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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 03 26 COURT FILE No.: Windsor 20-2004

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.N.

Before: Justice S. G. Pratt

Heard on: 2 February 2024 Reasons for Judgment released on: 26 March 2024

Counsel: Siobhan Dundon, Counsel for the Crown Jessica Grbevski, Counsel for the Defendant

RULING ON S. 11(B) APPLICATION

Pratt J.:

[1] The Applicant D.N. has brought an application for a stay of proceedings. He says it has taken too long for his trial to be conducted and that as a result, his Charter rights have been violated. The Crown acknowledges the total amount of time this case has taken to come to a conclusion has exceeded the limit set for matters in the Ontario Court of Justice. Taking other factors into account, however, such as defence delay and the impact of the Covid-19 pandemic, a stay is not warranted.

[2] These reasons explain why I agree with the Crown. The application will be dismissed.

Calculation Framework

[3] In 2016, the Supreme Court of Canada charted an entirely new course in assessing delay in criminal cases. Their decision in R. v. Jordan, 2016 SCC 27 moved away from the contextual analysis that had been used to that point, pursuant to R. v. Askov (1990 45 (SCC), [1990] 2 S.C.R. 1199) and the many cases that followed. Trial courts were instructed to impose deadlines for the completion of trial matters: 18 months in the provincial courts and 30 months in the superior courts.

[4] The notion of context was not entirely cast aside, however. Allowances could still be made for defence delay or in cases where unexpected events arose that derailed proceedings. The calculation is as follows:

(1) Calculate the Total Delay, which is the time from the swearing of the information to the expected end of the trial;

(2) Calculate Defence Delay, which can include time periods incurred solely by defence request or periods where delay is waived by defence;

(3) Calculate Net Delay by subtracting the defence delay from the total delay;

(4) If the Net Delay is above the Jordan deadline, consider possible reductions owing to Exceptional Circumstances brought about by discrete events or an especially complex case;

(5) If the delay falls below the deadline, the applicant must show that it is unreasonable;

(6) If it does not, and the case does not qualify for further consideration as a transitional case, a stay should issue.

[5] I will note that the case before me is not a transitional case. That distinction referred to cases begun before the Jordan decision but concluded after. That is not the situation in which the Applicant finds himself.

Total Delay

[6] The calculation of delay begins on the day the Information is sworn (see: R. v. Allison, [2022] O.J. No. 1922 (C.A.)). In the present case, that means 14 October 2020.

[7] When the counting ends has been considered by the Supreme Court of Canada as well. On this point, I disagree with both parties as to the end date. Speaking for the Supreme Court in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, Justice Moldaver said this at paragraph 33:

While Jordan states that the presumptive ceilings apply "from the charge to the actual or anticipated end of trial", the Court did not explicitly define the phrase "end of trial". It has been suggested that this phrase permits of four possible interpretations: (1) the end of the evidence and argument; (2) the date the verdict is delivered, excluding post-trial motions; (3) the conclusion of post-trial motions; or (4) the date of sentencing (see A.F., at para. 131). On close analysis, it is the first interpretation that accurately reflects the reasoning underlying Jordan and the mischief it sought to address. To be precise, the Jordan ceilings apply from the charge to the end of the evidence and argument, and no further. (Emphasis added)

[8] Justice Moldaver is clear that the calculation ends at the conclusion of evidence and argument. In the present case, that means total delay calculation concludes as of 9 November 2023.

[9] Total delay, therefore, is 1,121 days, or 36.8 months. This is well over the limit set in Jordan.

Defence Delay

[10] All justice system participants have an obligation to move cases through to trial expeditiously. This includes the defence. As I noted in R. v. Robert, [2022] O.J. No. 3942, at paragraph 10: “It would be unjust to allow the defence to slow proceedings significantly and then complain about how long they have taken. As has been noted elsewhere, the right guaranteed by s. 11(b) is a shield, not a sword.”

[11] In the present case, the Crown alleges two periods of delay that are attributable to the defence. The first is the period from 11 February 2021 leading up to the judicial pre-trial on 8 September 2021.

[12] On 7 January 2021, according to the transcripts filed, counsel for the Applicant confirmed receipt of disclosure. An adjournment was requested so that it could be reviewed. This is a reasonable and common request. The matter was adjourned to 11 February at defence request.

[13] On that day, it was further adjourned at defence request to 8 April 2021. The Court noted the matter would by then have been before the Court for six months, and that it was expected that steps would be taken to move it forward, including setting a judicial pre-trial, in the interim.

[14] On 8 April 2021, the defence requested an adjournment to 13 May 2021, for further instructions. According to the Crown chart provided, no Crown pre-trial or judicial pre-trial took place from 11 February to 13 May 2021.

[15] On 13 May 2021 the matter was adjourned to 24 June 2021 for the purpose of setting a judicial pre-trial. It is an unanswered question why this wasn’t done in the months prior.

[16] I am advised a judicial pre-trial was set for 8 June 2021 but adjourned as counsel was not available. It seems there was uncertainty over who would be representing the Applicant at that point, Paul Esco or current counsel Ms. Grbevski. The judicial pre-trial did not proceed on that day.

[17] On 24 June the matter was adjourned to 5 August 2021. On that date, a judicial pre-trial was set for 8 September 2021 and the matter was to return on 30 September.

[18] On that date, the case was presumptively adjourned to 4 November. The reason for that adjournment was that 30 September was declared to be the National Day for Truth and Reconciliation, and the Chief Justice of our Court directed that any matters returnable on that day should be adjourned.

[19] This first period of alleged defence delay begins after a four-week adjournment to review disclosure. The next several appearances were all defence adjournments. When a judicial pre-trial was finally set, it was adjourned as it wasn’t clear who would be representing the Applicant. The Applicant agrees that some of this period is the responsibility of the defence, but only from 8 June (the day of the adjourned pre-trial) to 5 August (the day the second pre-trial was set). The difficulty with this position is twofold: the pretrial was only set for June following multiple defence adjournments, and the second pretrial was only set because the defence could not conduct it on the first scheduled date. Respectfully, it appears that no meaningful steps took place from February until the judicial pre-trial in September. I see no other option than to count the period from 11 February to 8 September 2021 as defence delay. That period is 209 days, or 6.9 months.

[20] The second period of alleged defence delay relates to the setting of pre-trial motion and trial dates.

[21] As I said, following the judicial pre-trial the matter returned to court on 4 November. It was adjourned to 25 November, with an appointment to meet trial co-ordination and set trial dates scheduled for the 17th. On the 25th, the defence advised the Court that they could not set the dates and sought an adjournment.

[22] On 13 January, the defence sought an adjournment to 24 February. On that date, they sought an adjournment to 31 March. It was not until that day that pre-trial motion and trial dates were confirmed on the record.

[23] The Applicant agrees that the bulk of the time from 17 November until dates were set is defence delay. He submits, however, that the period should end on 9 March, which I’m told was the day the dates were set with trial co-ordination. The Crown says the period should extend to 31 March when the dates were confirmed on the record.

[24] In my view, the appropriate end date is the date the defence requested on 24 February, that is, 31 March. The defence could have brought the matter forward after the 9th to confirm the dates sooner but did not. Instead, they left it on the date they’d chosen.

[25] This second period of delay is 134 days, or 4.4 months.

[26] Part of the date-setting process involved obtaining dates for potential applications under ss. 276 and 278. These applications were not pursued, but the time for them nonetheless impacted when the trial could be scheduled. That said, there is nothing before me to suggest the applications were frivolous or illegitimate such that the defence should bear responsibility for the delay. Legitimate steps taken by the defence, even if the defence strategy changes and makes those steps unnecessary, should not count against them. I do not hold the defence responsible for any delay related to pre-trial motions. In any event, at least part of the pre-trial motion time was used for the Crown’s application to permit the Victim to testify with an iPad and keyboard.

[27] In total, then, the combined periods of defence delay amount to 343 days or 11.3 months.

Net Delay

[28] Subtracting defence delay of 343 days from the total delay of 1,121 days leaves 778 days, or 25.6 months. This continues to be in excess of the limit set in Jordan. I must consider if any exceptional circumstances apply to this case.

Exceptional Circumstances

[29] When unexpected events arise that knock a trial off course, the resulting delay can, in some cases, be deducted from the net delay or render otherwise unreasonable delay reasonable. The Supreme Court in Jordan set out two types of exceptional circumstances: discrete events and case complexity.

[30] A discrete event could be something that occurs unexpectedly either within the conduct of the trial or outside it. For example, as noted in Jordan, it could involve a recanting witness whose new position leads the Crown to change its case. Or it could involve a medical emergency for one of the trial participants. It could also be – and this is particularly relevant to the present case – when the trial estimate made in good faith by both counsel turns out to be entirely inadequate.

[31] The first possible discrete event to consider is the worldwide Covid-19 pandemic. In March 2020, the courts of Ontario and much of the world’s business suspended operations. Schools and companies were shuttered. International borders were closed. As the Covid-19 virus spread across the globe, life as we all knew it changed completely. In 2020 alone, the World Health Organization estimated the death toll of the virus to be in excess of 3 million people (see: https://www.who.int/data/stories/the-true-death-toll-of-covid-19-estimating-global-excess-mortality). As of March 2024, the WHO counted a total of over three-quarters of a billion cases and over seven million deaths (see: https://data.who.int/dashboards/covid19/cases?n=c and https://data.who.int/dashboards/covid19/deaths?n=c).

[32] It is difficult to understate the impact the pandemic had on the court system. Thousands of cases were presumptively adjourned throughout 2020. Cases that had been set for trial were delayed while new cases continued to enter the system. The result was an unprecedented backlog of matters that courts are still trying to work through in 2024.

[33] At paragraph 69 of Jordan, the majority stated:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[34] Without question, the Covid-19 pandemic was an exceptional circumstance at least as it relates to the first part of the test. It was entirely unforeseen and unavoidable. Had the Supreme Court imposed the further hurdle of being “rare or entirely uncommon”, it would have met that test as well. I am supported in this finding by the Court of Appeal for Ontario in the case of R. v. Agpoon, 2023 ONCA 449 at paragraph 19.

[35] The question relates to the second part of the test: could the Crown have reasonably remedied the delay that resulted?

[36] This question is informed by the Supreme Court’s direction in Jordan at paragraph 75:

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625).

[37] It is not enough for the Crown simply to identify an exceptional circumstance when trying to explain delay that is prima facie unreasonable. It must also show that it took the steps it could to mitigate that delay.

[38] Taking the “bird’s-eye view of the case” I am told to take in Jordan, I cannot ignore the system-wide damage the pandemic wrought on our courts. It is clear, from both the materials filed by the Crown on this application and our own experiences locally, that the Crown is prioritizing cases in the Covid-19 aftermath. As I noted earlier, while previously scheduled cases were being adjourned, new cases (like the Applicant’s) continued to enter the system. New cases, especially those where the defendants were out of custody, took their place in line behind those that had been derailed previously. Faced with a finite number of courtrooms and judges, the Crown triaged outstanding cases. This has necessarily meant increased delays for cases that have come before the courts subsequently. That increased delay fits squarely within the exceptional circumstances exception set out in Jordan.

[39] One might argue that this exceptional circumstance should only apply to cases that were adjourned as a direct result of the pandemic, i.e., cases set for trial in the months following March 2020 that were adjourned presumptively. It should not apply to new cases that began after those court closures. The Applicant appears to take this position as he denies any delay in this case referable to the pandemic. In my view, that argument takes far too narrow a view of the pandemic’s impact. Covid-19 disrupted court operations in the early 2020s and continues to disrupt operations today. There is no reasonable basis on which a distinction could be drawn between pre- and post-pandemic cases.

[40] Another discrete event, in the Crown’s submission, is the declaration of the National Day for Truth and Reconciliation. This day was first observed on 30 September 2021, a day the Applicant was before the Court. As a result, his matter was presumptively adjourned as the Court was not hearing matters on that day. Candidly, I’m not sure I would characterize the resulting delay as an exceptional circumstance as the day was neither a provincial nor national holiday; rather it was a day where the Chief Justice of our Court directed that matters should not be heard. To me, this seems like an institutional decision taken by the Court, with any consequent delay being the responsibility of the Crown. It seems, however, that I am in the minority on this point. Other trial judges have viewed adjournments because of this day as an exceptional circumstance (see: R. v. Valiquette, [2022] O.J. No. 1271 (S.C.J.); R. v. Nassr, [2023] O.J. No. 5037 (S.C.J.); R. v. Brar, [2023] O.J. No. 470 (C.J.)). In the interest of judicial comity, I will adopt their position and find that the period from 30 September to 4 November 2021 to be delay caused by an exceptional circumstance.

[41] What remains is the calculation of the combined impact these exceptional circumstances had on the present case.

[42] The delay from the 30 September adjournment is easy to calculate. The case was delayed for 35 days, or 1.2 months.

[43] How to quantify the delay caused by the pandemic backlog is more difficult. I cannot say the present case was delayed for a specific period. I can only consider the effect the pandemic had on the justice system as a whole, and how the Crown sought to mitigate that effect.

[44] Certainly, the pandemic was responsible for the delay in setting any dates from 17 March 2020, when court operations largely shut down, and 17 August 2020, when the Court resumed setting out of custody trials and preliminary hearings. That delay is clearly attributable to the pandemic. I recognize the Applicant’s case was not before the Court at that time, but as I will explain, that is not relevant to the overall analysis. Rather, the shutdown was the initial event that triggered an eventual avalanche on the justice system. I can’t ignore it.

[45] While out of custody dates were being set again as of 17 August 2020, that is not to say that everything went back to normal. Far from it. On that day, the thousands of cases that had been circling the airport for months began receiving permission to land. Those landings were done on a priority basis. Matters that had begun prior to the pandemic and had been adjourned were given preference. When the Applicant’s matter entered the system in November 2020, he was in line behind all the cases that had been adjourned, and that had entered the system before he did. He was also behind all in-custody matters, regardless of when they entered the system. The delay in available trial dates is directly attributable to the backlog created by Covid-19. The trial dates set in this case were nearly twelve months into the future. I would assign four months, or 120 days, of that delay to the pandemic-related backlog.

[46] Another exceptional circumstance can occur when a matter takes significantly longer than either counsel anticipated. In the present case, four days were set aside for trial. At the time, all parties believed in good faith that would be sufficient. In the end, it wasn’t. The trial went on for more than twice as long, requiring continuations dates spread throughout 2023.

[47] That inadequate time estimates can be counted as discrete events has been noted in several cases (see: R. v. Shlyk, 2021 BCCA 472; R. v. Matthew, [2021] O.J. No. 543 (C.J.); R. v. Yeo, [2023] N.S.J. No. 138 (Prov. Ct.); R. v. Fodor, [2023] O.J. No. 3271 (C.J.)).

[48] The Crown’s primary witness was the Victim. As I’ve noted in previous rulings in this case, she is unable to speak owing to a stroke she suffered as a child. She testified using an iPad with pre-recorded responses, and a keyboard where she was able to type out her answers. Her typed answers were visible on a television screen in the courtroom. This procedure worked reasonably well, but it was slow. The Victim had to take time to either find the right iPad response or to type out an answer, and counsel often had to restate their questions in a yes or no format to allow for shorter responses. The Victim also required several breaks. This meant that her testimony took far longer than was anticipated. As these methods of testifying had never been used in cases involving either counsel before (or involving this Court), no one really knew just how long the trial would take. An estimate of four days was perhaps a bit optimistic, but I can’t say it was unreasonable. It certainly wasn’t made in bad faith.

[49] The pace at which the trial unfolded was unforeseen by the parties. Beyond that, there was nothing to be done to mitigate the resulting delay as the way the trial proceeded was the only way in which the Victim could testify. This was a novel situation that all parties had to deal with.

[50] The Victim’s examination in chief also required at least commencing a past recollection recorded voir dire, which had not been anticipated by the parties. I would equate this to the idea of a recanting witness as offered in Jordan as a discrete event of its own.

[51] The trial was initially scheduled for 6, 8, 9, 10 March 2023. The Victim took the stand on the 8th. She testified on the 9th as well. At that point, counsel took the opportunity to seek further dates from trial co-ordination. Dates in July and September were obtained. Her cross-examination began on the 10th and continued on 26 and 28 July. She completed her testimony with re-examination on the 28th.

[52] From there, the Crown filed an agreed statement of facts and called two officers solely for the purpose of cross-examination. The Crown closed its case on 14 September. The defence called one witness that day. The matter returned to court on 6 October for an update on whether the defence was calling any further evidence. They did not. Submissions were heard on 8 and 9 November and a decision was rendered on 18 January 2024.

[53] In total, the Victim was on the witness stand for five days. Three other witnesses were called after her, all of whom were heard in one day.

[54] I find the delay occasioned from 10 March, the last initial day set for trial, until 14 September, the day the Crown closed its case, to be delay brought on by the exceptional circumstance of the Victim’s manner of testifying. That is 188 days, or 6.2 months. That delay should be deducted from the net delay in this case.

[55] Adding the four months of backlog delay noted earlier, together with the 35 days related to the Day for Truth and Reconciliation, the total amount to be deducted from the net delay, therefore, is 343 days, or 11.3 months.

[56] Subtracting 343 days from the net delay of 778 days leaves 435 days, or 14.3 months.

[57] As this amount is below the threshold for provincial court matters set in Jordan, it is not necessary for me to continue the analysis and address the complexity of the case as a separate issue.

[58] At paragraph 48 of Jordan, the Supreme Court said:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[59] The Applicant has led no evidence to show that delay below the threshold has been unreasonable. I find that both counsel took steps to expedite proceedings when continuation dates were secured after only the third day of trial. They are to be commended for that. For the reasons I have already set out, I find the Applicant has not shown the case took markedly longer than it reasonably should have. Yes, the case took longer than expected. That additional time, however, was the result of multiple discrete events that combined to slow this proceeding beyond the control of any party.

Result

[60] The delay in this case falls below the Jordan threshold. There is no basis on which to conclude that regardless of that finding a stay should issue.

[61] The application is dismissed.

Released: 26 March 2024 Signed: Justice S. G. Pratt