ONTARIO COURT OF JUSTICE DATE: 2023 01 19 COURT FILE No.: Brampton 3111-998-225600, 225500

BETWEEN:

HIS MAJESTY THE KING

— AND —

RICHARD JAKOVAC and EMILIA GRUYTERS

Before Justice Sandra Caponecchia

11(b) Application Heard December 6, 2022 Reasons for Judgment released on January 19, 2023

S. Karim................................................................................................ counsel for the Crown W. Reid.............................. counsel for the accused Richard Jakovac, Emilia Gruyters

CAPONECCHIA J.:

INTRODUCTION

[1] The defendants are brother and sister. They are charged with assaulting their sister, Susan Laurignano. [1]

[2] The defendants applied for a stay of proceedings pursuant to s. 11(b) of the Charter on December 6, 2022. A trial is scheduled for June 13, and 14, 2023, 17 months and 10 days from the date the Information was sworn to.

CHRONOLOGY

[3] The significant dates are as follows:

(1) January 4, 2022: Information sworn

(2) January 18, 2022: First appearance

• Defence counsel was retained.
• Disclosure was not available.

(3) March 8, 2022: Second appearance

• Defence received disclosure on March 5, 2022.
• Defence adjourned the case in order to conduct a Crown pre-trial on April 28, 2022.
• April 28, 2022 was the first date available for a Crown pre-trial.

(4) May 10, 2022: Third appearance

• Adjourned to set a 2-day trial date through the trial co-ordinator’s office on May 30, 2022.
• May 30, 2022 was the earliest date available for trial scheduling conference with the Trial Co-ordinator’s office.

(5) May 30, 2022: Trial Scheduling Conference with the Trial Co-ordinator

• Trial co-ordinator offered trial dates on June 7-8, 2022, and June 27-28, 2022.
• Dates were declined by the Crown. The defence was available.
• Next available trial dates offered by the Trial Co-ordinator were August 23, and 24, 2023. Both parties agreed.

(6) June 7, 2022: Fourth appearance

• Trial dates put on the record: August 23, 24, 2023.
• The total delay between the day the information was sworn, and the trial date is 19 months, 20 days. The defence puts their Jordan concerns on the record.

(7) October 6, 2022: Defence is in possession of all transcripts and asks the Trial Co-Ordinator for dates to schedule a s. 11(b) Charter application with the assigned trial judge. Defence accepts December 6, 2022.

(8) November 4, 2022: Defence serves an 11(b) application on the court and Crown.

(9) November 17, 2022: The Crown arranges for a meeting with Trial Co-ordinator to canvas earlier dates.

(10) November 22, 2022: New trial dates are secured for June 13-14, 2023. The revised trial date is 17 months and 10 days from the date the information containing the charges was sworn to.

(11) December 6, 2022: 11(b) application argued.

(12) December 16, 2022: The Court invited the parties to re-attend court to make them aware that new additional trial time had recently become available as a result of four judicial vacancies having recently been filled. Additional trial dates were available starting in January 2023. The defence requested the 11(b) application be decided on the existing record before the court. Defence declined an invitation to see if the trial co-ordinator could offer earlier dates given resources had already been used to argue the application.

ANALYSIS

[4] To decide this application, I must follow the framework set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

A. Calculate the Total Delay

[5] A judge is to calculate the total delay, from the date of the charge to the end of the trial.

[6] Both parties agree that the operative time frame in this case for calculating the total delay is between the date the Information was sworn on January 4, 2022, and the revised trial date of June 13 and 14, 2023.

[7] The total delay is 17 months and 10 days.

B. Subtract Defence Delay

[8] Defence delay is subtracted from the total delay. The resulting number is called the net delay. Defence delay is comprised of two components. The first component is delay that is a clear and unequivocal waiver of the accused's section 11(b) rights. The second component is delay caused solely by the conduct of the defence. The calculation of delay is reduced to reflect delay occasioned on account of defence unavailability. This includes when the Court and the Crown are ready to proceed, and the defence is not.

[9] In this case, the Crown submits that 28 days should be deducted as defence delay because on May 10, 2022, no one appeared for the defence and the matter was adjourned with a discretionary bench warrant to June 7, 2022.

[10] I decline to find defence either waived delay, or solely caused the delay for the 28-day period identified by the Crown for the following reason. As of May 10, 2022, a trial scheduling conference was set for May 30, 2022. Therefore, even if defence counsel had attended court on May 10, 2022, the matter would have needed to be adjourned for that meeting to take place. On May 30, 2022, the first trial dates were secured and put on the record on June 7, 2022.

[11] In short, I am satisfied that the delay between May 10, 2022, and June 7, 2022, would have occurred as part of the routine procedure for setting a trial date, irrespective of whether the defence appeared in court on May 10, 2022.

C. Compare Net Delay to Presumptive Ceiling

[12] The net delay, in this case is 17 months and 10 days, below the presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice.

D. Remaining Delay Below Presumptive Ceiling

[13] Where the net delay is less than 18 months, the onus shifts to the defence to demonstrate, on a balance of probabilities, that the delay was nonetheless unreasonable. The defence must establish two things. One, that they took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Two, the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases.

[14] Turning to the first factor. I am satisfied that the defence took meaningful and sustained steps to move the matter forward. The Crown does not suggest otherwise. The history of proceedings speaks for itself: the defence was retained by the first appearance, set a Crown pre-trial immediately after receiving disclosure following the second appearance, and did not delay is scheduling a trial date with the Trial Co-Ordinator after having participated in a Crown pre-trial. On May 30, 2022 the defence was also prepared to accept the first available trial dates offered, a week later and the following month. When the first trial date was scheduled more that 18 months after the Information was sworn to, the defence counsel placed their 11(b) concerns on the record. The defence proceeded to order transcripts and planned their 11(b) application. They did not wait to schedule the 11(b) application 60 days prior to the scheduled trial date, as required by the Rules of the Ontario Court of Justice. They reached out to the Trial Co-ordinators office on October 6, 2022 to obtain a date to schedule the 11(b) motion. Filing the s. 11(b) well in advance of the trial date had the effect of prompting the Crown to book a meeting with the Trial Co-Ordinator and secure a second, earlier trial date, within the 18-month guideline. It is worth noting that had the defence chosen to argue their 11(b) application 60 days in advance of the original trial date, as required by the Rules, the option of the second trial date within 18 months would not have been available.

[15] Turning to the second factor. The defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings. [2]

a) Complexity

[16] This was not a complex case, the Crown does not suggest otherwise. The Crown's case consists of two co-operative adult witnesses, and some medical records. The allegations are neither lengthy, nor complicated. The trial time estimate form indicates the defence contemplated four witnesses in total. There are no Charter or pre-trial applications, no hostile or vulnerable witnesses and no expert evidence.

b) Local Considerations & Steps Taken by the Crown

[17] The Crown submits the case will not take markedly longer than it reasonably should given Peel is still working through a backlog created by the shut down of courts caused by the COVID-19 pandemic. The Crown submits that an allowance should be made for the backlog. The Crown did not identify a specific amount of time that should be considered or deducted.

[18] There is no doubt that this case was scheduled while the backlog created by the shut down of courts was still being felt. There are no statistics or other evidence tendered by either party as to what the state of that backlog was at the time under consideration in this case. This factor is left to be determined by judicial notice or inference.

[19] If the pandemic backlog caused the delay at the relevant time in this case, the court would expect that it would be reflected in the intake phase. I will, therefore, begin with the intake period in this case. The bulk of disclosure was provided by the second set date, and a Crown pre-trial took place on April 28, 2022. All within 4 months of the first appearance. This record does not persuade me that the covid-backlog impacted the intake phase of this case.

[20] On May 6, 2022, the defence requested a meeting with the Trial Co-Ordinator to set a trial date. The meeting was scheduled for May 30, 2022. I would note that prior to the pandemic counsel could have attended at the trial coordinator's office in person immediately following a Crown or judicial pretrial and wait their turn to obtain a trial date. The procedure for setting a trial date was changed during the pandemic. A protocol was instituted when social distancing was recommended. It required counsel to book a virtual meeting with the trial co-ordinator. This remote procedure has continued to be in place even after in-person trials and preliminary hearings resumed at the beginning of 2022. The protocol remained in place on May 6, 2022, when counsel obtained an appointment for May 30, 2022, and was still in place on November 17, 2022 when the revised trial date was chosen. Currently, the protocol for setting a trial date that began during Covid, for health reasons, continues. The procedure appears to now be part of a routine intake procedure for setting a trial date in Peel. In this case it was not argued that any delay in booking a trial scheduling conference in May with the Trial Co-ordinator was affected by the backlog created by Covid, and therefore I decline to so find.

[21] I next turn to the setting of the two trial dates in this case.

(a) May 30, 2022

[22] On May 30, 2022, when the first trial dates were chosen, the courts were opened for in person proceeding, and had been responding to the exigencies of the pandemic for over two years.

[23] On May 30, 2022, the trial co-ordinator offered dates of June 7-8, 2022, and June 27-28, 2022. Both were agreeable to the defence. The Crown declined the dates. June 7-8, 2022, was declined because the Crown was concerned this would not allow sufficient time for subpoenaing the complainant. The June 27-28, 2022, dates were declined for the same reason and because the Officer in Charge was not available.

[24] The next available date offered by the trial co-ordinator and accepted by both parties was 14 months and 25 days later: August 23 and 24, 2023.

(b) November 17, 2022

[25] On November 17, 2022, after the defence notified the Crown that they would be filing an 11(b), the Crown arranged another virtual meeting with the trial coordinator to canvass earlier dates. The earliest date that the assigned justice could be made available was June 13 and 14, 2023. The second trial date is 12 months and 15 days after the parties first met with the Trial Co-Ordinator to set a trial date on May 30, 2022.

[26] The limited available trial dates offered by the Trial Co-ordinator on May 30, 2022, lends support for the Crown's argument that the courts were continuing to work through the backlog of cases brought on by Covid. The revised trial date offered on November 17, 2022, less than seven months away, does not. That said, the evidence in this case is that the second earlier trial dates were not being offered because judicial resources existed to accommodate the trial, but on the basis that this case would be "stacked" on top of an already full court schedule, with the Crown’s agreement.

[27] The backlog resulting from the cancellation of trials and preliminary hearings over the course of multiple months due to Covid is difficult to quantify and cannot be ignored from any assessment as to whether a case under the 18-month ceiling took markedly longer than it should. To date, I continue to witness the ongoing efforts the local Crown's office is making to tackle the backlog, such as authorizing an unprecedented number Highway Traffic Act resolutions in drinking and driving cases and peace bonds in other cases. Even with this and other backlog-reduction initiatives in effect, the second trial date is scheduled 12 and half months after the parties were both ready to set a trial date.

[28] I take judicial notice, as Justice Duncan has, that Peel has a long history of delay, including immediately before the shut down of courts due to the pandemic. [3] Prior to Jordan, 8 – 10 months was considered a guide for tolerable institutional delay in the Ontario Court of Justice. [4] This case exceeds it. Even with the creative and pragmatic resolutions being agreed to everyday by the local Crown’s office for several months, institutional delay is still an issue in Peel. I am not persuaded that the pandemic-backlog is the only factor at play.

[29] When the first and second trial dates were set on May 30, 2022, and November 17, 2022, there were multiple judicial vacancies waiting to be filled in Peel. Retired per diem judges were utilized to fill some of the void during the same time. After four judicial vacancies were filled on November 21, 2022, additional trial dates opened starting in January 2023. These additional trial dates only became available after this application was argued on December 6, 2022. Two criminal judicial vacancies remain unfilled.

[30] I make the following findings based on the totality of the circumstances. One, both the local Crown’s office and the defence could not have done more in this case to ensure that the defendant’s rights were not breached. Second, lack of judicial resources also accounts for the delay in this case. Therefore, even accepting the backlog played some role in the available trial dates in both May 2022 and November 2022, I find that this simple 2-day case still took markedly longer than it should have because of institutional delay caused by a lack of necessary judicial resources at the relevant time period.

[31] I have considered the argument that the system is doing as well as could be expected in getting matters to trial within the presumptive ceiling given the Covid-backlog and there should be little room for a finding of sub-ceiling violation. This argument would carry more weight if there were not a substantial number of judicial vacancies over the relevant time in Peel, a jurisdiction that had delay issues before the pandemic. The argument might also carry more weight if this case was either lengthier, more legally or factually nuanced, or if there was statistical evidence as to the state of the backlog.

[32] In Jordan the Supreme Court of Canada explained that it is no longer a matter of precise calculation when a court decides whether a case has taken markedly longer than it should have. A court should not parse each day or month to determine whether each step was reasonably required. Rather, the exercise requires a trial judge to "step back from the minutiae and adopt a bird's-eye view of the case." [5] When I do so in this case, I am satisfied that it is more probable than not that this factually simple and straightforward 2-day case took markedly longer than it should because of institutional delay due to insufficient judicial resources.

[33] Finally, the Crown relies on the Court of Appeal's statement in R. v. Coulter, 2016 ONCA 704, citing Jordan, that "stays for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases.” [6] I am satisfied this is a clear case.

[34] The defence has discharged their onus.

[35] To be clear, this conclusion is based on my finding that this was a short, legal and factually uncomplicated case. It is not to be taken as a finding that can necessarily be transposed to all other cases. In other cases, such as a longer trial with pre-trial motions, expert evidence, less straightforward facts or vulnerable witnesses, the impact of the pandemic might change what this court considers to be markedly longer. [7] However, none of those consideration apply in this case. There may well also be evidence -- or even a submission -- pointing out a factor in future cases that would persuade me to reach a different conclusion.

Conclusion:

[36] The defendant's right to trial within a reasonable time has been infringed. A stay of proceedings is ordered.

Released: January 19, 2023 Signed: Justice Sandra Caponecchia

[1] A physical altercation is alleged to have taken place at their father's home the night he died, October 12, 2021. Police were called, but apparently did not lay charges after the parties apologized to each other and hugged. On October 19, 2021, Susan Laurignano contacted police to report that she had suffered a non-displaced fracture and requested that charges be laid. The defendants were arrested on November 13, 2021. Mr. Jakovac is charged with assault. Ms. Gruyters is charged with assault bodily harm.

[2] R. v. Jordan, 2016 SCC 27, [2016] SCJ No 27 para. 87, 88.

[3] R. v. Ambrose, 2022 ONSC 4793, para. 10

[4] Jordan, supra 2 at para.52.

[5] Jordan, supra 2 at para. 91.

[6] R. v. Coulter, 2016 ONCA 704, at para. 87.

[7] Some decisions have gone further and considered the impact of the pandemic to constitute a discrete event that extends beyond just that period where the courts were automatically adjourning trials: see for example: R. v. Simmons, 2020 ONSC 7209, at paras. 69-74; R. v. Dumpfrey, 2021 ONSC 7758, at para. 43; R. v. Venne, 2021 ONCJ 80, at para. 34.