ONTARIO COURT OF JUSTICE
DATE: 2023 01 09 COURT FILE No.: 0789669F/70F
BETWEEN:
HIS MAJESTY THE KING RESPONDENT
— AND —
BENJAMIN LAUTERPACHT STEPHANIE LAUTERPACHT APPLICANTS
Before: Justice of the Peace V. Fisher-Grant
Heard on: November 2, 2022 Reasons for Judgment on Motions released on: January 9, 2023
Counsel: Ms. C. Mariuz............................................................................ counsel for the prosecution Mr. Smith, Mr. Olsen.................................................................. agents for the defendants
[ 1 ] Benjamin Lauterpacht and Stephanie Lauterpacht are each charged with violating the Quarantine Act, section 58 by failing to comply with an order prohibiting or subjecting to any condition upon entry to Canada on May 30, 2021.
[ 2 ] The applicants have brought numerous motions in the matter including concerns regarding validity of the legislation, the charging documents, alleging breaches of the Charter, failure of the prosecutor to disclose relevant materials, an application for lost evidence, a motion alleging unreasonable delay that are discussed below. The motions were heard on November 2, 2022, through oral submissions. In advance of the motion hearing the applicants submitted a fifty-page factum and over 1000 pages of materials appended thereto. The respondent provided a factum of fourteen pages and approximately 600 pages of materials appended thereto. The trial is scheduled for half a day on January 31, 2023.
[ 3 ] No evidence was called by the parties although at the end of the day the applicants indicated they may wish to cross-examine the charging provincial offences officer in support of the motions. Given the motion date was set specifically for the Applicants to argue the above issues, and the burden lies on them (as is discussed further below), I decline to allow them to further argue the motions unless indicated herein. The applicants had the benefit of judicial pre-trials and a specific time to bring and argue the motions. They will not be given the opportunity to re-argue their case nor to submit evidence whether by cross-examination or directly when they should have done so initially. They chose to present their application in a particular manner and had the benefit of representation by two agents.
[ 4 ] These reasons deal with the issues that the Court finds are available for pre-trial decision whilst other rulings have been reserved pending completion of the trial proper. I have indicated in each section any issues that can be further raised at trial or will be ruled on at that time.
Applicable Legislation
[ 5 ] Section 58 of the Quarantine Act provides:
Order prohibiting entry into Canada
58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that
(a) there is an outbreak of a communicable disease in the foreign country;
(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.
And further:
71 Every person who contravenes subsection 6(2), 8(1) or 34(2) or (3), section 36 or 38, subsection 42(1), section 45 or 50, subsection 54(3), section 58 or 59 or subsection 73(2) or the regulations is guilty of an offence and liable on summary conviction to a fine of not more than $750,000 or to imprisonment for a term of not more than six months, or to both.
Issue 1: Validity Of The Charging Documents
[ 6 ] The applicants argue that the certificate of offence is defective in that it does not provide a description of the offence sufficient that they can know what they are charged with. They submit that section 58 is a broad and voluminous section of the Quarantine Act that fails to make it clear what they are charged with. They urge the court to quash the certificate of offence pursuant to section 36 of the Provincial Offences Act, “POA”.
[ 7 ] Section 36 of the POA provides that:
(1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
(2) Grounds for quashing – the court shall not quash an information or certificate unless an amendment or particulars under section 33, 34, or 35 would fail to satisfy the ends of justice.
[ 8 ] The certificate of offence, as stated, lists both the short form wording, the Act, and the section number which the applicants are alleged to have violated. There is no defect apparent on the face of the information as all the requisite information is included.
[ 9 ] The applicants have the ability to request particulars of the prosecution to remedy any issue in this regard. For example, in Ontario (Ministry of Transportation) v. Dagmar Construction Inc. the court held that the Justice of the Peace erred by quashing the offence notice since the Crown was ready to supply particulars, and since the defence had not requested particulars before the day of trial.
[ 10 ] The court commented beginning at paragraph 8:
8 On the issue of particulars, it seems to me that the certificate of offence was complete and regular on its face, … which showed that the regulations provided for short form types of description of the charge, "improper tires" being a proper, according to the regulations, short form to specify the charge.
9 While when one examines further into the regulations to determine what is involved in an offence of improper tires, there are a number of possible offences set out in the particular section, and therefore there is a reasonable basis for suggesting that there was a certain vagueness to the charge.
10 The proper procedure, in my view, that the justice of the peace ought to have adopted was to make an order to the Crown to provide the particulars, and he should have made that order. I think he allowed himself to be overly concerned with the issue of delay. …
12 His authority for making an order for particulars is found in s. 35 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which provides that:
o The court may, before or during the trial, if it is satisfied that it is necessary for a fair trial, order that a particular further describing any matter relevant to the proceeding, be furnished to the defendant.
13 The Act further provides in s. 36, sub. 2: The court shall not quash an information or certificate unless an amendment, or particulars under section 33, 34, or 35 would fail to satisfy the ends of justice.
[ 11 ] The applicant had the opportunity to request particulars should they have felt it necessary. The matter was the subject of three pre-trials and an adjourned trial date, they had opportunity to seek a ruling from the presiding judicial officer if needed so that the prosecutor would be ordered to provide same.
[ 12 ] Further, as in Dagmar, wherein the short form wording was used, Schedule XVI to the Quarantine Act provides the short form wording to section 58 as what is written on the certificates of offence in this matter. As such there is no defect on the face of the charging document and section 36 is inapplicable herein.
[ 13 ] The applicant further alleges an additional issue in this regard. They submit that since the charging document is insufficient notice of the charges they cannot understand the actus reus of the offence. The prosecution has provided the disclosure to the applicant. Despite this they assert they cannot glean from it what the offence is. The disclosure was provided in the applicant’s materials for each applicant. There are 28 pages regarding Benjamin Lauterpacht and 21 pages of disclosure related to Stephanie Lauterpacht.
[ 14 ] On page 2 of Benjamin Lauterpacht’s disclosure documents the material provides as follows:
Details of Offence/s:
Section of Quarantine Act: Section 58
Failure to comply with an order prohibiting or subjecting to any condition the entry into Canada
Order in Council in place at the time of the Offence: Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and other Obligations) PC Number: 2021-0421
Link to the Order in Council in place at the time of offence [link is included in the materials]
Publications within Canada Gazette: [link provided but not reproduced herein]
[ 15 ] Then the materials continue as follows:
Section of the Order in Council applicable to the offence: [emphasis added]
PART 3
Suitable Quarantine Plan and other measures
Evidence of Prepaid Accommodation
3.3(1) every person who enters Canada by aircraft must, before boarding the aircraft for the flight to Canada,
(a) provide to the Minister of Health, screening office or quarantine officer evidence of prepaid accommodation that enables the person to remain in quarantine at a government-authorized accommodation for a three-day period that begins on the day on which they enter Canada; and
(b) provide evidence of prepaid accommodation by electronic means specified by the Minister of Health, unless they are a member of a class or persons who, as determined by the Minister of Health, are unable to provide the evidence by those electronic means for reason such as a disability, inadequate infrastructure, as service disruption or a natural disaster, in which the evidence must be provided in the form and manner and at the time specified by the Minister of Health.
[ 16 ] The materials disclosed then go on to list the non-application of subsection (1) indicating it “… does not apply to persons referred to in Table 3 of Schedule 2; or (b) a person, who in extraordinary circumstances is released by a quarantine officer….” Table 3 is then reproduced on page 3 of the materials.
[ 17 ] In Stephanie Lauterpacht’s materials there is much the same information, but it differs in material aspects. While the format is the same the section of the order in council applicable to the offence is now listed as “Quarantine of Asymptomatic Persons.” [emphasis added] The section is reproduced in the materials. The disclosure materials indicate the section of the Quarantine Act is section 58. The order in council is listed as are the links provided. There is a title in the materials that reads:
Section relating to the order in council applicable to the offence
And thereafter the disclosure reads:
Quarantine of asymptomatic persons
Requirements – quarantine
4.1(1) every person who enters Canada and who does not exhibit signs and symptoms of COVID-19 must
(a) Subject to paragraph (b) and subsection (5) in the case of a person entering Canada by aircraft, quarantine themselves without delay at a government-authorized accommodation in accordance with the instructions provided by a screening officer or quarantine officer, and remain in quarantine until they receive the result for the COVID-19 molecular test undergone at paragraph 2.3(109a)
[ 18 ] The disclosure then goes on to provide the list of exempted persons.
[ 19 ] The disclosure as referenced in the Applicants’ materials clearly provides what the actus reus of the allegations are. Not only is a section number provided for each applicant, but the section is reproduced in the materials that clearly defines what each applicant is charged with. The area where the section of the order in council is reproduced indicates what is applicable to the offence. This cannot go unnoticed upon review. It is not vague. It is specific to each applicant. Furthermore, links are provided to the Order in Council relevant to the time of the offence. The combination of the certificate of offence and the disclosure provides sufficient information for the applicants to know what they have been charged with. The defense has been provided with what order was alleged to have been breached regarding each applicant. Indeed, the materials specify a differing ground for each of them.
[ 20 ] If it were not clear to the applicants based on these materials, it is and was open to them to request particulars from the prosecution, as discussed above. The defense further suggests that this line of reasoning – reliance on disclosure and provision of particulars “should not stand” and it will essentially cause chaos in the administration of justice. While fundamental justice requires that procedures be fair and allow a person to be informed without unreasonable delay of the specific offence, this has been complied with. The disclosure regarding the offence was provided by the prosecution. The case law contemplates particulars as does the POA. On the record before me the applicants have had the benefit of a facially valid certificate of offence and the disclosure such that they should have been able to make themselves aware of the charges they are facing.
[ 21 ] This ground is dismissed.
Issue 2: Section 58 only empowers making of orders. There is no penalty section / requirement of compliance
[ 22 ] The Contraventions Act, defines contraventions as “offences created by an enactment and [are] designated as a contravention by regulation of the Governor in Council.”
[ 23 ] Section 58 of The Quarantine Act is designated as a contravention in the regulations to the Contraventions Act. Section 58 provides that: “The Governor in Council may make an order prohibiting or subjecting to any condition the entry…” and the short form description in the regulations indicates that a ticket can be issued for a failure to comply with an order prohibiting or subjecting to any condition the entry into Canada”. Section 71 makes it an offence to contravene certain sections of the Act, including section 58.
[ 24 ] Section 58 doesn’t contain any rules of conduct or substantive content of the emergency orders themselves. In interpreting the section then this court notes that it is appropriate to consider the “text, context and purpose” of the legislation. As discussed in Vavilov: “Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. …the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context, and purpose of the provision.”
[ 25 ] The purpose of the Quarantine Act is in Section 4 therein. …” to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases.” The orders in Section 58 thus would have been made to achieve the purpose enumerated in Section 4: to prevent the introduction and spread of the virus into Canada.
[ 26 ] It makes sense that it is not the section 58 order-making authority that alone achieved the purpose, but the content of the order. Section 58 provides both the order making authority but provides the mechanism to achieve the purpose in Section 4; controlling disease.
[ 27 ] Section 71 is the penalty section. It provides:
71 Every person who contravenes subsection 6(2), 8(1) or 34(2) or (3), section 36 or 38, subsection 42(1), section 45 or 50, subsection 54(3), section 58 or 59 or subsection 73(2) or the regulations is guilty of an offence and liable on summary conviction to a fine of not more than $750,000 or to imprisonment for a term of not more than six months, or to both.
[ 28 ] Section 71 includes section 58 as a section that can be violated: this cross reference in section 71 of section 58 would not make sense if it were referring to the making of the order rather than the content of the order.
[ 29 ] The sections listed in 71 are all sections which require compliance except 58 and 59 which refers to the authority whereby the obligations are made. It makes little sense that those sections, 58 and 59, would be simply limited to the order making authority and still be referenced in section 71. By limiting same, the orders made under section 58 would have no enforcement manner or “teeth.”
[ 30 ] Therefore, the legislation is drafted to make section 58 a section that can be enforced.
[ 31 ] This ground is not well founded.
Issue 3: Did the Screening Officer have authority to enforce the Quarantine Act?
[ 32 ] The Interpretation Act provides that “… a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing …”. Therefore, the power to act as an enforcement authority as defined in the Contraventions Act can be fulfilled by those with requisite capacity.
[ 33 ] The Quarantine Act provides that the Minister may designate screening officers. The Quarantine Act vis a vis the Interpretation Act and Contraventions Act provides the authority for those designated to issue tickets pursuant to it.
[ 34 ] If there is evidence proffered during the course of the trial, that the involved Screening Officer was duly designated and trained, he or she will have had authority through this mechanism to enforce the Act.
Issue 4: Validity of Sections of the Contraventions Act
[ 35 ] The applicants submit that the Contraventions Act sections 8(1) (d) and 16 are greyed out in the publication. The submit that this would mean those sections have not come into force. Yet, they argued that there are cases that consider these sections which is a recognition that the publication of these sections (as greyed and not in force) is erroneous. They further argue therefore that the court should read in the relevant sections and require compliance with same. Additionally, they submit that the prosecution’s failure to provide copies of the sections so that they can analyze the history of the same is prejudicial to them.
[ 36 ] The applicant has provided two cases which they argue are evidence that the court has considered the two impugned sections.
[ 37 ] Firstly, they cite Castro False v Director of Criminal and Penal Prosecutions. In that matter the court indicates:
[10] In addition, sections 8(1) and 65.1 of the Contraventions Act set out clearly that the Governor in Council may, by regulation, designate as contravention an offence created by an enactment and provide that the laws of a province for the prosecution of provincial offences apply to Tickets. This was done by the Governor in Council on August 1, 1996, in enacting the Enforcement of Certain Acts of Provincial Regulations and the contraventions. It specifies that offences under sections 6 and 33 of the Regulation are "contraventions" and that the Quebec Code of Penal Procedure applies to the prosecution. of offences occurring on its territory since 1 May 1999.
[ 38 ] In reviewing the case of Castro there is no consideration of the subsections of 8(1 )(d) in particular. [emphasis added] The Contraventions Act at section 8(1) provides that:
8 (1) The Governor in Council may, for the purposes of this Act, make regulations
(a) designating as contraventions offences created by any enactment, other than offences for which an offender may be prosecuted only on indictment;
(b) establishing short-form descriptions of contraventions;
(c) establishing, in respect of a contravention, an amount as the amount of the fine for the purposes of proceedings commenced by means of a ticket;
The following provision is not in force.
(d) prescribing the form of tickets and other forms that may be used for the purposes of this Act;
(e) providing for the fees, costs, penalties and other amounts that
(i) shall be imposed in respect of a contravention, or
(ii) may be imposed in respect of a contravention,
in the circumstances prescribed, at any stage of the proceedings; and
(f) prescribing classes of contraventions for the purposes of this Act
[ 39 ] The Court in Castro was considering section 8(1) (a), not 8(1)(d); as indicated in the paragraph above that the Governor in Council may make regulations designating as contraventions offences by any enactment; particularly whether the demerit point system established federally applied to the airport on the landside offences. The argument was surrounding the designation issue as in 8(1)(a), there was no consideration of the prescribing of the form of tickets or other forms. As such, I reject the applicants’ submission; the court did not consider legislation that was not in effect.
[ 40 ] The applicants also suggest that the case of R. v. Island-Sea Marine Ltd. And Higgs, considered and ruled upon arguments stemming from consideration of section 16 of the Contravention Act.
[ 41 ] Section 16 of the Contraventions Act which is not in force as it is greyed out, provides that:
note: Contents of ticket
16 A ticket must be in the form prescribed under paragraph 8(1)(d) and
• (a) contain a statement signed by the enforcement authority certifying, in the case of a ticket served under section 9, that the enforcement authority has reasonable grounds to believe that a contravention has been committed and, in the case of a ticket served under section 12, that the enforcement authority believes from personal knowledge that a contravention has been committed;
• (b) include the short-form description of the contravention established under paragraph 8(1)(b);
• (c) indicate with reasonable precision, having regard to all the circumstances, the time and place at which the contravention was committed;
• (d) set out a total amount equal to
o (i) the amount established under paragraph 8(1)(c) as the amount of the fine, and
o (ii) the fees that are applicable on serving a ticket;
• (e) set out the options the person served with the ticket has in responding to it, the time within which the person must respond and the consequences under section 44 of failing to respond;
• (f) provide an opportunity for the person to indicate in which official language, being the person’s language, the person wishes to be tried;
• (g) provide an opportunity for the person to indicate whether the person is a young person;
• (h) mention that the ticket may be used as the evidence of the enforcement authority; and
• (i) provide an opportunity for the person to indicate whether the attendance of the enforcement authority who completed the ticket is required for the purposes of cross-examination.
[ 42 ] The applicant further suggests that the court in Island-Sea considers section 17 of the act as well, which is also not in force.
[ 43 ] The paragraph in the decision that refers to these sections reads as follows:
[63] In his oral submission on September 22nd, Mr. Johnston argued that a ticket issued under the provisions of the Contraventions Act, R.S.C. 1992, c. 47, s. 16, first had to be issued before the provisions of s. 229(1)(a) of the Act were available. This was a pre-condition to the s. 229 assurance of compliance machinery or option being used. Where no ticket has been issued, this machinery is not available. No such ticket was issued. I confess I had difficulty following this submission when made. Certainly, s. 229(1)(a) makes no express reference to the requirement that a ticket first must issue before the options therein are available. As well, the Contraventions Act seems to set out in s. 17 and the following that there are distinct and different procedures to be followed when a ticket issues as compared to those procedures set out in the Act where an assurance of compliance is agreed to. Mr. Johnston's oral argument on this point seems not to have been repeated in his later written submission
[ 44 ] The Court references an argument made by counsel in the matter. And while the court refers to section 17, it does not rule on the issue per se of section 16. The courts ruling concerned the Shipping Act section. The court notes that it had difficulty following the argument made by the applicant therein and that it was not continued in further submissions.
[ 45 ] There is no ruling or discussion of either section 16 or 17 of the Contraventions Act by the court in Island-Sea such that I can find that that court has relied on the sections to an extent to find that they were either erroneously relied upon or published improperly. In submissions the applicant candidly admitted that those were the only two cases that they found relating to consideration of either 8(1)(d) or section 16. That is exactly the point. There aren’t any cases because those sections are not in force and have not been. This argument is not well founded.
[ 46 ] The applicant goes on to suggest that as Parliament intended the Contraventions Act be the prevailing authority that both the Provincial Offences Act and the Contraventions Act should apply, and compliance should be for both. This argument is non-sensical. The Contraventions Act specifically contemplates a regulatory scheme for dealing with federal legislation by the provinces. To insist compliance with a scheme that is not in force and compliance with two different regimes would result in uncertainty. If there is a provincial scheme available that is what is followed, whilst the federal provisions are available if there is not. Sections 8(1) (d) and 16 relate to each other. It stands to reason if one is not in force the other would not be.
[ 47 ] The applicant suggests that those sections have dates going back to the 1990s, and as such that leads to the conclusion that the sections must be in force because they have been around for a long time and would otherwise have been deleted. This argument is misplaced. Firstly, portions of section 8(1) are in force. Section 8(1) (d) and section 16 are not in force however because there is a provincial ticketing scheme. To suggest that this would have been removed, is speculative. The applicant provided no case law nor authority to suggest that there is a maximum or established time period for removal or amendment.
[ 48 ] Lastly, I see no basis to order the prosecutor to provide legislative history for these sections (or any others). For the reasons set out above, the arguments are speculative and not well-founded. There is no relevance demonstrated to the sections requested and no basis for said orders to be made.
Issue 5: Disclosure of CBSA officer notes
[ 49 ] The applicants submit that the lack of disclosure of CBSA officer notes has impaired their ability to make full answer and defense. The prosecutor has indicated, and the defense accepted in their submissions, that the prosecutor has disclosed what they have. The prosecution cannot disclose what is not in their possession. They have made efforts to ascertain whether same exists.
[ 50 ] At this stage, it does not appear that evidence of a CBSA officer is relevant to these proceedings which are allegations of failing to provide evidence of pre-paid accommodation and quarantining of an asymptomatic person. If further evidence comes to light during the trial proper, I am prepared to re-address the issue.
Issue 6: “Lost evidence” of the videos at Pearson Airport
[ 51 ] There is no clear relevance to the videos requested from the Airport to these proceedings.
[ 52 ] Even when viewed from the perspective of the defense, there is no relevance to videos from the airport to the charges of providing evidence of pre-paid accommodation or quarantining.
[ 53 ] As discussed in R. v. Satkunananthan, the court is to consider the following factors when assessing whether the loss of evidence breaches s. 7:
The crown has an obligation to disclose all relevant information in its possession.
The crown's duty to disclose gives rise to a duty to preserve relevant evidence.
There is no absolute right to have originals of documents produced. If the crown no longer has original documents in its possession, it must explain their absence.
If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
In its determination of whether there is a satisfactory explanation by the crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care should be taken to preserve it.
If the crown does not establish that the [evidence] was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.
In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process if, for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.
In either case, a s. 7 breach because of failure to disclose or an abuse of process, a stay is the appropriate remedy only if it is one of those rare cases that meets the criteria set out in O'Connor.
Even if the crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.
In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
[ 54 ] In this matter, there is no clear evidence that the videos were in the prosecution’s possession. There is no clear relevance to them relating to the charges before the court. Additionally, it has not been demonstrated that the “loss” of the videos is prejudicial to the defense such that full answer and defence cannot be made.
[ 55 ] Moreover, the analysis in the applicants’ factum citing R. v. Sagar is misplaced. The case of Sagar is an 11(b) decision wherein some delay was occasioned by the late or non-disclosure. The court, in comments, was referring to the lack of providing officers notes, and photographs of a crime scene. That type of evidence is clearly relevant first party disclosure. This is different than this matter. The Crown did not dispute in Sagar that the materials were relevant or that they should be disclosed; therein they simply did not disclose them in a timely fashion. This contrasts with this matter where the videos sought from the airport have no apparent relevance.
[ 56 ] However, if further evidence arises during proceedings suggesting relevance, possession of the material by the prosecution, negligence on their behalf or prejudice to the defence such that the foregoing factors are engaged, I will re-address the issue at the end of the trial.
Issue 7: Whether the Emergency Orders In Council Are Ultra Vires
[ 57 ] The applicants argue that the orders under the Act are ultra vires.
[ 58 ] This issue was addressed by Justice of the Peace Quon in Mississauga (City) v Hung, wherein His Worship adopts the reasoning of Compton, J in Spencer v. Canada (Health):
[202] The Applicants in Spencer v. Canada (Minister of Health), also contended that the entry requirements and measures were ultra vires s. 58 of the Quarantine Act because the Administrator-in-Council had acted beyond its authority in promulgating the impugned entry requirements and measures, since there is no evidence that the Administrator-in-Council considered the potential existence of reasonable alternatives nor evidence that the Administrator-in-Council had reached the opinion that there were none.
[203] Crampton C.J. in Spencer v. Canada (Minister of Health) disagreed with the Applicants and held at paras. 233, 235, 239, 246, and 249 to 251, that the Administrator-in-Council did in fact reach the opinion that no reasonable alternatives to prevent the introduction or spread of COVID-19 were available, which Crampton C.J. had based on the recitals to the February 2021 Emergency Order, the Explanatory Notes that accompanied the February 2021 Emergency Order, and the evidence adduced by the Minister of Health's affiants. As such, Crampton C.J. held that the Emergency Orders containing the impugned entry requirements and measures are not ultra vires the Administrator-in-Council nor arbitrary [emphasis is mine below]:
(a) Are the Impugned Measures Ultra Vires the Quarantine Act?
At its core, the dispute between the parties as to whether the AIC acted beyond its authority in promulgating the Impugned Measures turns on whether the AIC considered the potential existence of reasonable alternatives and then reached the opinion that there were none. The RNN Applicants maintain that there is no evidence that it did either of these things, and that there were in fact such reasonable alternatives. I disagree. ... In this regard, the most relevant aspects of the record include the recitals to the February Order, Explanatory Notes that accompanied that Order, and the evidence adduced by the Respondent's affiants. Those materials reveal that the AIC did in fact reach the opinion that no reasonable alternatives to the Impugned Measures were available to prevent the spread of COVID-19.
The fourth recital to the February Order in which the Impugned Measures are contained specifically states: "And whereas the Administrator in Council is of the opinion that no reasonable alternatives to prevent the introduction or spread of [COVID-19] are available." In addition, Ms. Barton, who is primarily responsible for the development of OICs pursuant to the provisions of the Quarantine Act, stated that the information available at that time "demonstrated that the measures in place since January 7, 2021 were inadequate to prevent or to limit sufficiently the importation of COVID- 19 cases into Canada via aircraft especially in light of the emergence of the VOCs": Barton Affidavit, above, at para 17.
In that same paragraph, she identified that information as follows:
i. "Prior to the [promulgation of the Impugned Measures], asymptomatic travellers entering Canada were able to travel onward via public conveyance which could have included domestic flights;
ii. Data from a testing pilot in Alberta in November and December 2020 demonstrated that approximately 1 to 2% of asymptomatic travellers entering Canada were infected with COVID-19. In other words, for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19 ...; [Ms. Barton subsequently produced other data showing that in January 2021, the number of passengers arriving into Canada by air reached 325,765. In that same month "data on imported cases of COVID-19 demonstrated more than a three-fold increase in the number of affected flights (international flights with confirmed COVID-19 cases on them) from September (131 flights carrying 157 cases) to January (407 flights carrying 698 cases from Jan 1--27): Barton Affidavit, at paras 19 and 20.]
iii. After the implementation of pre-departure testing on January 7, 2021, information from an Ontario pilot program showed that 2.2% of asymptomatic travellers entering Canada were infected with COVID-19 notwithstanding their having had a negative pre-departure test ...;
iv. Data from testing of the travellers on flights from January 10 to 18, 2021 arriving from a country lacking the resources to administer pre-departure tests showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers ...; and
v. Evidence on the increased transmissibility of VOCs suggested that Canada needed to take more precautions at ports of entry to reduce as much as possible the risk of starting new chains of transmission with these variants." ... In summary, contrary to the RNN Applicants' submission, the AIC did in fact reach the opinion that no reasonable alternatives to prevent the introduction or spread of COVID-19 were available. [ emphasis added ] This is clear from the fourth recital to the February Order, reproduced at paragraph 236 above. In this regard, the AIC specifically considered that the measures in force prior to the promulgation of the Impugned Measures were not sufficient to address the risk posed by COVID-19. This is plainly apparent from the excerpt of the Explanatory Notes to the February Order, reproduced at paragraph 238 above. Finally, approaches adopted by other countries were considered.
Given all of the foregoing, I conclude that the Orders containing the Impugned Measures are not ultra vires the AIC. The record as a whole reveals that the AIC did in fact reach the opinion that no reasonable alternatives to prevent the introduction or spread of COVID-19 in Canada were available. That opinion is entitled to some deference, particularly given that paragraph 58(1)(d) enables the AIC to exercise the emergency powers provided for in subsection 58(1) when it is of the opinion that the conditions described in paragraphs (a) -- (d) are met. So long as there is a reasonable basis in the record to support that opinion, it does not matter that others, such as the RNN Applicants, may believe or even demonstrate that there was in fact a reasonable alternative available. As it turns out, the alternatives identified by the RNN Applicants were also considered, either explicitly or implicitly. They were not considered to be adequate to prevent the introduction or spread of COVID-19 in Canada.
The RNN Applicants also submit that the Orders containing the Impugned Measures are ultra vires the Quarantine Act because they are arbitrary. For the reasons I have already given at paragraphs 77, 103-122 and 166-179 above, I disagree.
[ 59 ] There is no argument or evidence presented in this case that leads me to accept that this Court should depart from the findings made by these other courts. I adopt these findings and this ground is not well founded.
Issue 8: Do the measures set out in the Orders in Council Violate the Charter?
[ 60 ] The applicant has not led any evidence to support any alleged breaches of the Charter. The burden is on the applicant to establish evidence whereupon the Court can make a finding. The pleadings at paragraphs 169-172, 173, 174-177, 178, 181, 183, 185, 188 make allegations but do not provide any evidence in support and many are speculative.
[ 61 ] The burden to demonstrate a violation of the Charter is on the person(s) claiming a violation. In Ernst v Alberta Energy Regulator: the court held that “[t]he absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position.” In this case, the applicants did not call any evidence, either affidavit or viva voce, on the alleged Charter violations.
[ 62 ] I do not accept that having the applicant’s provide evidence to support their Charter motion results in them needing to incriminate themselves. There needs to be a basis for the application, which they can testify to without query into the charge per se. For example, they allege they were detained and interrogated by Officer Carey. No evidence to support this assertion was proffered by them. Moreover, they could have called Officer Carey as a witness and did not.
[ 63 ] Further, generally the Charter issues raised in the application have been decided in other courts. As discussed by Quon, JP in Hung, supra, paras 110-111:
Crampton C.J. in Spencer v. Canada (Minister of Health) had considered the applications challenging the constitutionality of the entry requirements or measures imposed on travellers returning to Canada from abroad and held at paras. 299 to 307 that the entry requirements or measures in and of themselves, did not violate ss. 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter. However, for one specific applicant, Crampton C.J. did find that the applicant had proven that their right not to be arbitrarily detained or imprisoned under s. 9 and the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right under s. 10(b) of the Charter had been violated because of the entry requirements and measures of the Emergency Order of January 2021, and that those violations of the applicant's rights cannot be demonstrably justified in a free and democratic society. Moreover, Crampton C.J. had concluded that because the border control officials had refused to disclose to the applicant and her spouse the location of the facility to which the applicant was being taken, the applicant’s right under s. 9 of the Charter had been infringed. For the s. 10(b) infringement, Crampton C.J. concluded that because the applicant had been detained the applicant was not properly informed of her right to retain and instruct counsel without delay. In addition, Crampton C.J. reasoned that the ss. 9 and 10(b) violations had pertained to government action or administrative practice, so that the appropriate remedy would lie under s. 24(1) of the Charter, rather than s. 52 of the Constitution Act, 1867. However, Crampton C.J. concluded that no remedy was available for the applicant as the applicant had not given notice of an intention to seek a remedy under section 24(1).
[111] But more significantly, Crampton C.J. had noted that the violations of this particular applicant’s rights, who had been detained under the January 2021 Emergency Order, was subsequently remedied by the changes that were made in the February 2021 Emergency Order and its successors, which had replaced the January 2021 Emergency Order. Moreover, Crampton C.J. also noted that beginning with the Emergency Order of February 2021, the issue with the s. 9 Charter violation was corrected by having travellers, who had been required to stay in a government-approved hotel, book their own reservation at the hotel so that the traveller would know its location.
[ 64 ] These issues have largely been considered and decided by the court in the foregoing cases. The applicant has not proffered any specific evidence in this matter to distinguish their Charter claims from cases on point that have already been decided.
[ 65 ] Despite the lack of evidence proffered in support of their Charter motions, I discuss each of their arguments raised below.
Issue 9: Section 8 of the Charter
[ 66 ] The applicants assert that their right to be secure against unreasonable search or seizure has been violated by the requirement to provide medical information.
[ 67 ] As discussed by the court in R. v. Spencer:
[141] A “seizure” in this context is considered to constitute “the taking of a thing from a person by a public official without that person’s consent” : R v Reeves, 2018 SCC 56 at para 13, citing R v Dyment, [1988] 2 SCR 417 at 431 [Reeves].
[142] However, section 8 is not engaged unless “the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state.” Reeves, above, at para 12, citing R v Cole, 2012 SCC 53 at paras 34 and 36 [Cole]. Moreover, this expectation of privacy must “[occur] in the context of administrative or criminal investigation” : Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 53, quoting S. C. Hutchison, J. C. Morton and M. P. Bury, Search and Seizure Law in Canada (Toronto: Carswell, 1993) (loose-leaf updated 2002, release 2), at pp 2‑5.
[143] To determine whether a claimant has such an expectation of privacy, courts are required to examine “the totality of the circumstances” : Reeves, above, at para 12. The objective reasonableness of a person’s privacy expectations will vary according to whether the search or seizure occurs in the criminal context rather than in an administrative or regulatory context; intrusions by the state that constitute search or seizure in the criminal context may be neither in an administrative context: X (Re), 2017 FC 1047 at para 123.
[144] If section 8 is engaged, the court must then determine whether the seizure was reasonable: Reeves, above, at para 14, citing R v Edwards, [1996] 1 SCR 128 at paras 31 and 45 (5).
[145] A search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable” : Reeves, above, at para 14, citing R v Collins, [1987] 1 SCR 265 at 278.
[ 68 ] The court in Spencer, although dealing with the Quarantine Act, was commenting on the applicants concern regarding seizure of money. In this case, the applicants take issue with the seizure of their medical information. In this matter, when travelers choose to travel, they would need to provide medical information to assess whether they would be required to stay in a quarantine hotel. If they chose to either not provide the information or provided information that raised a concern, they would be sent to the hotel.
[ 69 ] In Spencer the court found that the requirement to stay in a hotel to await a RNA test, did not constitute an administrative or criminal investigation. In this matter, similarly, I find that there is no administrative or criminal investigation. The requirement in these circumstances is to provide information and is much the same as the requirement to provide a passport upon reentry to Canada. It ensures information regarding the type of travel and security concerns are addressed.
[ 70 ] Furthermore, in this case, although neither party addressed the issue in submissions, I find if there was a seizure, it was authorized by law and the manner in which it was carried out was reasonable. The Quarantine Act and its provisions were law for travellers entering Canada. The receipt of minimal information – vaccination status, travel details and contact information was a minimal intrusion particularly in light of the overwhelming public interest in curbing the spread of a global pandemic.
Issue 10: Section 9 of the Charter
[ 71 ] The applicants submit they were unlawfully detained for interrogation by Officer Carey. They have not called any evidence to suggest that they were detained and / or interrogated.
[ 72 ] In Spencer that court analyzed the requirement to stay in a hotel and ultimately concluded that:
[179] In summary, I find that the Impugned Measures, particularly the requirement to stay at a GAA or a DQF, engage the Applicants’ section 9 rights because they result in the detention of non-exempt persons arriving in Canada by air. However, with the exception of Ms. Mathis, the Applicants’ section 9 rights are not contravened because their detention is not arbitrary. This is because (i) the detention is authorized by law (namely, by the same Order(s) in which the Impugned Measures are contained), (ii) the authorizing law itself is not arbitrary, and (iii) the manner in which the detention is carried out is reasonable. Moreover, the Impugned Measures, together with the other documents discussed in the immediately preceding paragraphs above, provide sufficient criteria to guide the exercise of discretion by screening officers and to enable them to make reasonable determinations as between individuals. [emphasis added]
[ 73 ] It appears in this case, that the concern relates to a brief detention upon arrival at the airport to provide screening information, given the dicta in Spencer, on the limited facts available to me I am not prepared to find that if a detention occurred that it was arbitrary.
Issue 11: Section 10 of the Charter
[ 74 ] No evidence was provided regarding this alleged breach by the applicants. They have not established that they were detained and therefore Section 10 was not engaged. Consequently, the informational or implementational requirement of Section 10 was not applicable in the circumstances.
[ 75 ] Application denied.
Issue 12: Section 11(a)
[ 76 ] No evidence regarding the alleged breach was called by the applicants.
[ 77 ] Application denied.
Issue 13: Section 11(d)
[ 78 ] This ground was abandoned by the applicant during the hearing.
Issue 14: 11(e) not to be denied reasonable bail
[ 79 ] The applicant called no evidence regarding this alleged breach. It is unclear to me from what detention they seek to have “bail.” The right to reasonable bail arises as a result of charges. If they were detained because of the Quarantine Act requirements, those requirements are not arbitrary as per Spencer, supra, above. I am not prepared to extend the requirement for bail to these circumstances particularly as the requirements of the Quarantine Act have been found not to be arbitrary.
[ 80 ] Application denied.
Issue 15: Section 11(i) Variation of the offence
[ 81 ] The applicants assert that to prosecute them is a violation of section 11(i) of the Charter which provides for the right to the benefit of lesser punishment if the punishment for an offence is varied between the times of commission and of sentencing. They submit that because the orders are no longer in force, there is no current punishment so they now cannot be punished. This argument is not grounded in statute or common law.
[ 82 ] The punishment of the offense has not been varied. It is the same as it was when the orders were in force. The reason they are no longer in force is because they are not necessary. The inability of the justice system to immediately schedule trials is not only systemic given the demands thereupon, but also due to the pandemic (the very thing that resulted in the impugned orders). This does not mean that the system can no longer prosecute the alleged violations that occurred whilst they were in force. To do so would lead to an illogical result – those charged could simply delay as long as possible in the hopes that the legislation would eventually expire. It would also be unfair to all those charged who had their cases dealt with before they expired.
[ 83 ] Application denied.
Issue 16: Section 15 / whether vaccination status is a Disability
[ 84 ] As discussed in Fraser v Canada, “Ideally, claims of adverse effects discrimination should be supported by evidence about the circumstances of the claimant group and the results produced by the challenged law. However, both kinds of evidence are not always required. In some cases, evidence about a group will show such a strong association with certain traits that the disproportionate impact on members of that group will be apparent and immediate. Similarly, clear and consistent statistical disparities can show a disproportionate impact on members of protected groups”…
[ 85 ] The applicants allege that unvaccinated persons full participation in society has been hindered and they have been disproportionately impacted by their vaccination status. However, no evidence was called to demonstrate the disproportionate impact they claim to have suffered, nor have the applicants provided any evidence regarding their status.
[ 86 ] Moreover, the applicants misconstrue the definition of disability claiming that “any ailment which hinders full participation in society, whether self-inflicted or not, is a disability.” This submission misses the mark. Vaccination status is not an ailment. An ailment is defined as “a bodily disorder or chronic disease.” Vaccination status is neither. It is also not the same as missing a hand, as the applicants suggest which is an immutable characteristic and outside a person’s control. Even if the person cut off their own hand, the fact of same once it is their reality, is out of their control. Vaccination status in all aspects is within a person’s control and as discussed not immutable nor constructively immutable.
[ 87 ] In Lewis v Alberta Health Services, the court commented:
[62] Section 15(1) provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
[63] Under the current two-part test, s 15 is infringed where: 1) the challenged law or government action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and 2) the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage: CP at paras 56, 141; Ontario (Attorney General) v G, 2020 SCC 38 at para 40; Fraser v Canada (Attorney General), 2020 SCC 28 at para 27; Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 at para 22; Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 at para 25; R v Sharma, 2022 SCC 39 at para 28.
[64] Ms. Lewis’ s 15 claim fails on the first part of the test. Any distinction created by the COVID-19 vaccine requirement is not based on an enumerated or analogous ground.
[66] Rather, Ms. Lewis urges this Court to recognize “medical status” as an additional analogous ground under s 15(1) of the Charter. We decline to do so. It is more correct, and precise, to analyze her s 15(1) discrimination claim on the basis of what is actually at issue: “COVID-19 vaccination status”. The COVID-19 vaccine requirement is said to be discriminatory because it treats potential transplant recipients differently depending on whether they consent to receiving a COVID-19 vaccination – denying those who refuse but are otherwise eligible the benefit of having an active status on the Program’s waitlist for transplantation. The impugned requirement is therefore not about “medical status” in any general sense (which covers an almost infinite range of conditions) but rather, pre-transplant “COVID-19 vaccination status”.
[67] The criteria for identifying an analogous ground under s 15(1) of the Charter is a personal characteristic which is either immutable (i.e., cannot be changed) or constructively immutable, that is, “changeable only at unacceptable cost to personal identity”: Corbiere at para 13. The rationale for this standard is set out in Hogg at §55:26:
The primary reason that discrimination on these bases is objectionable is that it is generally morally wrong to disadvantage a person by reason of a personal characteristic that is outside the person's control (as with immutable personal characteristics) or that is central to their personal identity, and therefore changeable only with great personal cost or difficulty (as with constructively immutable personal characteristics). What is objectionable about using such personal characteristics as the basis for legal distinctions is that consequences should normally follow what people do, not who they are. [Emphasis added]
[68] Ms. Lewis’ COVID-19 vaccination status is not who she is. It is not an immutable personal characteristic, nor is it one that is changeable only at unacceptable cost to personal identity. Her choice not to get vaccinated against COVID-19 is just that – a choice. And while the decision whether to get a COVID-19 vaccine is personal, it remains fluid, made at a moment in time, based on available information and often in response to specific circumstances and influences. The decision can change, and often does, all with minimal or no cost to personal identity.
[ 88 ] The argument regarding vaccination status of the applicants is not well founded for the reasoning as laid out above. Vaccination status is not interchangeable with “medical status” such that I can find it is an analogous ground of disability. The applicant’s vaccination status is not who they are as persons. I agree with the reasoning that vaccination status is not an immutable personal characteristic. It is a choice and a choice, while personal, that has “minimal to no cost to personal identity.”
Issue 17: 11(b) Delay In Proceedings
[ 89 ] In R. v. Jordan the Supreme Court of Canada established an 18-month ceiling to complete matters before the Ontario Court of Justice. The 18-month ceiling was thereafter affirmed at 18 months for Part I and III matters heard under the Provincial Offences Act.
[ 90 ] The applicants were charged on May 30, 2021. The certificate of offence was filed on June 1, 2021. The matter is scheduled for trial on January 31, 2023. The total time to trial from the date of the charge according to the parties is 19 months and 3 weeks.
[ 91 ] Therefore, the Jordan ceiling will be exceeded in this case by the date of the trial. The delay therefore is presumptively unreasonable. As a result, the burden shifts to the respondent to rebut the presumption of unreasonableness by establishing whether there are exceptional circumstances.
[ 92 ] The Ontario Court of Appeal addressed the steps to be taken when analyzing applications under the Jordan framework as follows:
Calculate the total delay - the period from the charge to the actual or anticipated end of trial.
Subtract defence delay from 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 the Crown 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.
[ 93 ] The total period of delay from the filing of the certificates of offence to the trial date is 609 days or 19 months, 30 days.
[ 94 ] The next step in the analysis per Coulter is to deduct any defense delay.
[ 95 ] On March 25, 22, the parties attended at the anticipated trial date. The matter was adjourned for a Judicial pre-trial to be held 12 June 2022. A second Judicial pretrial was then scheduled for 19 July 2022. Then a third JPT was set for August 16, 2022. It was not until two days before the first trial date, March 23, 2022, that the applicants requested disclosure. Without going into the merits of the disclosure application at this time, it was incumbent on the applicant to request the disclosure in advance of the trial date so that the matter could move forward in a meaningful fashion.
[ 96 ] Pursuant to R. v. Stinchcombe, the prosecutions disclosure obligation is triggered by a request. As discussed in York (Municipality) v. McGuigan, “’[f]irst party disclosure’ refers to information or material the Crown is obliged, on request, to deliver to the defendant without the need for an application to the court.” [emphasis added] The request was not made by the applicants until March 23, 2022, 10 months after the charge, and two days before the trial. While some of the delay between the date of the laying of the charge and receipt of disclosure, including time to request same and retain counsel is naturally encompassed in the 18-month Jordan time frame, a request for disclosure some 10 months after the charge is laid and on the eve of trial, should not fall solely at the feet of the prosecution.
[ 97 ] In this case, after the trial was adjourned, there were judicial pretrials held to facilitate the issues and estimate time for trial. The prosecution submits the first of those dates was not fruitful as the applicant did not advise in advance what the issues were so the pre-trial was not meaningful. The judicial pretrial scheduled for June 21, 2022 was adjourned to July 19, 2022 for another pre-trial. I accept this submission. On August 19, after a third judicial pre-trial, the motion hearing and trial dates were scheduled for November 2, 2022, and January 31, 2023, respectively.
[ 98 ] Had the disclosure request been made in a timely fashion, issues canvassed earlier, an earlier trial date would likely have been available. I deduct one month for the time period between the two pre-trials (June 21-July 19) wherein time could have been better served had meaningful discussions been able to have occurred, and three months reflecting the time period between the adjourned trial date and the first judicial pre-trial (March 23-June 21) as the disclosure request was not timely.
[ 99 ] Moreover, the applicant submits that the trial could not be scheduled due to the delay in providing disclosure. Much of the disclosure requested is not on its face relevant to the charges. The certificate of the officer’s designation is a relevant but minor piece of disclosure that should not have prevented the setting of a trial date.
[ 100 ] The total delay after the defense delay deduction is then 15 months, 30 days. The remaining delay does not exceed the presumptive ceiling.
[ 101 ] I will continue my analysis however to discuss the exceptional circumstance that requires an analysis of the discrete events of the Covid – 19 global pandemic. The pandemic is acknowledged by the parties to be a discrete event. It remains a subject of disagreement as to how much delay can or should be deducted as a result of same.
[ 102 ] During the pandemic much of the world was shut down, including many if not most, court functions. Indeed, the reason for the charges in this matter is as a result of the orders made during the pandemic. Provincial offences trials were adjourned by order of the Chief Justice of the Ontario Court of Justice. The Chief Justice made various orders and directives pursuant to s. 85 of the POA which adjourned all POA trials scheduled from March 16, 2020 to January 22, 2021. On the instruction of the Regional Senior Justice of the Peace of the Central West Region, “RSJP,” made pursuant to s.49(5) of the POA, the Clerk of the Court was instructed to administratively adjourn all matters scheduled in person in POA courts. New dates for these matters would be determined at a later date in consultation with municipal court managers. Approval from the RSJP was given to begin scheduling trials in Mississauga beginning July 14, 2021.
[ 103 ] The further directive of the Chief Justice of the Ontario Court of Justice was that effective April 4, 2022, as a result of the easing of pandemic restrictions, the Chief Justice directed that Provincial Offences Court managers could work with their Regional Senior Justices of the Peace (RSJP) to resume scheduling in-person matters.
[ 104 ] The prosecutor submits that there should be one and a half months of delay deducted from May 31, 2021, to July 14, 2021, the date where the City of Mississauga received the go ahead to beginning to setting trials from the Regional Senior Justice of the Peace. The applicant disagrees that I should deduct any time for courts not being available for sittings.
[ 105 ] In Oshawa (City) v. Amodeo, the court deducted the entire time from the closure of courts to the trial date as part of the delay occasioned by the pandemic. The court reasoned that:
[33] The applicant concedes that the COVID-19 OCJ court closure was a discrete event. The applicant submits that the amount to be deducted from the Jordan framework covers the period from March 16, 2020 (COVID-19 closures) to August 5, 2020 (4.7 months) when OCJ began allowing the continuation of out of custody criminal trials. I disagree. In my view, the entire period, from the March 23, 2020 trial date to the October 18, 2021 appearance should count as delay caused by the discrete event.
[34] The COVID-19 pandemic has caused a sweeping transformation in all aspects of our daily lives. Out of necessity, the justice system has had to transform the way it delivers justice in this province literally overnight. This transformation has required strategic choices and prioritization. … Notwithstanding the remarkable achievements by the justice system and the various stakeholders to pivot to a virtual world in short order, backlogs and scheduling pressures continue to mount as we traverse a 4 th and potentially 5th wave of COVID-19. The pandemic is not over nor is the ripple effect that it has caused. In my view, any delay accumulated from the time when courts were able to start rescheduling trials to the actual trial dates form part of the discrete event. This finding is supported by decisions of the Superior Court and Ontario Court of Justice (R. v. Simmons, 2020 ONSC 7209, Toronto (City) v. Yaqoobi [2021] O.J. No. 6149, Toronto (City) v. Soudine [2021] O.J. No. 4939.)
[ 106 ] In R v. Simmons, supra, Justice Nakatsuru indicated:
[69] First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 – 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 – 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.
[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.
[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region—which has now suspended jury trials again since October 9, 2020—has recently extended the suspension of jury trials to January 4, 2021. In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.
[ 107 ] The pandemic was ongoing between the filing of the certificate and the first trial date. The province was still facing its effects. Although Mississauga was given permission to begin setting trial dates on July 14, 2021, I do not find that this ends the enquiry. The ability to begin setting trial dates, does not take into account the backlog and circumstances of setting dates. As stated by Justice Nakatsuru: “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.”
[ 108 ] While the pandemic cannot be used to justify delay indefinitely particularly as the world opens up and the virus’ effects are mitigated, depending on the circumstances of the case, it may be necessary to deduct significant portions of time that are attributable to the pandemic.
[ 109 ] In Durham (Regional Municipality) v Quezada, Justice of the Peace K. Hunter reasoned:
16 To be clear, in determining the delay attributable to the discrete event, the period from when the trial scheduling process resumed to the date of the first scheduled trial may only be a starting point. The delay caused by the pandemic is arguably longer …
[ 110 ] In this case I accept that there were systemic impacts that affected the setting of the trial date. The municipality undoubtedly is facing a backlog of matters. I have not been provided with any specific evidence in this regard however, in a general sense I find that the backlog caused by court closures did impact all matters in the court. The first trial date scheduled was at a time when Ontario was still being significantly affected by the pandemic. The order by the Chief Justice for in-person attendance at courthouses did not occur until April 2022. I agree with the rationale in the above quoted matters, therefore, I deduct the time period between June 1, 2021, the date the certificate was filed to the date of the first trial, March 25, 2022. That time period is a total of 9 months, 24 days. The total delay then is 6 months and 6 days.
[ 111 ] As 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.
[ 112 ] I do not find that the defense made any attempt to expedite the proceeding nor is this matter taking markedly longer than it should.
[ 113 ] The 11(b) application is dismissed.
Conclusion
[ 114 ] For the foregoing reasons, the matter is remitted to the previously scheduled trial date of January 31, 2023.
Released: January 9, 2023 Justice of the Peace V. Fisher-Grant
[1] It would have been preferrable had the applicant canvassed the length of materials with the judicial pre-trial justice and obtained direction. The applicant submitted in their materials that “… although not explicitly given permission to provide a longer than usual factum, [the defense] is inferring from the fact that this motion is schedule {sic} for a full day, that the usual lengths are, implicitly to be dispensed with. ….” In future, the applicant should seek direction prior to assuming that this is appropriate. No adverse inferences have been drawn in this regard however by this Court.
[2] [1995] O.J. No. 4576
[3] Specifics of the dates are included in the section regarding 11(b)
[4] Tab C and D
[5] There are additional materials also appended at tabs I-J.
[6] Contraventions Regulations, Schedule XVI, item 7
[7] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 118-120
[8] Interpretation Act (RSC 1985, c. i-121), section 24(2)(d)
[9] Ss. 5(1) Quarantine Act
[10] 2018 QCCA 4472
[11] 2010 BCPC 355
[12] Relevance is not assessed from the perspective of the investigators but from the perspective of the potential relevance to the defence: R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.).
[13] R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.).
[14] R. v. Sagar, 2018 ONCJ 144
[15] 2022 ONCJ 429, paras. 202-3
[16] 2021 FC 621
[17] Ernst v Alberta Energy Regulator, 2017 SCC 1 paras 21-22.
[19] 2021 FC 621
[20] See Fraser v. Canada, [SCC] 2020 SCC 28
[21] 2022 ABCA 359:
[22] Lewis, ibid
[23] [2016] S.C.C. 27
[24] See R. v. Nguyen 2020 ONCA 609.
[25] R. v. Coulter 2016 ONCA 704, [2016] O.J. NO. 5005, paras. 34-40
[27] 2018 ONCA 1062 at paras 72-75
[28] The prosecution in its submissions indicated two JPTs were held. The endorsements on the certificate of offence seem to indicate three JPTs were scheduled; June 21, July 19, and August 16, 2022.
[29] See COVID-19: Notice to Counsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice (Revised May 10, 2022) | Ontario Court of Justice (ontariocourts.ca)