ONTARIO COURT OF JUSTICE DATE: 2023 10 27 Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
EWAN SMITH
Before Justice R.M. Robinson Heard on 16 October 2023 Reasons for Judgment released on 27 October 2023
Ramandeep Gill.................................................................................. counsel for the Crown Jonah Parkin.................................................................................. counsel for Ewan Smith
ROBINSON J.:
OVERVIEW
[1] Mr. Smith stands charged with a sexual assault that allegedly occurred on 31 December 2020. He was arrested and charged in February 2022. His trial is scheduled to take place on 6, 7 and 8 November 2023. From the date of the swearing of the Information (17 February 2022) to the last anticipated day of trial (8 November 2023), 629 days will have elapsed.
[2] Mr. Smith alleges that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter has been violated. As a remedy, he seeks a stay of proceedings pursuant to section 24(1) of the Charter.
[3] This Application raises two distinct issues:
(1) What period of delay, if any, should be attributed to the defence for failing to schedule a Crown pre-trial sooner?
(2) How much of the delay in setting dates, if any, is attributable to the “discrete event” of COVID-19 to be deducted from the presumptive ceiling?
THE 11(B) ANALYTICAL FRAMEWORK
[4] In 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada developed a revised framework for applying section 11(b) of the Charter. The framework created a presumptive ceiling of 18 months for a trial at the Provincial Court [2] and 30 months for a trial at the Superior Court.
[5] The revised Jordan framework was summarized by the Ontario Court of Appeal as follows in R. v. Coulter, 2016 ONCA 704, at paras 34-40:
- Calculate the Total Delay (the period of time between the swearing of the Information and the anticipated last day of trial).
- Subtract defence delay from the total delay, which results in the “Net Delay”.
- Compare the Net Delay to the presumptive ceiling.
- If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
- Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached.
- If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
- If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[6] The starting point in the present case is the Total Delay of 629 days. The Information was sworn on 17 February 2022 and the last anticipated day of trial is 8 November 2023.
[7] With the above framework in mind, I turn to the distinct issues raised in the present case.
Issue #1: What period of delay, if any, should be attributed to the defence for failing to schedule a Crown pre-trial sooner?
Interpretation of “Defence Delay”
[8] Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence. While waiver can be explicit or implicit, it must be clear and unequivocal. [3]
[9] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay [4]. Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. [5]
[10] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. In Jordan, the Supreme Court of Canada specifically noted that the defence must be allowed preparation time even where the court and the Crown are ready to proceed. [6] As a matter of logic and fairness, a reviewing judge should be hesitant to second-guess such preparation time, provided that it is reasonable.
Disputed Period of Delay
[11] On 27 April 2022, disclosure was released to the defence. On 16 May 2022, the defence emailed the Crown’s office indicating that he was ready to set a Crown pre-trial with the assigned Crown. That same day, the Crown’s office emailed the defence back indicating, “There is no assigned Crown. You may email in to have one any day with the Duty Crown,” and included the email address of the Duty Crown.
[12] On 24 May 2022, Mr. Smith’s matter was back in court. It was apparent that the defence had not reached out to the Duty Crown for a Crown pre-trial. The Crown in court advised that a Crown (Ms. Peterson) had now been assigned to the case. The defence advised that he would send a Crown pre-trial request directly to the assigned Crown. The defence requested that the matter be adjourned to 21 June 2022.
[13] On Mr. Smith’s next court date of 21 June 2022, it was again apparent that the defence had not reached out to Ms. Peterson (or the Duty Crown) for a Crown pre-trial, as he again inquired if there was an assigned Crown. The defence indicated that he had sent a request on 16 May 2022 and another one on 20 June 2022. The defence again advised that he would send a Crown pre-trial request directly to the assigned Crown and requested that the matter be adjourned to 12 July 2022.
[14] A Crown pre-trial was arranged for 28 June 2022 with the assigned Crown. The defence did not call in as required. On 6 July 2022, the defence called the Duty Crown and held a Crown pre-trial.
[15] The Crown submits the entire period from 16 May 2022 to 12 July 2022, calculated at 60 days, should be attributed to defence delay. The Crown relies on the following factors in support of its position:
- The period from 27 April 2022 (when disclosure was provided) to 16 May 2022 (when the defence was ready to conduct a Crown pre-trial) was necessary preparation time that does not count toward defence delay.
- As of 16 May 2022, the defence indicated he was ready to hold a Crown pre-trial. Six minutes after receiving the defence email, the Crown’s office emailed back advising that there was not yet an assigned Crown, but defence counsel could conduct a Crown pre-trial with the Duty Crown any day.
- Between 16 May 2022 and Mr. Smith’s court appearance on 21 June 2022, the defence did nothing to schedule or conduct a Crown pre-trial. The defence appeared to insist on a Crown pre-trial with an assigned Crown, as opposed to the Duty Crown. At the defence request, the matter was adjourned to 12 July 2022 so that the defence could finally schedule a Crown pre-trial.
- A Crown pre-trial was scheduled and missed by the defence on 28 June 2022. On 6 July 2022, the defence held a Crown pre-trial with the Duty Crown, which he could have done as early as 16 May 2022.
- The matter next appeared in court on 12 July 2022, a date that the defence adjourned it to on 21 June 2022 while he was still seeking to conduct a Crown pre-trial.
[16] The defence submits that, between 16 May 2022 to 12 July 2022, 18 days should be attributed to the defence, calculated as follows:
- While the defence could have scheduled a Crown pre-trial sooner, he had scheduling limitations.
- The defence submits that it was reasonable and more desirable for him to want to schedule a Crown pre-trial with an assigned Crown, rather than with a Duty Crown who would not know the file as well.
- The defence does not dispute that he missed the Crown pre-trial on 28 June 2022.
- In total, the defence concedes that the above defence (in)actions should account for 18 days of delay.
[17] I note that no actual details were provided by the defence about his scheduling limitations.
[18] I also note that the defence assertion that he was holding out for a pre-trial with the assigned Crown is undermined by the fact that he ended up conducting a pre-trial with the Duty Crown on 6 July 2022 – something he could have done on 16 May 2022.
[19] In addition, the defence provided no rationale for how he ended up at 18 days of defence delay.
[20] I agree with the Crown that the entire period of delay between 16 May 2022 and 12 July 2022, is properly attributable to defence delay. From my calculations, that period works out to 57 days. None of that time was for the purpose of defence preparation. As of 16 May 2022, the court, the Crown and the defence were ready to proceed, but the defence inaction prevented the matter from proceeding until 12 July 2022.
[21] The Net Delay (Total Delay less defence delay) in this case is, therefore, 572 days, or 18 months and 26 days.
[22] As the Net Delay is above the presumptive ceiling and is presumptively unreasonable, it falls to the Crown to establish exceptional circumstances.
[23] In the present case, the Crown relies on delays caused directly or indirectly by the COVID-19 pandemic as “discrete events” constituting exceptional circumstances. There is no suggestion that this case was particularly complex.
Issue #2: How much of the delay in setting dates, if any, is attributable to the “discrete event” of COVID-19 to be deducted from the presumptive ceiling?
[24] There are three time periods that the Crown submits qualify as “discrete events” related to the COVID-19 pandemic, namely:
(1) From 12 July 2022 (when the defence contacted the Trial Coordinator to book a judicial pre-trial) to 19 August 2022 (when the judicial pre-trial took place). [7]
(2) From 22 August 2022 (when defence contacted the Trial Coordinator to get a Blitz Court date, where trial dates are set) to 5 October 2022 (when the matter was in Blitz Court). [8]
(3) From 5 October 2022 (when the trial date was set in Blitz Court) to 8 November 2023 (the last anticipated date of trial) was 13 months. The Crown submits that 90 days should be deducted, as it used to take approximately 10 months to schedule a trial pre-COVID-19.
[25] Based on the above calculations, the Crown submits that in total 161 days or 5 months and 11 days should be deducted as exceptional circumstances attributable to the discrete event of the COVID-19 pandemic.
[26] The defence submits that, absent any concrete evidence in support of the actual impact of the COVID-19 pandemic on court delays, there should be no deduction for exceptional circumstances attributable to the pandemic as a discrete event.
Law and Analysis
[27] In Jordan, the Supreme Court of Canada stated, “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.” [9]
[28] That the onset of the COVID-19 pandemic in March 2020 was unforeseen and unavoidable is clear. Thus, it appears to be the epitome of a discrete event. “No reasonable person could contend otherwise.” [10]
[29] In Jordan, the Supreme Court of Canada specifically envisioned that medical emergencies could qualify as a discrete exceptional circumstance. [11] In Agpoon, the Ontario Court of Appeal interpreted this to apply to COVID-19: “Although this comment was made in the context of individual medical emergencies, in our view it can be and should be, generalized for the pandemic.” [12]
[30] The immediate chaos brought on by the pandemic cannot be seriously disputed. It included the cancellation of all Ontario Court of Justice trials and preliminary inquiries in March 2020. Thereafter, court operations incrementally resumed in July 2020, starting with the re-scheduling of previously cancelled matters. This had an immediate – and ongoing – impact on new cases entering the system that had to compete with the backlog.
[31] The challenge is attempting to qualify and quantify the ripple effects attributable to the COVID-19 backlog during a particular snapshot in time. In the present case, the snapshot in time begins on 12 July 2022 (when the defence contacted the Trial Coordinator to book a judicial pre-trial), continues on 19 August 2022 (when the defence contacted the Trial Coordinator to schedule a Blitz Court date) and 5 October 2022 (when the trial date was set in Blitz Court) and ends on 8 November 2023 (when the trial is anticipated to conclude).
[32] In this case, no evidence was adduced by the Crown that speaks directly to how the pandemic impacted the setting of various court dates (i.e. a judicial pre-trial, a Blitz Court date and the trial dates).
[33] The defence submits that the Crown’s failure to do so is fatal the Crown’s position. The Crown disagrees.
[34] In Jordan, at para 89, the Supreme Court of Canada specifically recommended that, “In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.”
[35] This reliance on the trial judge’s knowledge of local circumstances was recently endorsed by the Ontario Court of Appeal in Agpoon, at para 26.
[36] In the recent case of R. v. Shawn Zettler, unreported decision of Justice Bergman, OCJ, dated 2 June 2023 [13], my colleague, Justice Bergman, found that he was unable to make meaningful findings about the impact of the pandemic drawing from his own knowledge of the culture at the Newmarket courthouse, as he was recently appointed to Newmarket and had limited knowledge of the culture of the jurisdiction.
[37] While I was appointed to Newmarket at the same time as Justice Bergman, I find that I have sufficient knowledge of the local Newmarket courthouse culture, both from personal experience and from a review of recent, relevant Newmarket s.11(b) caselaw, to allow me to make meaningful findings.
[38] In terms of recent, relevant Newmarket s.11(b) caselaw, R. v. Korovchenko, 2022 ONCJ 388 (a decision by Justice Henschel), R. v. Jacques-Taylor, 2023 ONCJ 243 (a decision by Justice Prutschi) and R. v. Cao, 2022 ONCJ 179 (a decision by Justice Henschel, that was upheld on appeal by Justice Edwards in R. v. Cao, 2023 ONSC 5884) are particularly helpful.
1. The Delay in Scheduling a Judicial Pre-trial
[39] On 12 July 2022, the defence emailed the Trial Coordinator’s office to schedule a judicial pre-trial. On 25 July 2022, the defence sent a follow up email to the Trial Coordinator’s office as no reply had been received. The Trial Coordinator’s office provided a judicial pre-trial date of 19 August 2022.
[40] In R. v. Zettler, Justice Bergman noted that “there is no discernible reason on the record for the 12-day delay in responding to defence counsel’s submission of the…form” and, accordingly, refused to credit that period of time toward pandemic-related delay [14]. However, Justice Bergman was prepared to credit the delay between the follow-up email and the date that was set toward pandemic-related delay.
[41] Of note, however, Justice Bergman was dealing specifically with the setting of a Blitz Court date, not of a judicial pre-trial. He noted that the creation of Blitz Court was a specific Newmarket courthouse response to address the backlog created by the pandemic. [15]
[42] The requirement for a judicial pre-trial to be held before a trial date can be set pre-dated the pandemic by many years and was, therefore, not a Newmarket courthouse response to address the backlog created by the pandemic.
[43] I am, however, satisfied that some delay in setting the judicial pre-trial was attributable to the backlog. As a matter of logic, one of the by-products of more cases congesting the system is delay in having those cases set down for a judicial pre-trial.
[44] With respect to the period from 25 July 2022 (when the defence sent in a follow-up email requesting a judicial pre-trial) to 19 August 2022 (the date of the judicial pre-trial), I am prepared to find that 10 days of those 25 days are deductible as exceptional circumstances attributed to the pandemic.
2. The Delay in Scheduling a Blitz Court Date
[45] On 22 August 2022, defence counsel emailed a Trial Scheduling Form to the Trial Coordinator’s office requesting a Blitz Court date. By email dated 19 September 2022, the Trial Coordinator’s Office responded by providing a Blitz Court date of 5 October 2022. No follow-up email was required prior to 19 September 2022, which is an indication that it simply took the Trial Coordinator’s office that long to address this request because of their immense caseload.
[46] As mentioned above, in Zettler, Justice Bergman found that the entire time period between the defence’s (follow-up) request for a Blitz Court date and the actual Blitz Court date was deductible due to exceptional circumstances created by COVID-19. I see no reason to depart from my colleague’s thoughtful analysis in this regard.
[47] I note that the timelines in Zettler are similar to those in the present case. In Zettler, a Blitz Court date was requested (for the second time) on 26 July 2022 and a date 43 days later (7 September 2022) was provided. In the present case, a Blitz Court date was requested on 22 August 2022 and a date 44 days later (5 October 2022) was provided.
[48] In Cao, Justice Henschel reached a similar conclusion regarding the 3.5 month delay in scheduling a Blitz Court date:
…The trial coordinators office was not conducting business as usual. They were faced with the task of rescheduling hundreds if not thousands of cases through an entirely new system. I accept that the 3.5 months delay between September 18, 2020, and January 14, 2021, is directly attributable to the exceptional circumstances caused by the pandemic. [16]
[49] In upholding Justice Henschel’s decision, Justice Edwards held:
…The trial judge was correct in her conclusion that this three and half month delay was directly attributable to the exceptional circumstances caused by covid. The trial judge was equally correct in her conclusion that the Crown could not be faulted for any failure to mitigate the impact of covid, specifically her conclusion that there was little that any individual Crown could do at the local level to mitigate the delay in a given case. [17]
[50] Despite the logistical nightmare COVID has created for the Trial Coordinators’ office, the above cases demonstrate that the Blitz Court procedure is working - and is becoming more efficient. In September 2020, it took 3.5 months for Mr. Cao’s case to arrive in Blitz court. 11 months later, that delay was shortened to 44 days for Mr. Zettler and Mr. Smith.
[51] I find that the entire 44 day delay between 22 August 2022 (when the defence requested a Blitz Court date) and 5 October 2022 (the Blitz Court date), is deductible as exceptional circumstances attributed to the discrete event of the pandemic.
3. The Delay in Setting a Trial
[52] Much has been written about the unprecedented challenges that the COVID-19 pandemic created for the Ontario Court of Justice in Newmarket and the extraordinary measures employed to tackle those challenges. For example, see the thorough analyses of Justice Henschel in R. v. Korovchenko, 2022 ONCJ 388, at paras 89 to 104, and Justice Prutschi in R. v. Jacques-Taylor, 2023 ONCJ 243, at paras 32 to 48.
[53] In the present case, the trial date was set on 5 October 2022 with dates of 6, 7 and 8 November 2023 selected – approximately 13 months later.
[54] The Crown urges me to find that the 13 month delay was 90 days longer than the pre-COVID-19 delay of 10 months.
[55] The defence again take the position that, absent concrete evidence, I should not attribute any of the 13 month delay to exceptional circumstances.
[56] In Zettler, which involved an anticipated trial conclusion date of 15 September 2023, Justice Bergman declined to deduct any of the delay as there was no evidence of causality before him. He further noted his limited knowledge of the culture at the Newmarket courthouse. [18]
[57] By contrast, in Korovchenko, which involved an anticipated trial conclusion date of 9 September 2022, Justice Henschel concluded that a 90 day deduction “is likely a modest estimate but, in my view, it is a reasonable allowance.” [19]
[58] Likewise, in Jacques-Taylor, which involved an anticipated trial conclusion date of 4 October 2023, Justice Prutschi concluded that “the COVID-19 backlog added three months to the time-to-trial and this timeframe must therefore be deducted from the 11(b) calculations as a discrete event outside the control of the parties and the justice system.” [20]
[59] I have already noted that the creation of Blitz Court was a direct response to the pandemic and found that delays involved in setting a Blitz Court date were attributable to the exceptional circumstances relating to the pandemic. I see no reason to view the delay in setting Mr. Smith’s trial date in a different light.
[60] What, then, is the proper amount of delay to attribute to this discrete event?
[61] I have concluded that it is unnecessary for me to do so, for two reasons.
[62] First, as the Ontario Court of Appeal recently reminded:
We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, “trial judges should not parse each day or month… [b]ut should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91. [21]
[63] Unlike Justice Bergman, I am satisfied that I am sufficiently familiar with the local and systemic circumstances in Newmarket to permit me to conclude that the discrete event of the pandemic caused some of the time-to-trial delay.
[64] Second, given the deductions I have already found, the Remaining Delay in this case falls below the presumptive ceiling.
[65] For the sake of clarity, I have calculated the various periods of delay as follows:
Total Delay 629 days
Defence delay
- 57 days
Net Delay 572 days
Exceptional circumstances • Delay setting a JPT • Delay setting Blitz Court date
- 10 days
- 44 days
Remaining Delay 518 days (17 months and 8 days)
[66] Were I to quantify the delay in setting a trial date that I find is attributable to the pandemic, the Remaining Delay would obviously be further under the presumptive ceiling.
CONCLUSION
[67] The Remaining Delay in this matter is below the presumptive ceiling. The defence has not discharged its onus of establishing that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have.
[68] Accordingly, the application for a stay of proceedings is dismissed.
Released: 27 October 2023 Signed: Justice R.M. Robinson