ONTARIO COURT OF JUSTICE DATE: 2024·04·17 NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARQUIS CLARK
RULING ON s11(b) APPLICATION
Heard and Delivered: April 17, 2024.
Mr. S. Moshé-Steinberg ........................................................... counsel for the Federal Crown Mr. J. Parkin...................................................................... counsel for the defendant/applicant
KENKEL J.:
Introduction
[1] Mr. Clark was arrested for firearms and drug trafficking charges. The Information was sworn March 18, 2022. The overall delay to the scheduled end of the second trial on May 14th, 2024 is 789 days or 25 months and 27 days including the end date. That’s well in excess of the presumptive ceiling for this court set in R v Jordan, 2016 SCC 27. Mr. Clark alleges that the delay breaches his s 11(b) Charter right to a trial within a reasonable time and he requests a stay of proceedings under s 24(1) as a remedy.
[2] Both parties have assessed the delay in accordance with the 5-step Jordan procedure set out in R v Zahor, 2022 ONCA 449 at paras 60-78. Their analysis is not far apart. The central issue for decision in this case is whether any consideration of the delay caused by the ongoing systemic effects of the COVID pandemic should be applied to a 2022 case that is scheduled for its second trial date in May of 2024.
Analysis
[3] The applicant concedes there was defence delay from November 2nd, 2023 to the target final trial date May 14, 2024 (195 days). Subtracting that delay from the total delay (789 -195) leaves 594 days or 19 months and 16 days which is just above the Jordan ceiling. The defence submits that there are no exceptional circumstances that justify a delay beyond that ceiling in this case.
[4] The Federal Crown submits that the net delay is just over 15 months. They submit that the following should be deducted from the overall delay:
- 219 days of defence delay;
- 90 days arising from the ongoing systemic effects of the COVID backlog;
- 21 days occasioned by the unavailability of counsel for the co-accused for the first trial scheduling date.
[5] The Crown arrives at a higher 219 figure by adding two 12-day periods to the admitted 195 days of defence delay. The Crown submits that since the defence does not contest the delay after November 3rd, 2023 as they did not have early available trial dates, it makes sense to attribute all of the delay after the mistrial on October 23rd, 2023 to defence delay.
[6] The mistrial was ordered by Justice Prutschi because it was determined during the first trial that the defence had not received some relevant disclosure and that an adjournment would not provide an adequate remedy. In my view the resulting 12 days delay to November 3rd, 2023 cannot be attributed to the defence. That’s the case even if the delay after November 3rd is conceded to be defence delay because neither defence counsel had earlier available trial dates.
[7] The Crown also submits that a further 12 days be added due to the failure to schedule a “JPT” judicial case management pre-trial meeting in July of 2022. I have reviewed the record and while I understand the Crown’s submission, I would not add that period to defence delay.
[8] The global COVID pandemic had a significant disruptive effect on the court system that lasted for years and continues to some extent to this day. In August of 2022, our Local Administrative Judge in R v Korovchenko, 2022 ONCJ 388 set 90 days as a conservative estimate of the delays she listed caused by that exceptional circumstance during that period. That estimate has been applied in Newmarket and closeby regions in several subsequent cases: R v Martins, 2024 ONSC 146 at paras 23-24, R v Simpson, 2024 ONCJ 52, R v Gomes, 2023 ONCJ 518, R v Jacques-Taylor, 2023 ONCJ 243.
[9] This case started during the active pandemic in 2022. I agree with the Crown that the record of adjournments and scheduling shows resulting delays attributable to the systemic effects of the pandemic. Justice Henschel’s estimate of 90 days is informed by her unique position as administrative judge. I adopt her reasons and find her estimate is applicable to this case. I agree with the Crown that 90 days should be deducted in this case.
Conclusion
[10] The overall delay is 789 days. The defence concedes 195 days should be deducted from that total. I would deduct a further 90 days representing the systemic delays seen in the record in this case that are reasonably attributable to the COVID pandemic, a discrete exceptional event.
[11] Subtracting 195 days (defence) and 90 days (COVID) from the overall delay of 789 days leaves 504 days. 504 days is just over 16 and a half months which falls below the Jordan ceiling.
[12] I’ve considered whether this case nevertheless breaches s 11(b) due to the overall delay and the fact that the first trial resulted in a mistrial. The transcript on the final trial date indicates that it was accepted that the disclosure issue was an inadvertent mistake. It was quickly remedied. Early further trial dates were offered and as the defence concedes most of the subsequent delay was to accommodate the schedules of both defence counsel. In that context I find this is not a case where a breach results below the presumptive ceiling.
[13] The application is dismissed.
Delivered: April 17, 2024. Justice Joseph F. Kenkel