Ontario Court of Justice
Date: 2023-10-03 Court File No.: Scarborough 21-30000092
Between:
HIS MAJESTY THE KING
— AND —
CHUNDI DENG
Before: Justice R. Wright
Heard on: September 25, 2023 Reasons for Judgment released on: October 3, 2023
Counsel: P. Kelly, counsel for the Crown P. Lindsay, counsel for the accused Chundi Deng
R. WRIGHT J.:
[1] On December 10, 2021, an Information was sworn charging Chundi Deng with one count of failing to provide a breath sample. A two-day trial was scheduled for September 25 and 26, 2023.
[2] Mr. Deng applied for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms (“Charter”) on the basis that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been violated. On September 25, 2023, following submissions, I advised the parties that I was granting the application and staying proceedings against Mr. Deng with written reasons to follow. These are those reasons.
[3] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice (“OCJ”), not including delay attributable to the defence, beyond which delay will be presumptively unreasonable. I find it helpful to refer to the ceiling and the timeframes in my analysis by days rather than months. That means that there is a ceiling of 547 days, excepting any time that is appropriately deducted due to defence delay.
[4] The total period of time for consideration in this case amounts to 655 days (approximately 21.5 months). The parties depart in argument over three periods:
(1) The period of time after Mr. Deng’s first appearance on January 20, 2022, to Mar. 24, 2022, (one week before the first offered Crown pre-trial date of March 31);
(2) The period of time from April 18 to July 22, 2022, when the Crown submits the Defence should have set a Judicial Pre-Trial (“JPT”);
(3) Whether any time period should be deducted as an exceptional circumstance justifying some delay due to the COVID-19 pandemic.
The Chronology of Events
[5] The total delay from the date the Information was sworn (December 10, 2021) to the anticipated end of Mr. Deng’s trial (September 26, 2023) is 655 days.
[6] Little needs to be said about the procedural history. Mr. Deng’s first appearance was January 20, 2022. He provided his email address in order to access his disclosure electronically, but was not added to the access list until after he contacted the Crown’s office in early February. As of February 7, 2022, he had been provided access to initial disclosure.
[7] Mr. Deng retained counsel March 2, 2022. Counsel immediately requested disclosure from the Crown. Counsel received paper disclosure March 3, 2022. Counsel requested a Crown pre-trial the next day.
[8] At the end of March, after having scheduled a pre-trial, the matter was re-assigned to a different Crown. The pre-trial was delayed. Counsel for the Applicant made six further requests for a Crown pre-trial up to July 15, 2022.
[9] A JPT was conducted Oct. 18, 2022. The trial scheduling conference was held November 16, 2022. Trial dates were scheduled for September 25 and 26, 2022.
The Analytical Framework
[10] The primary purpose of s.11(b) of the Charter is to protect the individual rights of accused persons, namely:
- the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges;
- the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
- the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh.
[11] The secondary purpose of s. 11(b) is to protect the interests of society. This includes seeing that citizens who are accused of crime are treated fairly, and the public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial.
[12] A decision as to whether s.11(b) has been violated “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” that takes a “bird’s eye view” of the proceedings.
[13] In R. v. Jordan, 2016 SCC 27, the Supreme Court provided the framework for assessing an Application under s. 11(b) of the Charter:
A. the total delay from the laying of the charge to the anticipated end of the trial must be calculated.
B. once that period is determined, any delay attributable to the defence must be subtracted to determine the net delay. Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay.
C. where the net delay in the provincial Court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. In general, exceptional circumstances fall into two broad categories: (1) discrete and exceptional events, or (2) particularly complex cases. However, the list of exceptional circumstances is not closed. In addition, the Crown must show that it could not reasonably remedy or prevent the delays from those exceptional circumstances.
D. If the Crown fails to establish both exceptional circumstances existed and that its/the system's response to the circumstances was reasonable, a stay must be entered. If the Crown meets these two hurdles, the Court must calculate the number of months of exceptional delay and subtract that from the remaining delay. If the result is above the 18-month ceiling, the delay is unreasonable, and a stay must be entered.
E. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.
Application of the Framework
A. Total Delay From the Laying of the Charge to the Anticipated End of Trial
[14] The total delay in this case is 655 days.
B. Subtracting Delay Attributable to the Defence
[15] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence.
[16] The Crown submitted that a period of time after Mr. Deng’s first appearance on January 20, 2022, up to March 24, 2022, (one week before the first offered Crown pre-trial date of March 31) should be deducted as defence delay as disclosure had been provided and the Crown was ready to move the matter forward. The Applicant submits that none of this period of time is attributable to the actions of the defence.
[17] The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay. In R. v. Jordan, 2016 SCC 27, the Supreme Court noted at para. 65:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
[18] Once counsel was retained, the Applicant attempted to move the matter forward. However, this is not a case in which counsel had been consulted prior to the first appearance. It took the Applicant until March 2, 2022, to retain counsel. Appreciating that some time is necessary to seek out and retain counsel, I am of the view that a portion of this period needs to be deducted.
[19] This is simply an issue of the defence being unable to benefit from its own delay-making conduct. Having made a first appearance and requested disclosure, the Applicant delayed retaining counsel for 41 days. For a portion of this time, Mr. Deng was not yet in receipt of his disclosure, but by February 7, 2022, the necessary conditions for access to his disclosure were in place. I am not faulting Mr. Deng for the length of time it took him to retain counsel, it is simply that he cannot now benefit from a period of delay that was directly caused by his own conduct.
[20] Of the 41-day period, I would deduct 21 days as delay caused by the defence in retaining counsel. This leaves 634 days to be considered.
[21] The Crown argues that a second period of time in the spring of 2022 is properly considered as defence delay and should be deducted. The period in issue is 80 days from April 18 to July 6, 2022, when the assigned Crown (not Mr. Kelly) suggested that the defence set a JPT even though a Crown pre-trial had not been conducted in order to move the matter forward. The Applicant did not respond in writing to that suggestion until July 6, and the Crown submits that half of this time period (40 days) should be deducted due to neither party moving the matter forward.
[22] I do not accept this argument. While Jordan places a duty on both Crown and Defence to move matters expeditiously to trial (see R. v. Jordan, 2016 SCC 27, at para. 116), and I agree that there may be cases that justify the attribution of defence delay where both parties have allowed a case to languish, this is not such a case.
[23] The Applicant had requested a Crown pre-trial on four occasions prior to April 18. The assigned Crown in correspondence suggested to counsel that a JPT be set, but also indicated that he would telephone counsel (presumably to conduct at least a limited Crown pre-trial). The Crown did not call. The matter appeared in Court two more times prior to July 6. At both appearances, an agent for counsel appeared and indicated that the delay was to conduct the Crown pre-trial. At neither appearance did the Crown make any comment about delay (I note that the Court also should have noticed the delay that was amassing and taken steps). After July 6, counsel wrote to the Crown two more times (July 11 and July 15) requesting a Crown pre-trial.
[24] The Applicant had also not yet received video disclosure. It is understandable that the Applicant would want to raise disclosure issues at a Crown pre-trial prior to scheduling a JPT.
[25] While I appreciate that counsel for the Applicant could have approached this period more diligently, there is nothing that is not legitimate or reasonable in the approach that was taken, and frankly no reason to expect that an attempt at securing a JPT date would have been any more successful than counsel’s attempts at securing a Crown pre-trial were.
[26] I note that the Crown in this jurisdiction has moved to a system of “vertical file management” in which the assigned prosecutor is to conduct every stage of the prosecution from case management through to trial. Much of the delay in this case highlights some of the flaws in that system. The reassignment of this case in March caused delay with the cancellation of a Crown pre-trial. None of the Crowns who addressed the matter in Court through four case management appearances where it was adjourned to conduct the Crown pre-trial addressed delay. No stand-down pre-trials were offered. When there is a period of illness, no one stands in for the assigned Crown. All of these were factors that contributed to the delay in this case. It is incumbent on the Crown to take account of these sorts of factors in setting its processes.
C. Where the net delay in the provincial Court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay
[27] The Respondent submits the impact of COVID-19 on the Courts is an exceptional circumstance that impacted this case. The Respondent points to the impact of the backlog of cases adjourned due to the cancelling of trials and subsequent limited availability of the Courts.
[28] The Applicant argues that the Crown has not shown that any COVID-19 delay should be deducted in this case. In particular, the Applicant argues there is no evidence before me of what the typical pre-pandemic delay was. Further, the Applicant submits there is no evidence that the Crown took steps to try to prioritize this case despite it being set over the Jordan ceiling.
[29] In my view, the Applicant’s argument is too narrow a reading of Jordan. Exceptional circumstances can impact the whole system of cases. They can be causing a delay across the board. It is also not prioritization of a specific case that the Crown needs to establish, but reasonable available steps to avoid and address the problem before the delay exceeded the ceiling:
[69] 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay.
[71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
[30] Numerous Courts have held that the effects of the COVID-19 pandemic constitute exceptional circumstances: R. v. Drummond, 2020 ONSC 5495, at para. 76; R. v. Simmons, 2020 ONSC 7209, at paras 59-60; R. v. Obregon-Castro, 2021 ONSC 1096, at paras. 38-39; R. v. Robinson, 2021 ONSC 2445, at para. 101; R. v. Khan, 2021 ONCJ 195, at paras. 3-15; R. v. Venne, 2021 ONCJ 80, at paras. 22-34; R. v. Korovchenko, 2022 ONCJ 388, at para. 103; R. v. Balasubramaniam, 2023 ONCJ 218; R. v. Agpoon, 2023 ONCA 449 at paras. 21-22.
[31] As Downes J. noted in Balasubramaniam, 2023 ONCJ 218, the wider effect of the pandemic on Court operations cannot be ignored when assessing the delay of an individual case:
[6] As the history of the court's operations referred to the in the Crown's factum at paragraphs 28 to 30 makes clear, any case entering the system after March 2020 was inevitably impacted by the backlog of adjourned cases that had accumulated as a result of the need to cancel, reduce and reprioritize trial matters already in the system. The challenge in a case such as this one is how to quantify that impact and thus apply any resulting deduction to the overall time for a case to reach its conclusion. The relatively straightforward attribution of time between a trial adjourned after March 2020 and the date it was rescheduled does not apply to a case such as this which entered the system in 2021. See R. v. Simmons 2020 ONSC 7209, R. v. Belzil 2021 ONSC 781 and R v GR 2020 ONCJ 578.
[7] Some discrete administrative procedures which were instituted during the pandemic resulted in delays that did not occur pre-pandemic. I agree with the Crown that one of those was the way in which trial dates were scheduled after a judicial pre-trial was held. Previously, at least in this courthouse, a judicial pre-trial was invariably conducted in person, after which counsel could go a few yards to the trial coordinator's office and schedule the trial dates before going another few yards to speak to the matter in court and put the trial dates on the record. See R v Ruchlewicz 2021 ONCJ 538; R v Hamidi Unreported Jan 7, 2022.
[8] A number of consequences flowed from the need for physical distancing, the widespread and continuing practice of staff working from home and the demands placed on trial coordinators who are now faced with rescheduling hundreds of adjourned trials as well as scheduling newly arrived ones.
[9] The demand for JPTs increased as cases adjourned during the pandemic were pre-tried again to see if they could be resolved and to address issues such as the mode of proceeding or whether the time estimate had changed as a result of proceeding remotely. All JPTs became virtual, first by telephone and then in 2022 here, by Zoom, a practice which will almost surely continue beyond the pandemic. The excess demands on trial coordinators meant that virtual trial scheduling meetings had to be booked between trial coordinators and counsel.
[10] At the same time, trial capacity in many courthouses, including this one, was impacted by loss and absences of court staff, directly attributable to the pandemic. Increased staff illness and the simple and understandable inability or unwillingness of staff to continue working in person, which is what court clerks and court reporters were largely required to do throughout, resulted in staff attrition such that to this day in the Metro East and other GTA courthouses, the number of operable trial courts has not returned to its pre-pandemic capacity. Until recently, for example, 20 percent of the available trial courts in this courthouse could not be opened on a daily basis because there simply were not enough court clerks or reporters to adequately staff them. The court services division of the Ministry of the Attorney General is in a seemingly endless cycle of hiring as new people come on and are trained, only to see existing staff leave, sometimes only weeks into starting their new position. This may be a result of factors that go beyond the immediate dynamics of the pandemic, but there can be no question that the impact of the pandemic on workforce expectations, abilities and availability has been felt at the operational level in the courtrooms of the Ontario Court of Justice.
[11] Steps were taken to mitigate some of these impacts. In this courthouse, an additional trial coordinator was hired. The procedure for booking scheduling meetings with the trial coordinator was streamlined to reduce the time between the request for such a meeting and the meeting actually taking place.
[12] More judicial pre-trials were scheduled and a wholesale review by the Crown of cases which could be resolved on more generous terms than they might have been pre-pandemic was undertaken with a view to reducing the number of trials to be scheduled.
[13] It appears obvious to anyone who works in the courts that more Crown prosecutors were hired.
[14] But at the end of the day, it was not and is not the case that court operations are back to normal pre-March 2020 timelines. Some impact on all cases remains from the seismic events that began in March 2020…
[32] COVID-19 cannot be treated like a single event impacting a single discrete case or day of Court. It is not a single closure of a Court or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts. No case is an island.
[33] In Toronto, one of the busiest jurisdictions in the country, the unprecedented restrictions to trial Courts for months over the course of 2020 and into 2021 has and will continue to have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209:
[70] Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 - 84.
[72] Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.
[34] While Nakatsuru J.’s comments are directed to jury trials, there is simply no doubt that the backlog of cases has led to a similar increase in time-to-trial in the OCJ, despite the increased practice of double and triple booking trials in most jurisdictions. This is directly caused by the exceptional circumstances of the COVID-19 pandemic: R. v. Balasubramaniam, 2023 ONCJ 218; R. v. G.S., 2022 ONCJ 427; R. v. Ajgirevitch, 2022 ONCJ 237, at paras. 39-47; R. v. Korovchenko, 2022 ONCJ 388, at para. 103; R. v. Hazizaj, 2022 ONCJ 386, at paras. 17-24, 32-46; R. v. Khan, 2021 ONCJ 195, at paras. 3-15; R. v. Venne, 2021 ONCJ 80, at paras. 22-34; R. v. Hamidi, Scarborough OCJ unreported; R. v. Farooq, Scarborough OCJ, unreported.
[35] In order to qualify as an exceptional circumstance, the Crown must show it could not have reasonably remedied or prevented the delay. The Crown (including the Court) cannot sit idly on their hands when rescheduling the backlog created by COVID-19. The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that reasonable efforts were made to remedy the problems impairing the progress of the case through the justice system and pushing it into the constitutionally intolerable zone of unreasonable delay.
[36] The analysis must include an assessment of whether the Crown, and the criminal justice system, took steps to mitigate the delay. Otherwise, the Crown would be informally relieved of the burden to show that presumptively unreasonable delay truly qualifies as an exceptional circumstance.
[37] In addition to the items referred to by Downes J. in Balasubramaniam, I take notice of the steps taken within the Trial Coordinator's Office to attempt to remedy the delay that has been occasioned by the pandemic by double and triple booking cases. I am further able to consider the significant steps taken by both the Court and the Crown to allow for the hearing of matters during the course of the pandemic, including the creation and use of virtual courtrooms and processes. This is not the Crown idly sitting on their hands in addressing the backlog of cases. These are concrete steps to move all matters in the system forward with as little delay as possible, including Mr. Deng’s.
D. Calculating the Number of Months of Exceptional Delay
[38] I turn then to consider the appropriate amount of time that should be deducted due to the impact of the exceptional circumstance of the COVID-19 pandemic.
[39] In my view, the 29-day period of time from when the parties were ready to set a trial date after conducting the JPT to when the trial scheduling conference could be heard is appropriately considered as delay attributed to the exceptional circumstance of the COVID-19 pandemic. Because the parties were not in the courthouse, a system was necessary to allow the Trial Coordinator's Office to receive requests to set trial dates, prioritize those requests, schedule trial conferences, and hold those conferences. This approach was logical, sensible, and effective. The parties were not in the courthouse due directly to public health measures in place to protect everyone's health. Deducting those 29 days leaves 605 days for further consideration.
[40] The Respondent submits that a further period of 40 days should be deducted as delay related to the COVID-19 pandemic. The Respondent submits that the time-to-trial prior to the COVID-19 pandemic in the Scarborough Courthouse was approximately 9 months (see R. v. Ajgirevitch, 2022 ONCJ 237, at paras. 56-59) and that this case, set approximately 10.5 months after the trial scheduling conference, should therefore have 40 days deducted.
[41] As Professor Paciocco explains in Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19, Osgoode Hall Law Journal 57.3 (2021) 853, at 839 https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss3/10, putting a number on “Covid delay” is arguably impossible:
…. systemic mitigation efforts cannot be meaningfully assessed within the Jordan framework. There are overwhelming problems associated with asking judges to scrutinize institutional responses to COVID-19 when adjudicating individual section 11(b) claims, ranging from a lack of data to separation of powers considerations. …
In that article, Professor Paciocco advocates for an alternative s.11(b) remedy of a sentence reduction. She argues that an alternative to a stay is necessary because delay caused by the systemic impacts of the COVID-19 pandemic do not fit squarely into the Jordan framework of analysis.
[42] This difficulty in quantifying the time and assessing what the evidentiary foundation to prove the appropriate time should be is evidenced in the different treatment of systemic COVID-19 delay in the case law. Most Courts have expressly rejected the idea of there simply being a blanket exemption. As noted by Professor Paciocco, a blanket exemption would relieve all participants in the justice system from making best efforts to bring cases to trial in a reasonable time, which is directly contrary to the purpose of Jordan.
[43] In R. v. Jacques-Taylor, [2023] O.J. No. 2617, at para. 49, Prutschi J. deducted three months as attributable to the COVID-19 backlog in the Newmarket Courthouse for a matter that was set down for trial holding that “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.” Prutschi J. was cautious to note:
[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.
[44] In R. v. Balasubramaniam, 2023 ONCJ 218, Downes J. addressed the number of different methods that Courts have used to attempt this quantification:
[15] How does all of this translate into an assessment of how much time should be reasonably attributed to the pandemic in the Jordan analysis? The challenge is how factors that are obvious to any reasonable observer of or participant in the criminal procedures at the provincial court become a supportable basis for deducting time from the Jordan analysis. Some cases have relied on publicly available statistics about time to trial before and after March 2020. Others have relied on evidence from trial coordinators, either directly or indirectly, about the impact of the pandemic on trial scheduling and availability. Others have deducted a set number of days based on particular dates, for example from the first to the second trial.
[16] Until there is appellate guidance on how to assess the impact of the pandemic, it seems to me that there must be some recognition that the approach to the 11 (b) analysis in any particular case must begin with or at least include a trial judge stepping back and taking an overall look at the life of the case and asking the question, which is after all at the heart of the 11(b) right: Was the overall time the case has taken reasonable, seen in light of the multipronged impact of the pandemic and the conduct of the particular case in question?
[45] Taking that approach, he held that the additional 60 days that the case was over the Jordan threshold were reasonable and the application was dismissed. I note that Downes J.’s approach would seem to correspond to the recent direction of the Court of Appeal in R. v. Agpoon, 2023 ONCA 449 discouraging complicated micro-counting.
[46] In R. v. Korovchenko, 2022 ONCJ 388, Henschel J. found that three months was an appropriate amount of time to deduct (including the time for a scheduling conference: I have dealt with that time separately as, in my view, it is more easily quantifiable). She did not have direct evidence of the specific impact on her case:
[103] I agree with the Crown submission that although the Applicant’s trial was not cancelled due to COVID-19, the pandemic nonetheless contributed to delay in this case. I accept that the matter would have proceeded more expeditiously but for the effects of COVID-19. The pandemic has resulted in an increase in backlog and delay in matters being heard, especially in a large and busy jurisdiction such as York Region.
[105] In respect of the period between September 29, 2021, and September 9, 2022, a period of 11 months and 12 days, while it is difficult to quantify the amount of delay attributable to the pandemic, a judge is entitled to consider local circumstances. I am satisfied that the length of time to schedule a simple two-day drinking and driving case has been extended by a minimum of three months because of the pandemic. In the absence of a more fulsome evidentiary record, such as that presented in Ajgirevitch, I am not satisfied that I should deduct the four months proposed by the Crown. The period of three months is likely a modest estimate but, in my view, it is a reasonable allowance. The allowance of three months includes the additional time required for a trial scheduling appearance – a practice adopted to facilitate efficient trial scheduling in York Region in place of in-person attendance at the trial coordinators office – and the additional time required for a matter to be set for trial from the trial scheduling set date.
[47] In R. v. Hazizaj, 2022 ONCJ 386, W.B. Horkins J., deducted approximately seven months of delay for the period of time in which COVID-19 prevented the Courts from offering trial dates to out-of-custody matters (which occurred post-charge in that case). Ultimately, the net delay remained over the presumptive ceiling and charges were stayed.
[48] In R. v. Brown, 2021 ONCJ 663, the Crown proposed attributing the six months during which Court operations were essentially suspended in 2020. Bhabha J. did not adopt that blanket approach because she had evidence that a significant reason for delay in that case was delayed disclosure.
[49] In R. v. Farooq, Scarborough OCJ, unreported, Kelly J. held that 20 days was an appropriate amount to deduct in a case that had commenced in June of 2020, and was set for a six-day trial scheduled to end in April of 2022. He based the 20 days on a consideration of the OCJ statistics for Scarborough covering January 2011 to September 2021, which demonstrated an increase in the average time for cases to be tried.
[50] In R. v. Hamidi, Scarborough OCJ unreported, Chapman J. held that 60 days was a reasonable (though likely modest) amount of time to deduct.
[51] In R. v. Ajgirevitch, 2022 ONCJ 237, I had evidence that the time to trial in the Scarborough Courthouse had expanded from an average of nine months to an average of 12 months between the start of the pandemic and the spring of 2022 (when that application was argued). I concluded that the pandemic was the cause and therefore attributed the difference of three months to that impact.
[52] Courts are understandably struggling with what evidence is necessary to prove the wider impact of the pandemic. But having found that the pandemic is an an exceptional circumstance which had an impact on this case, in my view it would be an absurd result to then fail to deduct any periods of time on the basis that the Crown has not proven the impact to some level of statistical accuracy.
[53] Taking notice of the Court processes in the Scarborough Courthouse, my prior finding in R. v. Ajgirevitch, 2022 ONCJ 237, and the periods of time attributed by Downes, Chapman and Kelly JJ. in the Scarborough Courthouse in other matters, I am of the view that it is appropriate to deduct 40 days. This period of time reflects a realistic estimate of the impact of COVID-19 on the scheduling of trial matters in the Scarborough Courthouse through the fall of 2022, when this case was set down for trial.
[54] Deducting a further 40 days from the total results in 565 days. This remains over the presumptive ceiling.
[55] Taking a step back and considering the overall life of this case, the total delay in this case is not reasonable, even considered in light of the “multipronged impact of the pandemic.”
[56] The Applicant has established a breach of s.11(b) of the Charter and the Application is allowed and the charge against him stayed pursuant to s. 24(1).
Released: October 3, 2023 Signed: Justice R. Wright