Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 06 08 COURT FILE No.: Newmarket 4911-998-21-91104561-00 4911-998-21-91104562-03

BETWEEN:

HIS MAJESTY THE KING

— AND —

ELIJAH JACQUES-TAYLOR

Before: Justice Edward Prutschi

Heard on: March 27, 2023 Reasons for Judgment on 11(b) Application released on: June 8, 2023

Counsel: Jeremy Mutton and Ivana Denisov................................................ counsel for the Crown Rachel Lichtman................................... counsel for the accused Elijah Jacques-Taylor

PRUTSCHI J.:

[1] The Applicant faces a series of serious firearms charges dating back to an Information sworn on Nov. 18, 2021. His trial is currently scheduled to proceed on October 2-4, 2023, some 22 months and 2 weeks after the laying of the charge. The Applicant seeks to have his charges stayed for violating his s. 11(b) right to trial within a reasonable time.

[2] The Application raises three distinct issues:

(i) What period of delay, if any, should be apportioned to the defence for the time between the provision of substantially complete disclosure to the date a Crown pre-trial (CPT) was conducted and a judicial pre-trial (JPT) was set? (ii) What period of delay, if any, should be apportioned to the defence due to counsel’s unavailability for trial in the month of September 2023? (iii) What period of delay, if any, should be apportioned to the impact of COVID-19 on court operations?

[3] When an accused person’s trial is unable to take place within a reasonable time, this violation of their Charter rights necessitates the drastic remedy of a stay of proceedings. The reasons that follow explain why I have concluded a stay is necessary in this case.

The 11(b) Framework

[4] Since the Supreme Court's decision in R. v. Jordan, 2016 SCC 27, a "ceiling" of 18 months has been set for cases being heard in the Ontario Court of Justice. Cases below that ceiling are deemed to be presumptively within tolerable limits for delay subject to the defence demonstrating that, in the face of meaningful and sustained steps to expedite proceedings, a case still markedly exceeded its reasonable time requirements in the circumstances.

[5] Cases above the 18-month ceiling are deemed presumptively unreasonable and this presumption can only be rebutted by the Crown establishing "exceptional circumstances" warranting further delay.

[6] The 18-month tolerable ceiling is applied after deducting defence delay and accounting for any discreet events which must be subtracted to reach a net delay figure.

[7] Jordan was a clarion call from the Supreme Court to all actors within the criminal justice system. It was an explicit directive to jettison the culture of complacency that had infected trial scheduling. The introduction of a presumptive ceiling drew a clear bright line in the hopes of establishing a well-recognized marker for tolerable delay that would vastly simplify the hyper-mathematical battleground upon which previous 11(b) wars had been waged.

Calculating Defence Delay

[8] The Crown alleges two distinct periods of defence delay which it seeks to have deducted from the Jordan timeline.

Time from completion of substantial disclosure to time of setting JPT

[9] The parties agree that substantial disclosure was completed in this case by February 14, 2022. On that day some important crown disclosure was provided to the defence with the next court date scheduled for February 23. The parties further agree that the period from February 14 to February 23 should be accorded neutral weight as a reasonable time period for defence counsel to assess and review disclosure with her client. Although some disclosure remained outstanding at that time, it is common ground that enough critical pieces of disclosure had been provided to conduct a meaningful CPT and JPT.

[10] On March 27 Jeremy Mutton became the assigned Crown on the case. Mr. Mutton reached out to defence counsel, urging her to conduct a CPT. Ms. Lichtman responded almost immediately, and a CPT was held on March 31. In the interim, the defence was provided with further disclosure material on both February 17 and March 21.

[11] On April 20 Ms. Lichtman’s office requested some additional disclosure from the Crown. That same day, the defence was provided with other items of new disclosure. On April 21 Ms. Lichtman reached out to the Crown, inquiring about the procedure in the Newmarket jurisdiction to set a JPT. On April 28 the Crown emailed the Trial Coordinator’s (TC) office on behalf of both parties to set the JPT which was scheduled for June 15.

[12] The Crown argues that the 57 days from February 23 to April 28 demonstrate a failure by the defence to actively advance the case to trial and should be considered defence delay.

[13] This submission selectively places responsibility solely on the defence to proactively progress the case to trial. The Jordan framework calls on all parties to abandon the previous culture of complacency, replacing it with a commitment to take reasonable steps forward at every stage of the proceeding. Jordan requires the parties to act reasonably, not perfectly.

[14] The defence is no more responsible than the Crown to advance towards a CPT in the month between February 23 and March 27. Though it is laudable that Mr. Mutton of the Crown’s office took the initiative on March 27 to contact counsel to schedule the CPT, it is equally laudable that Ms. Lichtman responded essentially immediately, and the parties were able to conduct that CPT within days on March 31.

[15] Following the CPT, it was Ms. Lichtman who took the initiative, reaching out to Mr. Mutton to progress towards a JPT. The Crown reacted expeditiously only a week later setting that JPT through the TC’s office for June 15, 2022.

[16] I see nothing unreasonable in the conduct of either party between February 23 and April 28. These 57 days are simply part of the normal routine to be accounted for within the 18-month ceiling.

Defence unavailability for some trial dates offered

[17] In Newmarket the final phase in setting a trial date occurs on the record in a Blitz Trial Scheduling Court (BTSC). That court appearance is attended by both counsel along with a representative from the TC’s office. The BTSC appearance in this case took place on July 6, 2022.

[18] The first available trial dates offered by the TC were for August 8 to 10, 2023. Notably, this is some time after the 18-month cutoff for this case of May 18, 2023.

[19] Ms. Lichtman and the Crown were both available for the August trial dates but counsel for the co-accused was not. Ms. Lichtman had other available dates in August though co-counsel did not. The TC offered dates in September, but Ms. Lichtman was unavailable in that month. The parties finally all agreed on the dates of October 2 to 4 which remain the anticipated trial dates for this case.

[20] The Crown seeks to impute defence delay for the 55 days from the first-offered August dates to the ultimate October trial. This seems a counter-intuitive proposition in light of Ms. Lichtman’s availability for the August trial dates. Moreover, it runs contrary to the Supreme Court’s recent comments in R. v. Hanan, 2023 SCC 12 which rejected a “bright-line” rule imputing to the defence any and all delay that might follow their rejection of an offered trial date. Instead, Hanan mandates that, “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”.

[21] Following the Hanan decision, Duncan J. took the opportunity to reconsider an 11(b) decision he had recently reached. After careful analysis he concluded that, “there are no bright lines, that each case turns on its particular circumstances and a contextual approach is required.” R. v. Quereshi (No. 2), 2023 ONCJ 202, at para. 15.

[22] This holistic approach was already being applied by the Ontario Court of Appeal. In R. v. Gopie, 2017 ONCA 728, at para. 128 where the Crown argument “that delay by one accused should be attributed to all”, was rejected. The court held instead that, “an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused”. Gopie does however recognize that the scheduling challenges posed by multi co-accused trials might be a factor when assessing exceptional circumstances in 11(b) cases that are marginally over the 18-month ceiling. The ONCA has carved out an exception to this “individualized approach” where multiple defendants “proceeded as a collective”. Where “the defence proceeded through the system as a collective, the delay caused by scheduling challenges must be analyzed in the same manner – that is communally”. See R. v. Albinowski, 2018 ONCA 1084, at para. 37-38. Such was not the case here.

[23] The definition of “defence delay” remains unchanged since Jordan: delays caused solely or directly by the defence’s conduct or delays waived by the defence. Where there are multiple defendants, “the defence” is not to be treated as a single indistinguishable unit, rather, the conduct of each defendant is to be assessed individually.

[24] Applying an individualized approach to the specific circumstances of Mr. Jacques-Taylor’s case leads me to conclude that only the month-long delay caused by Ms. Lichtman’s unavailability in September should be considered defence delay. One month will therefore be deducted from the final 11(b) calculation.

The Court’s BTSC direction regarding the filing of 11(b) applications

[25] The Crown furthers asks me to assess some undefined time period against the defence in light of their non-compliance with judicial directives at the BTSC. By coincidence, I happened to be the presiding Justice at both the JPT, the BTSC, and now this 11(b) Application.

[26] Upon setting the October trial dates I advised all counsel that if an 11(b) was contemplated, the application and its associated materials should be filed within 120 days of the BTSC date. This approach was later adopted as the local practice direction promulgated by Local Administrative Justice Henschel in November 2022.

[27] The purpose of both my specific comments, and the later practice direction, was to ensure that 11(b) applications were brought in a timely fashion well in advance of trial. This permits the Crown to attempt to fill space created by trial collapses with cases in 11(b) jeopardy. It also permits the early determination of 11(b) applications which in turn frees up valuable trial time where the application is granted. Such an approach is part of the Court’s obligation to move past the old culture of complacency and adopt a post-Jordan methodology that helps guarantee reasonable trial times.

[28] In this specific case, upon receipt of the perfected 11(b) materials the Crown attempted to secure earlier trial dates from the TC. On March 16, 2023, Mr. Mutton floated potential new dates in April and July of 2023 that could become available due to the anticipated collapse of other trials. Ms. Lichtman was unavailable for the July dates but was potentially open to the April dates. Counsel for the co-accused could not accommodate the April dates and so these efforts were abandoned.

[29] The question of what consequences should flow from non-compliance with either the directions of the BTSC judge or a local practice direction is a challenging one. However, on the facts of this specific case it has no application here in light of the actions taken by Ms. Lichtman.

[30] Just three weeks after the BTSC appearance the matter was back in court on July 25, 2022, to ensure that the accused were put to their elections. At that court appearance an agent for Ms. Lichtman noted on the record that they planned “on filing an 11(b)” and sought direction as to when and how such applications were being scheduled in Newmarket.

[31] This squarely placed the Crown on notice and served as in invitation to monitor case collapses on an ongoing basis to see whether earlier trial dates could be obtained. Had the Crown made its March 2023 prioritization efforts in August or September of 2022, they might well have borne fruit. Having waited until the defence filing was completed many months later, I cannot speculate as to what earlier trial dates might have been secured.

The Discrete Event of COVID-19

[32] Much ink has been spilled defining and bemoaning the impact of COVID-19 on court operations generally and reasonable trial times specifically. There can be no doubt that the pandemic, though never envisioned by the Supreme Court at the time of its Jordan decision, is the ultimate “discrete event” requiring consideration and analysis in 11(b) applications.

[33] COVID-19 stalled thousands of cases when it necessitated the closure of courthouses across the province. This generated a batch of cases whose aborted trial dates needed to be rescheduled. It also dramatically slowed the pace of cases in the system whose trials were not directly adjourned as a result of COVID but whose progress through the pre-trial and set-date stages was interrupted by court closures.

[34] As these legacy cases negotiated their way through bogged-down courts, arrests continued introducing new cases into a system already struggling to deal with the immediate backlog created by the initial COVID shock. This backlog has been recognized by the Ontario Court of Appeal as “notorious” and, “exactly the kind of exceptional circumstance envisaged in R. v. Jordan.” R. v. Donnelly, 2023 ONCA 243, at para. 23.

[35] Collectively, all of these cases are working their way through the justice system in what Dunphy J. colourfully described as “the proverbial pig in the python” waiting “to be fully digested” R. v. Titus, 2022 ONSC 3484, at para. 18. How long, and to what extent, must we tolerate courthouse indigestion? This is the intractable problem in the 11(b) aftermath of COVID-19.

[36] The Crown submits that four months should be deducted to account for the ongoing impact of COVID-19 on the time-to-trial. The Crown cites a series of cases in support of the proposition that, despite their best efforts, high-volume jurisdictions (which certainly aptly describes Newmarket) continue to be impacted by COVID backlogs which call for a deduction of three to four months from the Jordan ceiling.

[37] The Crown notes that, in R. v. L.L., 2023 ONCA 52, at para. 21, the Ontario Court of Appeal explicitly endorsed trial judges drawing upon their “own knowledge of the culture at the court location” where they sit to determine whether the pandemic had an impact on the scheduling of a particular case. Though in that case the application judge ultimately attributed no COVID delay, recent cases in this jurisdiction suggest Newmarket’s experience has been different.

[38] In R. v. Korovchenko, 2022 ONCJ 38, at para. 105-106 Henschel J. acknowledged the efforts of justice system participants across the region to “respond to the challenges posed by the pandemic”. Despite those efforts, she observed that the time-to-trial for relatively simple two-day matters had “been extended by a minimum of three months because of the pandemic”. She noted that “[t]he period of three months is likely a modest estimate” but that it was a “reasonable allowance” that included additional time necessitated by the COVID-era practice of the BTSC appearance in order to schedule trial dates. She declined to extend this reasonable allowance to the four-month time period sought by the Crown in Korovchenko. The Crown in Mr. Jacques-Taylor’s case also seeks a four-month COVID allowance.

[39] Newmarket is not the only jurisdiction still experiencing COVID-related backlogs well into 2022 and 2023. In R. v. Toor, 2022 ONCJ 8, at para. 26, Monahan J. concluded that in Brampton “…at least 3.5 months (and maybe more) should be deducted from the 11(b) calculation.” Wright J. noted that in Scarborough there was evidence suggesting COVID had stretched the time-to-trial from 9 months to 12. R. v. Ajgirevitch, 2022 ONCJ 237, at para. 58 In Hamilton Leitch J. concluded that “the pig is still in the python”, determining that three months was a “conservative estimate of Hamilton’s local conditions. R. v. Ivarone, 2023 ONCJ 69, at paras. 4-16.” Downes J. noted that the “ripple effects” of COVID shutdowns were still contributing to an “unprecedented strain” on the ability of courts to “keep up” with the prompt scheduling of cases. R. v. Balasubramaniam, [2023] O.J. No. 218 (C.J.), at para. 5.

[40] The defence concedes that at least some of the delay experienced in this case is because of the ongoing COVID backlog; however, Ms. Lichtman submits that no COVID deductions should be tolerated at this late stage in the pandemic.

[41] The defence argues that the system has an ongoing obligation to work diligently to clear its backlog. No 11(b) allowance should be tolerated for a case, such as this one, which entered the system in November 2021 – over a year after the Ontario Court of Justice had resumed setting out-of-custody trial dates. To extend Dunphy J’s oft-cited analogy: at some point that python is expected to get on with it and finish off the pig. No snake can be left to digest forever.

[42] Though the ONCA has granted trial judges certain latitude in R. v. L.L. to draw on our knowledge of local conditions, I approach this exercise with care. Charter rights are not to be fluidly applied in different ways across Ontario in deference to local conditions. An illegal search in Thunder Bay is no less illegal when executed in Oshawa. An unlawful detention in Hamilton cannot be excused in Sioux St. Marie.

[43] The pandemic impacted every jurisdiction across the province though L.L. is a recognition that the depth of this impact was felt differently at different courthouses. As recently as April of 2023, judges across the Ontario Court of Justice continue to recognize the ongoing impact of the COVID backlog and have adjusted 11(b) timelines accordingly. R. v. Arvin Pherai, unreported decision of Jaffe J., Brampton, April 17, 2023.

[44] In Newmarket the time from set-date to trial date expanded significantly at the height of the pandemic’s impact. Though that time-to-trial has receded somewhat in recent months, it was very much at play on July 6, 2022, when Mr. Jacques-Taylor’s case made its way into the BTSC.

[45] In R. v. Meir I had the opportunity to take a snapshot of the impact of the pandemic on Newmarket’s time-to-trial. Mr. Meir’s case entered the system in April 2020, just weeks after the province-wide courthouse shutdown. At his BTSC appearance, trial dates were being set in approximately eight months. On March 14, 2022, I released reasons for judgment dismissing an 11(b) application brought by Mr. Meir. In those reasons I noted that the eight-month turnaround from BTSC to trial was “near miraculous”, and that, by March of 2022 the time from BTSC to trial had ballooned to 12-14 months. R. v. Meir, [2022] O.J. No. 1177 (OCJ) at para. 51.

[46] This accords closely with the observed reality for Mr. Jacques-Taylor. At the time of his BTSC appearance in July 2022, the first trial dates offered were some 13 months in the future.

[47] As we move further away from the pandemic’s event horizon the ripples caused by COVID-19 on regional differences must necessarily flatten. This is particularly so in the modern post-COVID era where the availability of virtual trials and per-diem judicial reinforcements ease the path to a more equitable redistribution of courthouse resources across the province. The python’s pig is nearly digested with signs of improvement here in Newmarket already apparent. Future 11(b) jurisprudence must reflect this reality.

[48] However, at the moment that Mr. Jacques-Taylor’s case was set for trial back in July of 2022, I find that the COVID-19 backlog added three months to the time-to-trial and this timeframe must therefore be deducted from the 11(b) calculation as a discrete event outside the control of the parties and the justice system.

Conclusion

[49] The time from swearing the information to the anticipated conclusion of the trial is 22 months and 2 weeks. From this, I deduct three months to account for the COVID-19 backlog and a further month of defence delay to account for the unavailability of Mr. Jacques-Taylor’s counsel in the month of September when trial dates could otherwise have been set.

[50] I see no basis upon which to conclude that there has been defence delay beyond what I noted above. This brings the period of net delay in this case down to 18 months and 2 weeks, placing it just over the presumptive 18-month Jordan ceiling.

[51] The Crown concedes that there are no exceptional circumstances at play here. Unlike the balancing judges are called upon to perform when conducting a section 24(2) analysis, the seriousness of these firearms charges and the public interest in adjudicating this case on its merits are not factors I am permitted to consider within the 11(b) framework.

[52] This is a borderline case lying very close to the bright 11(b) line drawn by Jordan. Despite the challenges of the COVID backlog and the logistics of managing a multi co-accused case, there were tools available to the Crown which they elected not to utilize. This included the unpalatable option of severing the defendants to ease the scheduling complexity.

[53] A potentially more acceptable solution would have been to prioritize this case over others, either at the BTSC date itself (where it was immediately apparent that the trial was being set outside the 18-month ceiling) or only several weeks later when the defence stated explicitly on the record their intention to bring an 11(b) application.

[54] Prioritization is a zero-sum game for the Crown. Moving this case forward would almost certainly have introduced 11(b) jeopardy into other cases. The task of the Crown in these situations is not an easy one but it is one that often must be made in order to comply with the fundamental constitutional imperative to provide a trial within a reasonable time. There are consequences to the difficult decisions the Crown must make.

[55] Having concluded that the net delay exceeds the presumptively reasonable ceiling, a stay of proceedings is the only remedy available to this court. The charges against Mr. Jacques-Taylor are therefore noted stayed.

Released: June 8, 2023 Signed: Justice Edward Prutschi