Publication Ban Warning
WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
ONTARIO COURT OF JUSTICE
DATE: 2023 11 24 COURT FILE No.: Central East - Newmarket INFORMATION No.: 21-91101130
BETWEEN:
HIS MAJESTY THE KING
— AND —
MANUEL GOMES
Before: Justice M. Townsend
Heard on: October 17, 2023 Reasons for Judgment released on: November 24, 2023
Counsel: A. Pan, counsel for the Crown J. Virk, counsel for the defendant Manuel Gomes
Reasons for Judgment
TOWNSEND J.:
[1] On Friday October 20, 2023, I gave oral reasons granting Mr. Gomes’ Application pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings following a violation of his right to be tried within a reasonable time as guaranteed by s.11(b) of the Charter.
[2] I indicated on that day that written reasons are to follow; these are my reasons.
Overview
[3] On August 9th, 2021, an Information was sworn charging Manuel Gomes with one count of Sexual Assault with respect to the complainant E.V. The offence is alleged to have taken place on July 5th, 2021.
[4] Mr. Gomes was arrested on this Information on November 29th, 2021, at Pearson International Airport in Toronto when he returned from Canada after an extended stay abroad.
[5] The trial in this matter was set for November 1st, 2nd, and 3rd, 2023 in Newmarket.
[6] The total amount of time from the swearing of the Information (August 9th, 2021) up to the final date set for trial (November 3rd, 2023) is 817 days, or 26.8 months inclusive of the end date.
[7] Mr. Gomes has applied for a stay of proceedings under s.24(1) of the Canadian Charter of Rights and Freedoms on the basis that his right to be tried within a reasonable time, as guaranteed by s.11(b) of the Charter, has been violated.
[8] The parties are at odds on this Application with respect to 4 central areas:
When the R. v. Jordan clock starts, and how the time from the date of the swearing of the Information to the time that Mr. Gomes was arrested should be treated;
Whether there is any defence delay in the setting of the judicial pre-trial date because of missing disclosure;
Whether or not there is any defence delay (over and above the already admitted delay) in the attendance at Blitz Trial Scheduling Court and the subsequent acquisition of trial dates; and
Whether or not the effects of the COVID-19 global pandemic ought to be treated as an exceptional circumstance and should be afforded a blanket deduction for things like the time it took to get a JPT date, the time it took to get a Blitz Trial Scheduling Court date, and the time it took to get a 3-day trial.
The 11(b) Analytical Framework
[9] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 the Supreme Court of Canada established the framework to be applied where a breach of s. 11(b) is alleged. This includes a presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice, and 30 months for cases tried in the Superior Court of Justice.
[10] The Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704 at paras 34-41 summarized the steps to be taken in applying the Jordan framework:
Calculate the total delay, which is the period from the charge to the actual or anticipated end 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 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.
[11] If the delay is greater than 18 months, the onus is on the Crown to rebut the presumption of unreasonableness. If the delay is under the presumptive ceiling the burden is on the Applicant to show that the delay is unreasonable. Any delay attributable to the defence, or any delay which has been waived by the defence does not count toward the presumptive ceiling. Any delay attributable to an exceptional circumstance similarly does not count toward the presumptive ceiling.
[12] As Prutschi J. succinctly stated in R. v. Jacques-Taylor, 2023 ONCJ 243: “Jordan was a clarion call from the Supreme Court to all actors within the criminal justice system. It was an explicit directive to jettison the culture of complacency that had infected trial scheduling. The introduction of a presumptive ceiling drew a clear bright line in the hopes of establishing a well-recognized marker for tolerable delay that would vastly simplify the hyper-mathematical battleground upon which previous 11(b) wars had been waged.”
Overview of the Timeline
[13] The parties are not at odds that the primary dates to be considered on this Application are as follows (note: some of the descriptors beside each date are my own):
August 9, 2021 Information Sworn Date
November 29, 2021 Arrest Date
January 2, 2022 First Court Appearance • Waiting for Initial Disclosure, and Designation of Counsel filed
February 1, 2022 Second Court Appearance
March 15, 2022 Third Court Appearance
April 12, 2022 Fourth Court Appearance
May 10, 2022 Fifth Court Appearance
June 2, 2022 Sixth Court Appearance • Judicial Pre-Trial Scheduled
July 12, 2022 Seventh Court Appearance and Judicial Pre-Trial
July 19, 2022 Court Appearance, Information not before the Court
July 21, 2022 Eighth Court Appearance
July 27, 2022 Ninth Court Appearance
August 10, 2022 Tenth Court Appearance
September 8, 2022 Blitz Trial Scheduling Court Date • Did not co ahead, as nobody from defence counsel’s office attended
September 15, 2022 Eleventh Court Appearance
September 29, 2022 Second Blitz Trial Scheduling Court Date • First available trial dates set
September 11, 2023 Trial Confirmation Date
September 15, 2023 Thirteenth Court Appearance • Update on 11(b) Application and express defence delay waiver of 14 days
September 29, 2023 Fourteenth Court Appearance
November 1, 2 and 3, 2023 Trial dates inclusive
Issue #1 – When does the R. v. Jordan clock start ticking, and what is to be done with the time from the swearing of the Information to the time that Mr. Gomes is arrested?
[14] The time in this case between the swearing of the Information and Mr. Gomes’ arrest is rather unique. It is the converse of many of cases which have addressed this issue, wherein an individual is arrested (perhaps at the roadside in an impaired driving investigation) and then an Information is not sworn until months after the arrest.
[15] Ms. V. provided her statement to the police on July 28th, 2021. In that statement, she advised police that she believed that Mr. Gomes was in Portugal. I agree with the Crown's argument that it was incumbent upon the police to investigate this and determine whether nor not this assertion by Ms. V. was in fact true.
[16] The police conducted address checks and attended Mr. Gomes' residence 4 times, all with the intention of arresting Mr. Gomes had he been home. Rather than simply sit around and wait to see if Mr. Gomes returned in short order from Portugal, the police sought a warrant for Mr. Gomes' arrest. The Information was sworn, and the warrant issued on August 9th, 2021.
[17] Mr. Gomes was arrested upon return from Portugal on November 29th, 2021, at Pearson Airport in Toronto. I have no evidentiary basis before me to show that Mr. Gomes was evading Canadian authorities while in Portugal.
[18] I am bound by governing authority from the Supreme Court of Canada, the Ontario Court of Appeal, and am guided by trial decisions in the Ontario and Superior Courts of Justice in this province. Following the overarching direction from those authorities, I find similarly that the Jordan timeline begins in this case at the time that the Information is sworn.
[19] This is consistent with the Supreme Court of Canada’s approach in R. v. Kalanj, [1989] 1 S.C.R. 1594 wherein the majority of the Court stated at paragraph 1607 that s. 11(b) protects a person "charged with an offence".
[20] Further clarification of this proposition is found in other courts in this province; a person is charged when "an information is sworn alleging an offence against him", or when a direct indictment is laid. See: R. v. Medeiros, 2020 ONSC 569, at paras. 9-15; R. v. Lacroix, 2017 ONSC 334, at paras. 36-38 and R. v. Toor, 2022 ONCJ 8, at paras. 13-22.
[21] Henschel J. provides a very thorough review of relevant caselaw discussing the issue of what “charged with an offence” means in the context of calculating a total period of delay in an 11(b) and Jordan context in R. v. Cao, 2022 ONCJ 179 at paragraphs 24-45 (upheld on appeal at 2023 ONSC 5884).
[22] The Ontario Court of Appeal was clear in R. v. E.(K.), 2013 ONCA 175 at paragraph 20: “Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.”
[23] As referenced above however, this case appears to be the converse of many cases in which Courts have sought to determine “when the clock starts”. Here, an Information alleging that Mr. Gomes committed these offences was sworn and laid months before Mr. Gomes was arrested. The police in this case acted, in my view, diligently upon receiving the complaint and the complainant’s statement and swore the Information as soon as they had reasonable grounds to do so. The Information was sworn so that an arrest warrant could be issued for Mr. Gomes upon his return to Canada.
[24] Despite the fact that the Information was laid well before the arrest of Mr. Gomes, I find that the total period of delay at issue on this Application begins from the laying of that Information.
[25] The Supreme Court of Canada in Jordan at paragraph 69, and R. v. Cody, 2017 SCC 31 at paragraphs 45-62, have explained that exceptional circumstances are ones that lie outside the control of the Crown, in that they are reasonably unforeseen or reasonably unavoidable, and are scenarios where Crown counsel cannot reasonably remedy the delays resulting from those circumstances once they arise.
[26] I am prepared to find the 112 days from the time that the information is sworn to the time that Mr. Gomes is arrested can be deducted from the presumptive ceiling as an exceptional circumstance.
[27] There was effort on the part of the police to locate and arrest Mr. Gomes upon hearing from the complainant, and once it was determined that Mr. Gomes was not in the area police fulfilled their duty in swearing an Information within a reasonable time and obtaining an arrest warrant for the accused. Mr. Gomes' continued stay in Portugal prior to his arrest should not, in my opinion, count toward the presumptive ceiling. While I have no evidence before me to indicate that Mr. Gomes’ was evading police while in Portugal, I have no evidence before to indicate that Mr. Gomes was even aware that an Information had been laid.
[28] The police were diligent in swearing the Information, and the delay in Mr. Gomes coming back to Canada from Portugal was unavoidable in these circumstances such that it ought to be defined as an exceptional circumstance.
Issue #2: Whether or not there is any defence delay in the setting of the judicial pre-trial date because of missing disclosure.
[29] There was much miscommunication between defence counsel and the assigned Crown surrounding perceived missing disclosure and the setting of a JPT date. In short, the assigned Crown was under the erroneous legitimate assumption that the accused's statement had been provided, and defence counsel was unhelpful in correspondence with respect to specifying the fact that the accused statement was in fact not yet received by his office.
[30] I heard evidence that on February 9th, 2022, initial disclosure was sent to counsel for Mr. Gomes via the Digital Disclosure Hub, however that digital disclosure was sent to the wrong email address. Counsel for Mr. Gomes sent further requests for initial disclosure, and eventually on February 14th, 2022, initial disclosure was sent to the proper email address of counsel.
[31] On March 11th, 2022, the complainant’s statement was provided to defence.
[32] Over the next 2 months, I heard evidence that there was numerous correspondence between the defence and Crown counsel wherein defence counsel vaguely indicated that they were “awaiting outstanding disclosure” and Crown counsel did not appreciate that some of the disclosure that defence was waiting for (i.e. the statement of the accused) had not been provided to the proper email address in the Digital Disclosure Hub.
[33] On May 16th, 2022, the statement of the accused was provided, and on May 17th, 2022, JPT dates were requested and accepted.
[34] This type of miscommunication is not uncommon. Mistakes happen – Crown counsel thought that disclosure was complete when it was not, and defence counsel did not properly outline the missing disclosure.
[35] I am not, in these circumstances however prepared to attribute any delay in setting the JPT date to the defence or to account for it as an exceptional circumstance that would subtract from the overall ceiling.
Issue #3 - Whether there is any defence delay (over and above the already admitted delay) in the attendance at Blitz Trial Scheduling Court and the subsequent acquisition of trial dates.
[36] There is come clear and admitted defence delay in this case. Defence counsel was unavailable for the first offered Blitz Trial Scheduling Court date of September 1st, 2022, and selected September 8th, 2022, as the scheduled date to set Mr. Gomes' trial.
[37] This is 7 days from the first available date to the selected date.
[38] On September 8th, 2022, defence counsel did not attend the Blitz Trial Scheduling Court as required, and a new date of September 29th, 2022, was set. Defence counsel appeared on that new date and the trial dates were set.
[39] This is 21 days from the time of the missed Blitz Trial Scheduling Court date to the new Blitz Trial Scheduling Court date.
[40] I am prepared to deduct 28 days from the presumptive ceiling as clear defence delay.
[41] As a result of defence counsel missing the initial Blitz Trial Scheduling Court date, the Crown makes the interesting, and frankly very attractive, argument that had defence counsel attended on the initial Blitz Court date as intended, Mr. Gomes would have been offered a trial date on average 60 days prior to the dates that were ultimately set.
[42] I was provided with the docket of cases to be set for trial on the September 8th, 2022, Blitz Court date. I was told in argument that the difference between like cases on the September 8th, 2022, docket and the date that Mr. Gomes’ matter was ultimately set for trial was on average 60 days. I did not have the Informations of those cases set for trial on September 8th, 2022, before me on this Application.
[43] While this argument is sound and perfectly reasonable, I am not prepared on this evidentiary record to attribute an additional 60 days to defence delay. On a different and more substantial evidentiary record, I may come to a different conclusion.
Issue #4 - Whether the effects of the COVID-19 global pandemic ought to be treated as an exceptional circumstance and should be afforded a blanket deduction for things like the time it took to get a JPT date, the time it took to get a Blitz Trial Scheduling Court date, and the time it took to get a 3-day trial.
[44] The Crown finally argues that the impact of the COVID-19 pandemic continues to play a role in the time it takes for matters to get to trial. I agree.
[45] It is well recognized that the COVID-19 global pandemic came upon Canadians and began its extreme and profound impact on the criminal justice system in this country in March of 2020. Soon thereafter, courthouses were shut down, trials were postponed (if not cancelled), appearances were delayed, and justice system participants waited (somewhat) patiently for things to “get back to normal”. Here we are some 3.5 years later and things may still not be completely “back to normal”. To draw on the analogy of Dunphy J. in R. v. Titus, 2022 ONSC 3484, there may yet still be part of that pig in the python not fully digested.
[46] At some point that complete digestion must happen. However, in my opinion we are not there yet. I agree with my colleague Prutschi J. in R. v. Jacques-Taylor at paragraph 47 that as we continue to move further and further from the event horizon of the COVID-19 pandemic, future 11(b) jurisprudence eventually needs to reflect this reality.
[47] The Ontario Court of Appeal in R. v. L.L., 2023 ONCA 52 tells me that I am entitled to draw on my “own knowledge of the culture at the court location” where I sit to determine the impact that the COVID-19 pandemic has had on the scheduling of a particular case.
[48] While I recognize that argument on this Application was heard on October 17th, 2023, and I was appointed a judge of the Ontario Court of Justice effective July 13, 2023, during the time of my appointment to the time of hearing this Application, I gained extensive knowledge into the scheduling practices and culture of the Newmarket courthouse through my frequent presiding over of Judicial Case Management Court, Blitz Trial Scheduling Court and the conducting of judicial pre-trials.
[49] The Crown argues for distinct “COVID-19 deductions” in this case relating to, (i) the time it took to get a JPT date; (ii) the time it took from the filing of the trial scheduling form to the setting of the Blitz Trial Scheduling court date; and (iii) a “blanket” deduction for the time between the setting of the date and the anticipated end of trial.
[50] In this case, there is there was quite a lengthy time between the request for JPT (May 17th, 2022) dates and the offering of a JPT date (July 12, 2022), the filing of the trial scheduling form (July 13th, 2022) and the first Blitz Trial Scheduling Court date offered (September 1st, 2022), and the time from setting that date (September 28th, 2022) to the anticipated end of trial (November 3rd, 2023).
[51] While there are still “ripple effects” of the COVID-19 pandemic (see the comments of Akhtar J. in R. v. Meawasige, 2023 ONSC 2907 at paragraph 48), those must be looked at as a whole, and not piecemeal as suggested by the Crown. I intend to treat all related COVID-19 delay as one.
[52] I am prepared to follow Henschel J.’s guidance in R. v. Korovchenko, 2022 ONCJ 388. In Korovchenko Henschel J. discusses the specific culture and specific circumstances of trial scheduling in Newmarket. Her Honour stated at paragraph 105: “The period of three months is likely a modest estimate but, in my view, it is a reasonable allowance. The allowance of three months includes the additional time required for a trial scheduling appearance – a practice adopted to facilitate efficient trial scheduling in York Region in place of in-person attendance at the trial coordinators office – and the additional time required for a matter to be set for trial from the trial scheduling set date”.
[53] I agree with Henschel J. and will attribute a 90 day deduction to the impact of the COVID-19 global pandemic as an exceptional circumstance to be deducted from the presumptive ceiling.
Conclusion
[54] Given my findings, the delay is calculated as follows:
- 817 total days from the swearing of the Information to the anticipated end of trial.
- A deduction of 112 days as a result of the exceptional circumstance for the time period between the swearing of the Information and the arrest of Mr. Gomes.
- A deduction of 28 days of clear defence delay.
- A deduction of 90 days as an exceptional circumstance due to the continuing impact of the COVID-19 global pandemic.
[55] This leaves a total of 587 days.
[56] Following the formula outlined by Justice Paciocco in R. v. Shaikh, 2019 ONCA 895, I will divide those 587 days by 30.417 to get the number of months.
[57] I find that the total delay after deductions in this case is 19.3 months. This delay falls outside the presumptive ceiling as outlined in R. v. Jordan.
[58] As a result, Mr. Gomes Application under section 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings following a violation of his right to be tried within a reasonable time as guaranteed by s.11(b) of the Charter is granted.
[59] The charge against Mr. Gomes will be stayed.
Released: November 24, 2023 Signed: Justice M. Townsend