj contemplates that the pre-charge delay could potentially lead to a violation of s. 7: see Kalanj, supra at p. 1611.

[17] In my view, notwithstanding that the Court in Kalanj indicates that a court can consider the pre-charge delay under s. 7 that does not mean one can simply point to s. 505 of the Code and to s.7 of the Charter and then seek to add the pre-charge delay to the s.11(b) delay resulting in a stay under s. 24(1). An alleged s. 7 violation is not the same as an alleged s.11(b) violation. Pre-charge delay can be relevant under s.7 of the Charter where there is an effect on the fairness of trial: see R. v. L. (W.K.), [1991] 1 S.C.R. 1091 and Mills v. The Queen, [1986] 1 S.C.R. 863. Here, there is no evidence or good reason to suggest or expect that the pre-charge delay will impact on trial fairness. Further, there is no authority for the proposition that the failure to comply with s.505 of the Code (assuming for a moment that there was such a failure here) amounts to a s. 7 Charter violation.

[18] Pre-charge delay can also lead to a stay under s. 7 where the principles of fundamental justice are violated because the community’s sense of fair play and decency is offended and a stay is necessary to prevent oppressive or vexatious proceedings: see R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.) This is a residual discretion which applies in only the clearest of cases. There is nothing to support the exercise of this residual discretion in this case. In particular, it can’t be said that the community’s sense of fair play and decency would be offended by the continued prosecution of this case or that a stay is necessary to prevent oppressive or vexatious proceedings.

[19] Further. there is an important context in which this case has to be considered. That context is the worldwide covid-19 pandemic. The Court can and should take judicial notice of the following including by reference to the OCJ’s website which contains numerous covid-19 notices:

(a) We are currently still in the worldwide covid-19 pandemic. The world has not seen a pandemic like this one in 100 years. The pandemic has killed millions of people worldwide and it is not over yet;

(b) It is well known that by reason of the pandemic, the OCJ was closed to trials and preliminary hearings from March 16, 2020 to July 3, 2020. All out of custody trials and preliminary inquiries were cancelled on March 16, 2020 and in custody cases were cancelled within a week after that point in time;

(c) The Brampton OCJ is one of the busiest courts in the country. As is apparent from the published court lists, on a daily basis, the Court generally operates a minimum of 25 courts for criminal and family cases, including Justice of the Peace Courts. Approximately 16 of these courts are criminal trial and plea courts in which judges sit;

(d) On July 6, 2020, the Brampton OCJ re-opened 7 courts for criminal trials and preliminary inquiries and family trials. In September 2020, another 9 courts were re-opened for these purposes with the balance being re-opened in November 2020 and thereafter;

(e) As is clear from the OCJ website, when the courts partially re-opened on July 6, 2020 the Chief Justice directed that the trials and preliminary inquiries cancelled between March 16 and July 3, 2020 had to be rescheduled with a priority being given to in custody cases that were cancelled during this time. Otherwise, the cancelled trials and preliminary hearings were directed to be rescheduled on the basis of the date of the original trial or preliminary inquiry;

(f) As is apparent from the OCJ website, new cases such as this case could not even request a trial date until the end of September 2020;

(g) As is clear from the OCJ website, Justice of the Peace case management courts were also closed from March 16, 2020 and did not re-open until August 24, 2020 when they re-opened remotely;

(h) As is apparent from the OCJ website, the OCJ was closed again by direction of the Chief Justice, but this time only partially, when all virtual trials for a 2 week period from April 26, 2021 to May 7, 2021 had to be adjourned to try to reduce the number of people entering the courthouse during a critical phase of the pandemic. As a result, more trials and preliminary hearings had to be rescheduled.

(i) As I write these reasons, the world including the Justice system, faces the omicron variant, said to be the most transmissible of the covid-19 variants thus far in the pandemic.

[20] A further point of context is relevant. Prior to the pandemic every attendance in a case such as this one would be in person, from the case management attendances to the trial. While dealing with the backlog created by the closure of the courts in the spring and summer of 2020, the Court then had to pivot and begin to offer remote court appearances and trials. Based on my review of the transcripts in this case, this case has never required an in person attendance meaning that it would appear that the Crown, defence counsel and the defendant have been able to deal with all aspects of this case including court attendances remotely without ever leaving their homes or offices, something that had never occurred in the Brampton OCJ prior to the pandemic.

[21] It is in the foregoing context that the arguments regarding the alleged s.7 and s.11(b) Charter violations and alleged s. 505 Code violation must be considered. The defence submits that the information in this case could have been sworn earlier and an earlier return date obtained for this case. The practical reality is that the Justice of the Peace Courts were closed from March 16, 2020 and did not even start sitting again until August 24, 2020 when they began addressing the backlog of cases. I don’t know whether the officer who laid the information in the case before the Court delayed laying it intentionally due to the pandemic or whether he simply forgot to lay it or was delayed for some other reason. In my view, the further practical reality is that the delaying of the first appearance until September 2020 in this case was helpful (either by intention or by chance) because the trial courts were closed from March 16 to July 3, 2020 and the case management courts did not even start sitting again until August 24, 2020. The courts had to deal with the backlog created by the court closures and a new case started during the pandemic such as this one would necessarily have to be scheduled after the older cases which had had their trials and preliminary inquiries cancelled had been rescheduled. Again, this is clear from the covid-19 notices on the OCJ website.

[22] Viewed through the pandemic lens, I am not satisfied that the delay in the swearing of the information was a s. 505 violation. I agree with defence counsel that a 114 day delay between the arrest date to the laying of the information in this case would not normally be said to be “as soon as practicable” but the same can’t be said of an 114 delay during a unprecedented worldwide pandemic which caused the trial and case management courts to be closed for a large part of that time. Even if the 114 day delay was a violation of s. 505, I am not satisfied there was a s. 7 Charter violation for the reasons outlined above in my review of the s. 7 law.

[23] Let me return to the issues at hand. The overall delay from the laying of the information to the anticipated end of trial is approximately 16.5 months. In my view, there was about 7.5 weeks of defence delay. First, there was a delay from February 16 to March 30, 2021 (6 weeks) in the setting of a CPT. I understand that defence counsel simply used the electronic system to set up the CPT and it gave him the March 30, 2021 date. Nevertheless, it is common knowledge in Brampton that a CPT can be held on any day in Brampton (see R. v. Kaur, 2021 ONSC 7519 at para 23). Further, the email of February 12, 2021 to defence counsel in this case suggested that defence counsel could email two specific crown counsel (and gave their email addresses) for the purpose of booking a CPT. There was no attempt to contact them as I understand it which led to a 6 week delay in the setting of the CPT which I view as defence delay. Second, there was a further 10 day defence delay in the setting of the trial date. The trial coordinator’s office offered multiple times to Crown and defence counsel to set the date between May 20 and May 28, 2021 but the defence was only available on May 20 (which was not available by the time defence counsel advised he was available) and then not again until May 31. Accordingly, there was in my view a 10 day defence delay from May 20 to May 30 or 31, 2021. Accordingly, the overall delay for s. 11(b) purposes is just under 15 months (16.5 months less 7.5 weeks of defence delay). The defence delay I have observed with respect to the setting of the CPT and JPT may appear to be a criticism of defence counsel but it is not. Defence counsel is a well respected and fine counsel and his client’s interests have been well served.

[24] Whether this case is viewed as just under a 15 month delay or 16.5 month delay case under the s. 11(b) analysis, the result is the same in my view. There was no violation of s.11(b) in this case. Putting aside the question of whether the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings, this case did not take markedly longer than it should have which is one of the requirements for a s. 11(b) stay where the delay is under 18 months. I say this with particular reference to the ongoing pandemic which has had a direct impact on the operation of the OCJ.

[25] Let me mention one further point regarding the pandemic and the Justice system. I have already said that the pandemic which caused the closure of the courts for 3 ½ months in the spring of 2020 was clearly an exceptional circumstance. This is nothing new and many courts have said it. As the Chief Justice of the B.C. Provincial Court said in R. v. Ali Ismail, 2020 BCPC 144 at para 147, the covid-19 pandemic has presented the justice system with “challenges that have no precedent in our lifetimes”. It is not necessary for me to decide this point but I note that it may be that even if the pre-charge delay were to be included in the s. 11(b) calculations (which the Supreme Court has said should not be done), the pandemic may be said to have caused many months of delay in this and other cases.

[26] In particular, where a case started during the pandemic when the trial and case management courts were closed for months (as this case did); and dates for trial were not and could not be even requested for many months after the case started and could only be scheduled after the trials and preliminary inquiries cancelled during the court shutdown were rescheduled; and the trial courts were not fully operational for many months after the court shutdown, there is an argument that on those facts alone (which can’t be seriously disputed) that it can be said on a balance of probabilities that at least 3.5 months (and maybe more) should be deducted from the s.11(b) calculation. Other cases may fall into this category as well. It is not necessary that I decide this point in light of my views expressed above that the delay in this case is at most only just under 15 months and this case has not taken markedly longer than it should have. As a result, I leave for another case the question of whether there should be a further discrete deduction for the court closures related to the pandemic itself.

Conclusion

[27] For the reasons outlined above, the s. 11(b) application is dismissed.

Released: January 10, 2022 Justice Paul F. Monahan