Ontario Court of Justice

Date: 2023 06 27 Toronto Region Information #: 21-75001807

BETWEEN:

HIS MAJESTY THE KING

— AND —

ASTRIT SHKURTA

Ruling: s. 11(b) Application

Before: Justice Katrina Mulligan

Heard on: June 9, 2023 Reasons for Judgment released on: June 27, 2023

Counsel: Corie Langdon and Ka Wong, for the Crown A Moustacalis, for the defendant Astrit Shkurta

Mulligan J.:

[1] On Monday April 19, 2021, Mr. Shkurta was charged with assault and assault with a weapon following an incident that is alleged to have occurred on the T.T.C.’s #91 Woodbine bus. The Information relating to these allegations was sworn the same day. Mr. Shkurta’s trial is scheduled to complete on June 30, 2023. He argues that a stay of his charges is required to remedy the breach of his constitutional right to a trial without unreasonable delay.

The Law

[2] Section 11(b) of the Charter of Rights and Freedoms guarantees that any person charged with a criminal offence has the right to a trial within a reasonable time. The framework for assessing whether an accused’s right to a trial within a reasonable time has been infringed is found in the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27. Jordan established presumptive ceilings under which a trial must be completed. For trials that take place in the Ontario Court of Justice, that ceiling is 18-months. In the Superior Court of Justice, the ceiling is 30 months. Cases that extend beyond those established ceilings, the Court held, are presumptively, unreasonably delayed and a stay of charges is the only means available to redress the constitutional infringement.

[3] To determine whether an Applicant’s s. 11(b) Charter rights have been infringed requires a four-step analysis. First the Court must calculate the total delay, defined as the delay between the swearing of the Information and the actual anticipated end of trial. Next the Court must subtract any periods of time that were either waived by the defence or were caused solely or directly by the defence.

[4] The delay remaining is defined as the net delay. If the net delay exceeds the presumptive ceiling the delay is presumptively unreasonable unless the Crown can demonstrate that the case is either particularly complex or that exceptional or discrete circumstances arose that were reasonably unforeseeable or outside the Crown’s control. In order to satisfy this burden, the Crown must show that they took reasonable steps to circumvent and adapt to the problems before the delay exceeded the presumptive ceiling.

The Issues

[5] Both parties agree that the total delay in Mr. Shkruta’s case is one of 802 days. They also agree that the Applicant’s case is by no means complex. The parties differ in their positions with respect to the calculation of defence delay and the presence or lack thereof of exceptional circumstances, specifically:

• The time it took to schedule a Crown Pretrial Hearing (CPT)
• The time it took to schedule a Judicial Pretrial Hearing (JPT)
• The effect of the COVID-19 pandemic on the parties’ ability to schedule a trial date.

Defence Delay

[6] Mr. Shkurta appeared in court via an agent on 19 occasions before his trial date was set. His first court appearance took place on June 3, 2021. His trial date was scheduled at his September 22, 2022, appearance. Between his first appearance and the date at which the trial date was set, the Applicant and the Assistant Crown Attorneys (the Crown) who had carriage of this case participated in what has been formerly described as the “intake process”.

[7] The intake process is made up of the various steps that counsel need to complete to resolve criminal charges be it by trial or otherwise. For example, the Crown needs to supply disclosure to the Applicant, that disclosure needs to be reviewed by both parties, a CPT is required to assess the viability of a case and how it is likely to unfold, in cases such as Mr. Shkurta’s where the trial time is estimated to be a day or longer, a JPT is also required. Thereafter, the parties contact the trial coordinator to find available trial dates which are then set by the Court in a Case Management court.

[8] The first court appearance for those released on Form 9 or Form 10 releases is scheduled far enough in the future to accommodate the provision of substantive disclosure. By so doing, it is hoped that an accused’s initial court appearance will be meaningful and will assist in moving the matter forward. In the Applicant’s case, the 45 days between the date he was released, and his first court appearance allowed for disclosure to be gathered, logged, vetted and made available to him. Ideally, assuming all that takes place, a CPT can be scheduled prior to or at the first appearance and a JPT scheduled thereafter, if required.

[9] In the case before me, disclosure was not substantially completed until August 10, 2021. That was the date on which the complainant’s statement was made available to the Applicant. As such, it is not surprising that at his fourth court appearance on August 12, 2021, the Applicant requested an adjournment in order to review the statement recently received and to schedule a mandatory CPT. The matter was adjourned to September 2, 2021, a suitable period, in the Court’s opinion, to allow for all of that to take place.

[10] There was no evidence tendered as to the reason for the delay in providing the Applicant with what I find to be, the disclosure necessary to conduct a meaningful CPT. Though the Crown asserted that the Applicant was in possession of a police synopsis of the missing statement, there is no way for the Court to know how detailed or accurate that synopsis was being as no evidence was filed on this point. In any event, it is always the best practice to rely on the actual statement of a complainant as opposed to a third party’s summary of same which may or may not be accurate. (see for example R v. Saad Al-Adhami, 2020 ONSC 6421).

[11] Having found that to be the case, on the evidence tendered in this Application, I find that the Applicant should have been in a position to deal meaningfully with his charges at his 5th appearance, that being September 2, 2021, the date the Applicant suggested to the Court. The three weeks that passed between those two appearances certainly appear to have provided enough time for defence to meet with Mr. Shkurta to review the 28-minute video statement and to obtain obstructions from the Applicant’s as to the plea to be entered to the charges he faced.

[12] Unfortunately, that did not happen. The evidence discloses that the statement was not reviewed nor was a CPT requested until approximately 2 months after substantive disclosure was completed. Having made that finding I do note that the Applicant did eventually request by email, that a CPT be scheduled. That email was sent to the assigned Crown on Monday September 20, 2021. In that email the Applicant suggested that a CPT be held “sometime this week”. On Thursday September 23, 2021, the Crown replied that she was available Friday Sept 24, 2021.

[13] In her response to the Applicant’s initial request to schedule a CPT the assigned Crown also provided alternative CPT dates of October 1, 4, 5 and 7, 2021. Despite the fact that the Crown was able to satisfy the Applicant’s request for a CPT “sometime this week”, the Applicant never responded the Crown’s email, and no CPT was scheduled as a result. In fact, it took until October 20, 21, for the Applicant to resurrect his CPT request. In his second CPT request email, he suggested a CPT be scheduled October 28 or 29, 2021. The Crown responded by indicating that November 3,9,10, 16, and 17, 2021 were available CPT dates. The Applicant chose November 17, 2021.

[14] What the email exchanges demonstrate is that, in this case, a CPT could have been and actually was, set up within days of the Applicant’s requests to schedule same. Had the Applicant done what he advised the Court he’d do on August 10, 2021, namely set up a CPT and review the complainant’s video statement in preparation therefore, the matter could have progressed on September 2, 2021. The evidence before me shows however, that as of September 23, 2021, the defence had still not reviewed disclosure.

[15] On November 17, 2021, the CPT was conducted. Being as the trial is currently scheduled for 2 days, a JPT was required thereafter in order to present a judicially approved trial time estimate to the trial coordinator for the purposes of finding available trial dates to put before the Court to be scheduled. No JPT was scheduled however until July 29, 2022.

[16] The only evidence I have of why 8 months passed before a mandatory JPT was scheduled by the Applicant is contained in the transcripts filed in support of this Application. They show that the Applicant and his lawyer lost touch with each other for quite some time. I am aware, based on those same transcripts, that the Applicant’s lawyer was the only person who was able to communicate with the Applicant being as the Applicant’s first language is not English. Since there was no affidavit filed by or on behalf of the Applicant to show otherwise, it appears however, that the delay in setting a JPT was solely as a result of the lack of contact between the Applicant and his counsel and had nothing to do with the Applicant’s inability to speak English. In such circumstances I find that the delays occasioned by the Applicant’s adjournments after the CPT was conducted are purely defence delay.

[17] A JPT was held on September 15, 2022. That date was selected on July 29, 2022, the date a second CPT was conducted. There is no evidence before me that would lead me to find that this additional CPT was required to be conducted before a JPT could be scheduled. I also note that the selection of the JPT date was actually prompted by the Crown. In an email sent to the Applicant by the Crown newly assigned to the Applicant’s case, in which the latter provided the former with the contact information required to conduct the second CPT that the Applicant scheduled, the Crown suggested that dates for a JPT should be discussed being, as in the Crown’s opinion, a JPT would ultimately be required due to the anticipated trial time estimate. She advised the Applicant that there were 12 JPT time slots available starting August 26, through to September 15, 2022. The Applicant selected September 15, 2022. Following the JPT, at the Applicant’s next scheduled court date on September 22, 2022, the Applicant’s trial dates of June 29 and 30, 2023 were scheduled by the Court.

[18] As a result of the parties’ concessions and my findings above I make the following calculations:

Total Delay: 802 days

Defence Delay/Waived Delay: September 2, 2021-October 20, 2021 = 48 days December 16, 2021-August 11, 2022 = 238 days Total = 286 days

Net Delay: 802-286 = 516 days/17 months (16.96 months)

Being as the net delay is under the 18-month ceiling, and in light of my findings as to the amount of defence delay, I find no s.11(b) breach and no need to address “under the ceiling delay”.

Covid-19

[19] Though not necessary to address given that I have found no s.11(b) violation, I will point out that there is no evidence whatsoever that would cause me to find that the pandemic and the administration of justice’s response to it, contributed to any of the delay present in Mr. Shkurta’s case.

[20] Myself and my Ontario Court of Justice judicial colleagues from the former College Park courthouse have variously held that time-to-trial at the former College Park courthouse, pre-pandemic, was somewhere between 9-12 months. (see my ruling in R v Gutnik, 2023 ONCJ 274; Bhabha J in R v Panchal, unreported; and Rutherford J. in R v L.L., 2021 O.J. No. 6963). In the present case, the Applicant’s time to trial, i.e.: the time between the day the date was set and the actual trial date, is 9.2 months which is well within pre-pandemic timelines.

Released: June 27, 2023 Signed: Justice Katrina Mulligan