R. v. Osifo, 2023 ONCJ 416

[1] On March 3, 2022, the Applicant was charged with six firearm related charges, including careless storage and possession of a loaded prohibited firearm in addition to fraud over $5,000 and personation with intent contrary to the Criminal Code.

[2] Members of the Toronto Police Service (TPS) attended the Applicant’s address to execute a search warrant for fraud over, theft of mail, and possession of property-related charges. Once the police entered the home and were stationed outside, it is alleged that Mr. Osifo ran to the backyard and threw a bag containing a firearm over his property fence to the neighbour’s property. Initially, there were two additional accused persons on this matter.

[3] The property offences involved the significant use of a confidential informant in three separate Information to Obtains (“ITOs”).

[4] On September 1, 2023, I ruled that the Applicant’s 11(b) rights were violated and entered a stay of proceedings with reasons to follow. These are those reasons.

Analytical Framework

[5] According to s. 11(b) of the Charter, any person charged with an offence has the right to be tried within a reasonable time. The Supreme Court of Canada has long emphasized the importance of this right, stating in R. v. Jordan, 2016 SCC 27, at para. 19:

[T]he right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim: ‘Justice delayed is justice denied.’ An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.

[6] The Supreme Court has directed that trials in the provincial courts should be held within 18 months.

[7] R. v. Jordan sets out the analytical framework to determine a s. 11(b) violation as does R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433 at paras 34-41:

(1) Calculate the period from the charge to the actual or anticipated end of the trial to determine total delay. (2) Subtract defence delay from the total delay, which leads to the “Net Delay”. Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct. (3) Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice. (4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. (5) The Crown may rebut this presumption if it establishes the presence of exceptional circumstances. Exceptional circumstances may be a discrete event or a particularly complex case. (6) Subtract delay caused by any exceptional discrete events from the Net Delay, leaving the “Remaining Delay”. (7) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the complexity of the case is such that the time the case has taken is justified. (8) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Stays below the ceiling are expected to be rare and limited.

Application to the Present Case

Total Delay

[8] Both parties agree that the delay in this case is calculated from the date of arrest to the last currently scheduled trial date. The earliest anticipated end date of this trial is December 18, 2023, although it is the position of the Defence that a further two days will be required.

[9] The 18-month ceiling for this matter was September 3, 2023. The earliest total time in bringing this case to trial is expected to be approximately 21 months and 16 days (656 days). The time is over the presumptive Jordan ceiling by 3 months and 16 days.

[10] The Applicant submits that his right to a timely trial had been breached and requests a stay of his criminal charges.

[11] Initial dates for motions and trial in this case were identified and agreed by the parties in February of 2023. The first available dates were accepted by defence counsel. The Crown took the position that the Accused lacked standing to bring a Charter Application in respect of the backpack in which the firearm was allegedly located and the Defence was required to litigate this issue as well as an anticipated Garofoli Application prior to trial.

[12] On the thirteenth court appearance on 9th March, 2023, dates were confirmed on the record as follows and the matter was adjourned to July 6, 2023 for a continuing judicial pre-trial;

i. Standing Application to argue s. 8 Charter motion: September 7, 2023; ii. Garofoli: December 4-7, 2023; iii. Trial: January 3-5, 2024

[13] Approximately 4-6 weeks following the setting of the original dates, efforts were made by the Crown to identify and secure earlier dates in this case. On March 31, 2023, the Crown advised the Applicant that the charges against the co-accused in this case were being withdrawn and arranged a meeting with the trial coordinator to try and secure earlier dates.

[14] Defence counsel provided his available dates but indicated that his calendar was heavily booked for the next several months. On April 21, 2023, the Crown suggested moving up the standing application, previously scheduled for September 7, 2023 to May 23, 2023. The Crown also suggested moving the Garofoli dates from December 4-7, 2023 to June 2, June 22, and September 1, 2023. Finally, the Crown offered moving the trial dates from January 3-5, 2024 to November 29-30, 2023. These changes were proposed with the understanding that further dates would be needed for the Garofoli application and the trial.

[15] Defence counsel accepted all of the proposed changes except for the May 23, 2023 date. The Crown passed this information along to the trial coordinator on April 25, 2023. Later that day, defence counsel indicated that he may not be able to prepare materials in time for a June 2, 2023 Application as he was involved in other serious in-custody matters. Counsel suggested vacating the June 2, 2023 date, holding the others, and seeking further dates between June 22, 2023 and November 30, 2023. Defence counsel subsequently took steps to move the judicial pre-trial scheduled for July 6, 2023 to May 30, 2023.

[16] At the May 30, 2023 judicial pre-trial, counsel expressed the belief that the Crown’s position on standing lacked merit and that the scheduled date was unnecessary. Nonetheless, a date was set to argue standing. On June 5, 2023, defence counsel submitted materials for the Standing Application.

[17] On June 12, 2023, an additional date was secured for December 1, 2023. On June 16, 2023, counsel requested an update regarding further dates. The Crown then advised that it would concede the issue of Standing and suggested moving the Garofoli dates to the 22nd June, 2023 instead.

[18] Prior to 12th June, 2023, counsel had not received the Crown’s response to the standing materials that they had filed. Defence counsel advised that he would not be able to utilize the June 22, 2023 date for the s. 8 Charter motion, as six real days’ notice – four juridical days – was insufficient to prepare and file these materials. Defence counsel sought to use the scheduled date of September 1, 2023 for the Garofoli.

[19] The parties attended court on June 22, 2023 and the Crown confirmed it was abandoning its opposition to the issue of Standing and advised that police officers were available to testify if defence counsel was prepared to proceed on this date with the Garofoli. Counsel reiterated his position that it was unreasonable to expect him to prepare for a Garofoli on such short notice. I was the presiding judge on that Application and I declined to order the Defence to proceed with the Garofoli Application on that date.

[20] The matter was then adjourned to September 1, 2023, for the scheduled Garofoli Application and thereafter to the then future trial dates of November 29 - December 1, 2023. In the meantime, Defence counsel filed an 11(b) Application which I heard on August 28, 2023.

Positions of the Parties

[21] The Crown agrees that the delay exceeds the presumptive ceiling and alleges various periods of defence delay as well as seeking to attribute some of the delay to the ripple effects of the Covid pandemic.

[22] The Crown argues that the total period of defence-caused delay is 7 months (214 days) and calculates it as follows:

1. January 5, 2023 – January 24, 2023 (20 days)
2. June 8, 2023 – December 18, 2023 (194 days or 6 months 11 days)

[23] This would result in a net delay of 442 days or approximately 14.53 months (14 months and 15 days).

[24] In the alternative, the following periods (3-5) are also argued by the Crown to be defence delay:

i. June 22, 2023 – September 7, 2023 (78 days, or 2 months, 17 days) ii. December 1, 2023 – December 18, 2023 (18 days) – Defence Unavailable on November 15-16, 2023 offered on July 7, 2023 iii. December 7, 2023 to December 18, 2023 (11 days)

[25] The Crown also proposes that 60 days is a reasonable and appropriate deduction to account for the ripple effects of the COVID-19 pandemic on the delay in this matter and that the pandemic is a discrete event justifying some delay in this case.

Defence

[26] The Applicant disagrees that there is any significant defence delay attributable in this case and submits that there is no evidential basis before the Court to support the attribution of any delay to the Covid pandemic.

Analysis

[27] The two issues on this 11(b) Application are the extent to which any defence caused delay is attributable to the delay in this case and the extent to which there is a basis to conclude that so-called Covid “ripple effects” have adversely impacted this case.

Defence Delay

[28] Following extensive correspondence between the parties with respect to the 3 Informations To Obtain (“ITOs”) in this case, the ITOs were finally uploaded to the Disclosure Hub on 22nd December, 2022. This was critical disclosure whose importance would have been apparent to all concerned from the outset of this case. Despite its absence, Defence counsel continued to assist in moving this matter forward pending receipt of the ITOs. This disclosure was provided to defence almost 9 months following the first appearance of the Accused.

[29] I accept entirely the need for significant care and diligence in the vetting of ITOs using confidential informants. That said, the Crown did not meet with the Affiant until 2nd November, 2022 to initiate the necessary vetting process and it was not until 8 weeks later that the material was finally provided to defence counsel. Despite the significant efforts on the part of the newly assigned Crowns, in my opinion 9 months for the receipt and provision of the ITOs was well in excess of what was reasonably appropriate or necessary in this case.

[30] Defence counsel acknowledges that on 5th January, 2023 the defence misstated in court that the ITO disclosure was not yet available and this led to an adjournment until 24th January, 2023. I find that the 20 days of delay between 5th January, 2023 to 24th January, 2023 clearly lie at the feet of the defence.

[31] Defence counsel was present and ready to proceed on the originally scheduled trial dates of June 14 and 15, 2023. On June 14, 2023, only about 1.5 hours of time was available for the trial due to staff shortages, and June 15, 2023 was cancelled solely as a result of the unavailability of court clerks.

[32] The defence submits that, once a trial date is not used through no fault of the defence, the defence must be reasonably available for new scheduled dates but that requiring perpetual availability is not reasonable.

[33] Defence counsel submits that he was reasonably available, as reflected in the fact that he offered continuation dates that were available to the court, but not available to the Crown, of August 4, 2023 and October 6, 2023. Defence counsel ultimately agreed to continuation dates available to all parties on 29th November, 2023 and 1st December, 2023.

[34] These continuation dates were subsequently vacated at the request of Defence counsel owing to their subsequent unavailability and new continuation dates were set of 11th December, 2023 and 18th December, 2023. I find that the delay of 18 days between the 1st December and 18th December, 2023 is defence delay.

[35] Defence counsel submits that he was otherwise reasonably available, as reflected in the continuation dates set, and therefore no additional delay is properly attributable to the defence.

[36] In R. v. Godin, 2009 SCC 26, the late disclosure of a forensic report required an original trial to be converted into a preliminary inquiry, as a result of which the case was delayed by nine months. The defence was offered an earlier date for continuation, but was unavailable, so a later date was set. The Supreme Court of Canada held that this did not result in a waiver of the delay between the original court date and the continuation dates set. Justice Cromwell stated for the Court at paragraph 23:

“Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion the defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously. I respectfully agree with Glitheroe R.S.J. dissenting in the Court of Appeal, at para. 53, that “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”

[37] In its recent decision in R. v. Hanan, 2023 SCC 12, the Supreme Court of Canada has rejected the view that all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. Côté and Rowe, JJ. writing for the Court stated in that case at paragraph 9:

“Like the majority and the dissent below, we reject the Crown’s proposed “bright line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A. as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66.) Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).”

[38] In the circumstances of this case, I find that there is delay attributable to the defence between 5th January, 2023 - 25th January, 2023 and between 1st December, 2023 to 18th December, 2023. This represents a total of 38 days.

[39] In my view, the defence was otherwise reasonably available throughout the progress of this case and no additional defence delay is attributable to the 3 months and 16 days (or 106 days) of total delay. Continuation dates were only required because the scheduled dates did not occur owing to staff shortages. Defence counsel played an active role in collaborating over the numerous and often last-minute scheduling endeavours in this case.

Covid-19 Pandemic – Exceptional Circumstances

[40] The Crown submits that during the carriage of this case the court system was still dealing with the backlog caused by the COVID-19 pandemic, and that accordingly an exceptional circumstance delay should be applied in this case. The Crown concedes that it is difficult to assess exactly how much time ought to be apportioned to this fact and one that the Supreme Court did not contemplate in Jordan but submits that a deduction of 60 days is appropriate in this case.

[41] While not expressly addressed by the Crown, the record before me demonstrates that a significant part of the delay in this case was as a direct result of a reduction in courtroom availability on the two original trial dates scheduled on 14th and 15th June, 2023 owing to staff shortages. I shall address this issue to the extent that the Crown seeks to rely upon it as a component of its argument with respect to the ripple effects of Covid.

Staff Shortages and Courtroom Unavailability

[42] The continuing and debilitating impacts of staff shortages upon the effective operation of the New Toronto Courthouse have been and extensively addressed by judicial colleagues in recent decisions, including Fraser J. in R. v. C.L., 2023 ONCJ 3913 and Porter J. in R. v. Vorob'eva, 2023 ONCJ 375.

[43] It is well-established that judges may draw on their knowledge of local conditions in evaluating an 11(b) Charter claim. R. v. Jordan, supra, at para 89. This principle has been applied recently in connection with delays caused by the Covid pandemic, R. v. L.L., 2023 ONCA 52 at para 21; R. v. Jaques-Taylor, 2023 ONCJ 243 at paras 37-48; R. v. Desjardins, 2023 ONCJ 244 at para 233.

[44] As a result of the continuing reality we face on a daily basis in in this courthouse, at the time of writing this decision the comments of Fraser J. in R. v. C.L. remain sadly accurate in the case before me.

“ For more than six months leading up to the hearing of this application, staff shortages have wreaked havoc on the orderly conduct of business in the Ontario Court of Justice in Toronto. Hundreds of courtrooms have been closed and countless trials effected… Given how long this has been going on, I cannot see how the issue of staff shortages can be characterized as “reasonably unforeseen or reasonably unavoidable” as directed by the Supreme Court. At a certain point, court closures became the expectation for all concerned; so much so that a procedure developed around it. By the time this trial had to be adjourned, we were long past the point when a shortage of court staff could possibly have taken anyone by surprise. “

[45] In the case before me, for all practical purposes, two full scheduled trial dates were lost on 14th and 15th June as a direct result of court staff shortages. This inevitably required two new and additional dates to be scheduled, adding further to the length of time required to complete this case.

[46] The Crown is responsible for the provision of facilities and staff required to ensure that persons are tried in a reasonable time: R. v. Askov, 1990 SCC 45, [1990] 2 S.C.R. 1199, at p. 1225, R. v. Godin, 2009 SCC 26, at para. 16.

[47] The state bears the responsibility to provide adequate facilities and staff to support the proper administration of justice. This is not a novel concept, R. v. Askov, 1990 SCC 45 at para. 57. As with other cases in this jurisdiction, no rationale has been provided to account for the current catastrophic state of affairs that exists. Furthermore, no evidence is before me to connect these ongoing staffing deficiencies in any way with the lingering effects of Covid.

[48] I find that the delay from June 15, 2023, to the newly required continuation dates of 29th November, 2023 and 1st December, 2023 is solely attributable to the actions of those responsible for the administration of the courts, and therefore is Crown delay. Defence counsel was required to accommodate these new dates through no fault of their own and on top of a predictably busy schedule that had been set for some time. There is no basis for me to attribute any of this delay to defence counsel.

[49] While the individual Crown Attorneys prosecuting this case are not responsible for the adequate resourcing of the courtrooms in this courthouse, the Crown at large is. I do not find that there has been any justification for the staffing deficiencies that have plagued this case along with so many others in this courthouse. I am not satisfied that the Crown has established an exceptional circumstance capable of justifying the delay in this case that would be attributable to the staff shortages.

‘Other’ Covid Ripple Effects

[50] The Crown proposes that 60 days is a reasonable and appropriate attempt to account for the ripple effects of the COVID-19 pandemic on the delay in this matter and is in accordance with Justice Akhtar’s decision in R. v. Meawasige, 2023 ONCJ 2254.

[51] Delay caused by discrete exceptional circumstances is not included in the Jordan ceiling count. Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Providing they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[52] In order to rely on such circumstances, the Crown must show that it took reasonable steps to avoid and address the problem where it was possible to have done so. The Crown need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.

R. v. Jordan, supra, at paras. 69-71 R. v. Cody, 2017 SCC 31, supra, at paras. 44-46; 48, 54 R. v. McManus, 2017 ONCA 188, [2017] O.J. No. 1372 at paras. 40-46

[53] The Crown rightly submits that the Courts have found in numerous cases that the COVID-19 pandemic constitutes a discrete exceptional circumstance. Reliance on the pandemic as an exceptional circumstance requires, as with any exceptional event, that the Crown has taken reasonable steps to mitigate the delay it caused. I accept entirely that the Crowns’ office eventually took a number of active steps to seek to mitigate delay in this case once it became apparent that this case was at obvious risk of Jordan jeopardy.

[54] These measures included the re-assigning of the case, dedicated Crown resources being allocated, streamlining decisions being made as to the charges faced by Mr. Osifo, the pro-active resolution of the charges faced by his co-accused and attempts to schedule earlier dates for motions and the trial.

[55] The principle trigger for these steps was the unfortunate reality that it took 9 months for the ITOs in this case to be disclosed to defence counsel. As I have indicated previously, the ITO materials were key disclosure in this case and that would have been apparent to all parties from the outset. They were not provided in initial disclosure and no steps were taken to secure them, unseal and vet them until some 5 months after the Applicant’s arrest and only then following repeated requests by defence counsel.

[56] A further 4 months elapsed before the necessarily and appropriately redacted ITOs were provided to defence counsel. In part, this was due to the Crowns following a policy of requiring the consent of counsel for all co-accused to consent to the unsealing of the ITOs, despite this not being a legal requirement.

[57] There is a very significant backlog of cases in the Ontario Court of Justice and it is a problem that currently shows no signs of abating. It is also true that each day new cases enter the criminal justice system and the number of files assigned to individual Assistant Crown Attorneys increases without older files concluding as anticipated. There is little doubt that this increased workload has been accompanied by an increased administrative burden on individual Crown Attorneys. However, this is not a burden that is uniquely borne by Crown Attorneys.

[58] While not raised by the Crown in this case, I would note that the current Vertical File Management (VFM) system that is in place seems to me, in part, to have institutionalized and exacerbated some of these difficulties without bringing any obvious benefits to the timely or efficient progression of criminal cases in our courts.

[59] These problems are further exacerbated by ongoing and long-standing challenges with respect to the receipt of disclosure and the deficiency of the systems that are in place to manage the timely provision of disclosure.

[60] It has become increasingly commonplace for routine, pre-existing, disclosure in criminal cases to take many months to be provided to either Crowns or Defence counsel. This problem is compounded by the fact that typically this material is in existence at the point an Accused is arrested and charged and does not require any further investigative steps to be taken in order to generate it. Simply put, the existing mechanisms for the provision of disclosure are not functioning as intended nor as required. This reality is not a product of the pandemic.

[61] The fact that a pandemic began in March 2020, two years before Mr. Osifo’s alleged offence, does not rebut the presumption of unreasonable delay. In 2021, in the case of R. v. Ali, 2021 ONSC 1230, Somji J. noted that “the suddenness of the pandemic and the complexity of the criminal justice system cannot be relied on indefinitely to justify delay over the presumptive ceiling as an exceptional circumstance.”

[62] By the time Mr. Osifo was charged on March 3, 2022, the courts and other actors in the criminal justice system had had ample time to adapt to the new landscape, and a well-established infrastructure for criminal proceedings in pandemic conditions had developed.

[63] Many people have rightly observed that the pandemic has wrought havoc on the criminal justice system. However, this is not one of those cases.

[64] The Crown must demonstrate that they adopted reasonable measures to mitigate delay and ensure s. 11(b) rights are respected. Where the delay is caused by delay in providing basic disclosure, as in this case, the Crown is not entitled attribute the delay period to COVID.

R. v. Ali, 2021 ONSC 1230, at para 64.

[65] Notwithstanding the steps taken by the Crowns to ameliorate the increasingly apparent delay in this case, there is simply no evidence in this case of any delay attributable to the Covid-19 pandemic or any other exceptional event. While the case before me is a serious case, it is not one that could reasonably be described as particularly complex and the Crown has not sought to argue otherwise.

[66] The delay in this case was triggered by the late provision of key, pre-existing disclosure, namely the ITOs. The facts of this case do not disclose that any delay was caused by the pandemic, but rather, that significant delay was caused by the non-disclosure of the ITOs for a period of approximately nine months. This late disclosure was then compounded by the debilitating impact of court staff shortages. This fatally undermined the timely progression of this case.

[67] Based on the record before me, I am unable to conclude that there is any evidence at all that the COVID pandemic or its lingering effects had an identifiable impact on the scheduling and progress of this case. In my opinion, based on the record before me, no further deduction from the total delay is appropriate due to the impact of the COVID-19 pandemic.

Conclusion

[68] The 18-month ceiling for this matter is September 3, 2023. The earliest total time in bringing this case to trial is 21 months and 16 days (656 days). The time is over the presumptive Jordan ceiling by 3 months and 16 days.

[69] On the record before me and as outlined previously, I find that there is a total delay of 38 days attributable to the defence. Following this deduction, the net delay in this case remains in excess of the presumptive Jordan threshold by some 68 days.

[70] Accordingly, I find a breach of the Applicant’s right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter and the Charges are stayed pursuant to s. 24(1) of the Charter.

Released: 29th September, 2023 Signed: Justice Michael Waby