ONTARIO COURT OF JUSTICE

DATE: July 25, 2024

COURT FILE No.: St. Thomas Court File 1536283

BETWEEN:

HIS MAJESTY THE KING

— AND —

HOLLY BROECKEL

Before: Justice of the Peace Anna M. Hampson

Heard on: July 4, 2024

Reasons for Judgment released on: July 25, 2024

Counsel: K. Harper, counsel for the prosecution J. Stocker, agent for the defendant Holly Broeckel

JUSTICE OF THE PEACE HAMPSON:

[1] Holly Broeckel is charged with failing to yield to through traffic on a highway contrary to s. 136(1)(b) of the Highway Traffic Act. The incident occurred on June 4, 2022, within the City of St. Thomas. The defendant brought an application for a stay of the charges due to unreasonable delay for a violation of s. 11(b) of the Charter. Ms. Stocker, on behalf of the defendant, argues that the delay was unreasonable and was due to the lack of judicial resources. Ms. Harper, on behalf of the prosecution, argues that the delay involved was not unreasonable and was due to the COVID-19 public health crisis. A not guilty plea was entered by the defendant on July 4, 2024, and the Charter application was argued. The matter was adjourned to July 25th for my decision. For the following reasons, the application is dismissed.

THE LAW

[2] Under the Charter, the applicant has a right to be tried within a reasonable time.

[3] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 addressed what was termed a culture of complacency and set a presumptive ceiling for delay for matters heard in the Ontario Court of Justice at 18 months. The 18-month ceiling was thereafter affirmed for Part I and III matters heard under the Provincial Offences Act. See R. v. Nguyen, 2020 ONCA 609.

[4] The Ontario Court of Appeal in R v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 addressed the steps to be taken when analyzing applications under the Jordan framework as calculating the total delay, subtract defence delay which results in net delay. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The crown must then rebut the presumption by establishing exceptional circumstances which are discrete events and particularly complex cases. The delay caused by discrete events is subtracted which then leaves the remaining delay. If this remaining delay exceeds the presumptive ceiling, then a consideration is given as to whether the case was particularly complex such that the delay is justified and reasonable. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[5] The defendant received a provincial offence notice on June 4, 2022. The Certificate of Offence was filed by the police officer on June 7, 2022, which is the date that time starts to run. The defendant entered a not guilty plea at the commencement of the trial on July 4, 2024, being the same day that the Charter application was heard. The total time for the analysis is therefore 24.9 months (24 months and 27 days).

[6] The defendant elected to have an early resolution (ER). Although it was the suggested process within the St. Thomas prosecution’s office for part 1 proceedings to have ER dates to have resolution discussions as opposed to having a matter set for trial which meant that there would not be resolution discussions, the choice to have an ER as opposed to requesting a trial was for the defendant to make. The Notice of the ER was dated June 22, 2022, for August 10, 2022. There were email exchanges between the agent (July 27th) and the prosecutor (August 6th) each suggesting a resolution. The agent for the defendant advised by email on August 10th that she was unable to get instructions and had previously indicated she was going on holidays so suggested the ER be adjourned. The prosecutor agreed and thus the ER was adjourned to the next available date being September 28th (1.6 months). Neither the agent nor the defendant was required to attend on August 10th. By September 26th, the matter was not going to resolve, and the agent indicated that a 90-minute trial would be necessary. The prosecutor advised the agent that it wasn’t going to be necessary to attend court on September 28th and the matter was to be scheduled administratively for trial.

[7] The trial was set administratively by way of a Notice of Trial dated June 5, 2023, for August 3, 2023. On July 28, 2023, all trials scheduled for August 3, 2023, were cancelled and pursuant to s. 49(5)(b), the clerk of the court was able to adjourn all matters. The agent was advised of this cancellation and that a new trial date would be set administratively.

[8] The trial was then scheduled administratively for February 15, 2024, by way of a Notice of Trial dated January 3, 2024. The defendant served and filed a Notice of Application and Constitutional issue on January 31, 2024, to be argued at the commencement of the trial on February 15th. The matter did not proceed on February 15th. The agent for the defendant experienced a sudden and tragic death in her family 2 days before, and thus the prosecution clearly consented to the adjournment. The trial was set administratively by way of a Notice of Trial dated March 11, 2024, for July 4th for 2 hours.

CALCULATION OF NET DELAY

[9] The net delay is calculated by subtracting any defence delay from the overall delay. This is a Part 1 proceeding. The defendant did not have any input into the selection of the first ER date, nor in the trial date scheduled for either August 3, 2023, or February 15, 2024, or July 4, 2024, as all these dates were set administratively. I do not find that there is any defence delay in this case. The only possible defence delay is between August 10, 2022, and September 28, 2022, being 1.6 months (49 days). However, I do not find this to be defence delay as it was reasonable to have to get instructions and there is no evidence the agent’s vacation interfered with the scheduling of the next available ER date, some 49 days later. Thus, the net delay is 24.9 months. This net delay is above the ceiling of 18 months and thus the delay is presumptively unreasonable.

[10] The onus is thus on the crown to rebut the presumption by establishing exceptional circumstances which are discrete events and particularly complex cases. The prosecution concedes that this is not a particularly complex case. The prosecution argues that there are exceptional circumstances due to discrete events, namely the COVID-19 public health crisis. The prosecution submits that once the discrete event of the effects of the public health crisis are considered, the remaining delay is between 4.5 months and 10.9 months. The prosecution therefore submits that this is not unreasonable and is below the presumptive ceiling of 18 months, and that the defendant has not established she took meaningful steps to expedite the matter.

[11] Ms. Stockert agrees that COVID-19 public health crisis can be a discrete event, however, she submits that none of the delay in this matter can be attributed to the COVID-19 public health crisis for two reasons. Firstly, the allegation is from June 4, 2022, which is more than 2 years after the public health crisis was declared. Secondly, the trial date of August 3, 2023, was within the presumptive 18-month timeframe, and that the delay from August 3, 2023, to February 15, 2024, being 6.4 months (196 days) was entirely due to the lack of judicial resources. The defendant argues that the entire delay (24.9 months) is therefore unreasonable.

DISCRETE EVENTS

[12] I find that the period between February 15, 2024, to July 4, 2024, namely 4.9 months (149 days), is a discrete event in and of itself for the reason set out in paragraph 8.

[13] On this initial calculation, the delay is still above the 18-month ceiling and thus is presumptively unreasonable with the onus still on the prosecution:

Total delay: 24.9 months No defence delay Net delay: 23.3 months Discrete event: Feb 15/24-July 4/24 (4.9 months) REMAINING DELAY: 18.4 months

COVID-19 HEALTH CRISIS

[14] The courts in Ontario have been unanimous in determining that the COVID-19 public health crisis amounts to an exceptional circumstance. The impact of the public health crisis affected all aspects of the courts. (R. v. Simmons, 2020 ONSC 7209, Toronto (City) v. Yaqoobi, [2021] O.J. No. 6149, Toronto (City) v. Soudine, [2021] O.J. No. 4939; R. v Khan, 2021 ONCJ 195; R v. Hyacinthe, 2022 ONSC 1444). 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.[4] In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.

[15] Although Simmons was decided early in the public health crisis, Justice Nakatsuru’s comments as highlighted are insightful and perceptive. The impact of the COVID-19 public health crisis has affected all cases coming into the justice system. With respect to the provincial offences court, the COVID-19 public health crisis has affected those cases that existed before March 15, 2020, and all Part 1 proceedings as well as Part 3 proceedings that have come into the system since March 15, 2020. However, there is no standard deduction of the delay simply due to this discrete event. COVID-19 is still here and will be here for a long time, if not forever. The question becomes, what if any of the delay can be attributed to the discrete event of the COVID-19 public health crisis. The prosecution agrees that it cannot rely on the discrete event of the public health crisis for the entire delay.

[16] The POA courts across the province were closed as of March 17, 2020, and all matters were adjourned administratively until further notice. On May 19, 2020, the Ontario Court of Justice announced that no POA proceedings would be conducted until July 6, 2020, except for judicial pretrials. On January 11, 2021, a second wave of COVID-19 was declared with another stay-at-home order issued under the Emergency Management and Civil Protection Act, (EMCPA). On January 21, 2021, the Ontario Court of Justice announced (the January announcement) that remote hearings by video conference for both trial and non-trial matters could commence subject to the specific court location’s technology and readiness. Various orders and directives made by the Chief Justice of the Ontario Court of Justice resulted in all trials scheduled between March 16, 2020, and January 22, 2021, were to be adjourned.

[17] The January announcement did not mean that the impact of the COVID-19 public health crisis was over. The discrete event continued. According to the affidavit of Deana Laemers, manager of the Provincial Offences Court Administration for the County of Elgin sworn February 2, 2024:

• No in person matters were permitted until appropriate health and safety measures were implemented.
• In February 2021, she met with the RJSP and the regional lead person of the Ontario Court of Justice Modernization committee to work towards commencing virtual proceedings.
• In March 2021, arrangements were made for mock proceedings to ensure compliance with the directives.
• By April 2021, Elgin County was approved to commence trials.
• The oldest matters from the backlog were scheduled first and the first virtual trials commenced on May 28, 2021.
• Information technology was updated and included the installation of virtual camera system, retrofitting the only courtroom with safety equipment and procedures for protection of all staff, judiciary, police, defendants, and witnesses.
• Virtual trials experienced many obstacles including technology issues with defendants having poor internet connections; interpreter issues where interpreter and defendant in 2 different locations and having to stop testimony to ensure proper communication; issues where defendants and their representatives in different locations and needing to go into break out rooms to communicate; issues with document sharing; as a result, very limited numbers of matters could be placed on a trial docket.
• Many of these issues have resolved and virtual courts are more efficient but not up to the standard of in person trials.
• Despite diligence and improvements, there is still a struggle setting trial dates to overcome the 14 months of lost trial time between March 2020 and May 2021 as well as losing 4 court days between June 2023 and September 2023 due to lack of judicial resources as well as the closure of courts on September 30, 2022, due to the recognition of the National Truth and Reconciliation Day.

[18] As was noted in R v. Titus, 2022 ONSC 3484 at para 17, Justice Dunphy describes how “like the proverbial pig in the python” the public health crisis has led to a backlog of cases due to hearings being cancelled or deferred. The legal system “cannot expand and contact at will” to meet unforeseen emergencies. All cases that were before the courts prior to March 20, 2020, as well as all cases since then, have come into the system that has clearly been unprecedently transformed due to the COVID-19 public health crisis. As was noted in Titus at para 18, even with the extraordinary efforts of the courts to update and respond to the public health crisis, preventing a backlog of cases from developing was a “mathematical impossibility”. This includes the Provincial Offences Court.

[19] The Ontario Court of Appeal in the unanimous decision in R v. Agpoon, 2023 ONCA 449 offered some guidance to trial judges for the application of Jordan principles to public health crisis delays going forward. Agpoon dealt with a jury trial in the Superior Court, however, the Court of Appeal at paragraph 33 indicated that similar principles apply with necessary modifications to the Ontario Court of Justice, which would therefore include the provincial offences court. At paragraph 34 the court said:

[34] This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.

[20] The policy decisions in Agpoon included regional blackouts as well as province wide blackouts, provincial and local restrictions in terms of courtroom capacity limits, physical changes to courtrooms with not all courtrooms being open which resulted in even further capacities, and addressing the backlog of cases created by closures and continuing restriction by triaging and prioritizing cases with a recognition the Regional Senior Justices were given significant discretion over how to manage the backlog with most regions prioritizing in custody criminal matters over out of custody matters, and continuing trials over new trials. In my view, this also applies to Regional Senior Justices of the Peace who were given significant discretion over how to manage the backlog of cases within the provincial offences court. It must also be remembered that those judicial officers who preside in the provincial offences courts, namely justices of the peace, were also the judicial officers who presided in the criminal courts, which included the bail courts and case management courts as well as intake courts for both police and the public.

[21] The Jordan analysis was a clear direction by the Supreme Court of Canada to not assign blame by discouraging the “complicated micro-counting” (para 111) and that “trial judges should not parse each day or month…[but] should step back from the minutiae and adopt a birds’-eye of the case” (para 91). Taking a bird’s eye view of this case leads me to the conclusion that much of the delay in this matter is attributable to the discrete event of the COVID-19 public health crisis even though this matter before me arose in June 2022. It came into the system while there were still major disruptions to the courts due to the discrete event of the COVID-19 public health crisis and while there were still significant backlogs. There were also significant efforts to address the backlog and all the cases that came into the system after the start of the public health crisis and before this incident arose. This case cannot be treated in isolation from the rest of the cases before the court.

[22] The prosecution argues that 14 months ought to be attributed to this discrete event in this case. This was the same amount of time it took for the Elgin County Provincial Offences Court to have the first set of virtual trials. It must be remembered that in person matters in the Ontario Court of Justice were only allowed to commence as of April 4, 2022, being another 11 months later. Clearly the discrete event of the public health crisis was still impacting the operation of the entire court system. If 14 months is attributed to the discrete event of the public health crisis, the remaining delay in this case before me is 4.4 months which is clearly below the presumptive ceiling and is thus not unreasonable.

ANY OTHER REASON FOR THE DELAY

[23] Ms. Stockert submits that the reason for the delay is not due to the COVID-19 public health crisis but is due to the lack of judicial resources. She submits that the original trial date of August 3, 2023, was within the presumptive ceiling and thus there was no delay. She submits that the 6 months from August 3, 2023, to February 15, 2023, was due to the lack of judicial resources due to the cancelation of the trial date by way of the s. 49(5) order issued by the RSJP on July 28, 2023.

[24] The fact that the trial date of August 3, 2023, was within the 18-month presumptive ceiling does not mean that there was no impact of the discrete event of the COVID-19 public health crisis. That is too simplistic and unrealistic. In addition, it would still have been open for the defendant to argue that there was unreasonable delay with the onus being on the defendant to show demonstrate that it took meaningful steps that demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have, with the expectation that stays beneath the ceiling would be rare and limited to clear cases: see Jordan para 48.

[25] I am the Local Administrative Justice of the Peace for St. Thomas and Woodstock and as such have some knowledge of the local courts as well as those within the West Region. The various LAJPs within the west region work with the Senior Regional Justice of the Peace in terms of advising of local practices and issues within the criminal bail courts, criminal case management courts, intake courts, and private prosecutions as well as the various municipal provincial offences courts. On any given day, the west region covers between 23-25 criminal courts (sometimes more) and 6-8 (sometimes more) provincial offences court. This does not include any Judicial Pretrial courts for provincial offences, nor provincial offences special (or lengthy) trials, nor any special (or lengthy) bail hearings for those facing criminal charges.

[26] The full complement of justices of the peace for the west region is 47. At the beginning of 2023, there were 32 justices of the peace for the west region. By August 2023, there were only 30. There were 3 jurisdictions that did not have a full-time justice of the peace. There was virtually no coverage for any sick calls or vacation. From the beginning of the public health crisis through to the end of 2023, there were many retirements with some electing not to preside on a per diem basis. Sadly, there was also the passing of justices of the peace.

[27] I am also the Mentoring Coordinator for the West Region. The mentoring and education program for newly appointed justices of the peace is approximately 14 months. It is extensive and involves mentoring with experienced justices of the peace, as well as 10 weeklong education programs in person in Toronto, as well as several (6) virtual half or full day programs. The first six months focuses on criminal matters and thus many of the new appointees can start presiding on their own in the various criminal courts at different times throughout this first six months. The last six months focuses on the provincial offences matters. In February 2020, 4 justices of the peace were appointed for the west region. In June 2021, 3 were appointed for the region. In December 2022, 3 more were appointed for the region. None were appointed in 2023. On January 29, 2024, 10 new justices of the peace were appointed for the west region. There were 49 appointed for the province. Clearly, it takes a significant amount of time before the new appointees are fully ready to preside on their own in any court.

[28] In addition, there is a mandatory spring and a fall education conference (3-4 days depending upon travel) for all justices of the peace in the province held over 2 different weeks so that the criminal courts are always running. In the west region, there are no provincial offences courts running during these conferences. In addition, there is an Indigenous Justices of the Peace conference (3-4 days depending upon travel) as well as a separate conference for the French Justices of the Peace (3-4 days depending upon travel).

[29] Difficult decisions needed to be made. The dockets for all the various criminal case management courts and bail courts are lengthy and many days are long. The dockets for the provincial offences courts were also lengthy and the days were long. Clearly, the criminal bail courts needed to be given priority given the presumption of innocence, the right to have a bail hearing within a very limited period of time, and the right not to be denied reasonable bail without just cause. As a result, by 2023, criminal courts were combined such that one justice of the peace had at least 2 and sometimes 3 different jurisdictions to cover. Another decision resulted in the reduction of the number of provincial offences courts throughout the region with each region losing one or more days. On some days, it became necessary to cancel an existing POA court (by way of s. 49(5) orders) that had matters already scheduled for trial, ERs, and/or first appearances on very short notice so that a criminal court (bail and/or case management) would have coverage. This was only after attempts were made to cover the criminal court from the per diem bench and after asking other regions if they could spare someone. This is what happened on August 3rd in this matter. Canceling a court was never easy, nor was it wanted and was only used as a last resort. Each of the various provincial offences court locations had 1 or more of their courts cancelled by way of s. 49(5). This was not unique to the west region as it was happening throughout the entire province.

[30] The provincial offences courts throughout the west region will have some of the regular days returned to them. For St. Thomas this commenced July 2024.

[31] It is within this context that the delay between August 3, 2023, to February 15, 2023 (196 days or 6.4 months) must be addressed. The prosecution submits that even if the 6.4 months of delay is due to the lack of judicial resources, which it concedes, the overall delay is still well below the 18-month presumptive ceiling once the delay for the discrete event of the public health crisis is taken into account. The prosecution therefore submits that the overall delay is between 4 months and 9 months with a recognition of 1.6 months of defence delay. Again, the defence submits that the overall delay is 20 months (24 months if the period from February 15, 2024, to July 2, 2024, is included), that there is no delay attributed to the defence, that none of the delay can be attributed to the COVID-19 public health crisis, that there was a lack of judicial resources, and therefore the delay is unreasonable.

[32] Taking a bird’s eye view of the delay, I find that the delay caused by the discrete event of the COVID-19 public health crisis is 12.5 months. This is half the time it took for in person trials to be heard in St. Thomas after the declaration of the public health crisis and the court closures. Simply having trials virtually and then in person did not mean that the discrete event of the COVID-19 public health crisis ended. As indicated, there is no standard deduction for this discrete event. Attributing 12.5 months of the delay to this discrete event is reasonable in these circumstances. This matter came into the system in June 2022 and joined all the other matters already in the system and cannot be viewed or treated independently or as if the other cases did not exist. All the matters that came into the system after June 2022 have also joined the system.

CONCLUSION

[33] The delay in this matter is calculated as follows:

Total delay: 24.9 months No defence delay: Net delay: 24.9 months (is above the 18-month presumptive ceiling) Discrete event: Feb 15/24-July 4/24 (4.9 months) Discrete event due to the COVID-19 public health crisis (12.5 months) Delay before considering any other reason 7.9 months (is below the 18-month presumptive ceiling) Other reason for delay (lack of judicial resources) 6.4 months to be added REMAINING DELAY: 13.9 months

[34] In these circumstances, the delay is not unreasonable. The COVID-19 public health crisis contributed significantly to delay as did the lack of judicial resources. However, when all of that is taken into consideration the remaining delay is below the presumptive ceiling. There is no evidence, nor were there any submissions that the defendant took steps to expedite the trial. Therefore, the application is dismissed.

Released: July 25, 2024 Signed: Justice of the Peace Anna M. Hampson