REASONS FOR JUDGMENT

APPLICATION UNDER S. 11(B) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

BYRNE J.

Introduction

[1] Marco Gutierrez (“the Applicant”) brings this application seeking a stay of proceedings on the grounds that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms has been infringed.

[2] The Applicant was arrested on January 7, 2018 and charged with:

• Sexual interference with a person under the age of 14 (x3);

• Sexual exploitation;

• Invitation to sexual touching with a person under the age of 14; and

• Sexual assault (x2).

[3] A fifteen-day jury trial is scheduled to commence on May 17, 2021 and anticipated to conclude on June 4, 2021.

[4] All parties agree that the time between the charge and the anticipated trial date is 40 months and 19 days. Further, the parties agree that no delay is attributable to the defence.

Analysis

[5] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada set the presumptive ceiling for delay in the Superior Court of Justice at 30 months. Any delay in bringing an accused to trial in excess of 30 months is presumptively unreasonable: Jordan at para. 5.

[6] In this case, the 40-month and 19-day interval between the charge date and the expected completion of the trial exceeds the presumptive ceiling. Accordingly, the Crown bears the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances.

[7] Exceptional circumstances are those that lie outside the Crown’s control. That is: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) the Crown could not reasonably remedy the delays emanating from those circumstances. If an exceptional circumstance relates to a discrete event, the delay attributable to that discrete event is subtracted from the total delay to determine if the ceiling has been exceeded: Jordan at paras. 68-80.

[8] The presence of exceptional circumstances is the only basis upon which the Crown can justify a presumptively unreasonable delay. If the Crown fails in that regard, a stay must follow: Jordan at paras. 81 and 114.

[9] This application focuses on two discrete events: (1) the COVID-19 global pandemic and (2) the Applicant’s funding applications.

[10] The following table provides an overview of the delay in relation to this matter:

DATE RANGE	DELAY	ATTRIBUTABLE TO
JANUARY 17^th, 2018 – MARCH 15^th, 2019	13 months, 26 days	PRELIMINARY INQUIRY The Applicant had counsel from the outset. This period comprises the time spent to obtain disclosure, conduct the JPT, and set and conduct the preliminary inquiry.
MARCH 15^th, 2019 – APRIL 23^rd, 2019	41 days	FIRST DAY IN THE SUPERIOR COURT This was the first available date for appearance in the Superior Court after the preliminary inquiry.
APRIL 23^rd, 2019 – OCTOBER 11^th, 2019	5 months, 18 days	LEGAL AID/ROWBOTHAM FUNDING PROCESS Despite the Applicant’s best efforts, it took 5 months and 18 days for him to obtain funding for his defence through the Legal Aid/Rowbotham processes.
OCTOBER 12^th, 2019 – NOVEMBER 1^st, 2019	20 days	SUPERIOR COURT JPT This was the first JPT scheduled in the Superior Court.
NOVEMBER 1^st, 2019 – JULY 24^th, 2020	8 months, 23 days	TIME TO END OF SECOND SCHEDULED TRIAL The Applicant pursued and received earlier trial dates, since the first scheduled trial would have been set for November 2020.
JULY 24^th, 2020 – JUNE 4, 2021	10 months, 11 days	TIME TO END OF THIRD SCHEDULED TRIAL The July 2020 trial was vacated due to the COVID-19 pandemic. The third scheduled trial was set for May-June 2021, despite earlier availability in 2020.

COVID-19 Global Pandemic Delay: July 4, 2020 – June 4, 2021

[11] On January 15, 2020, a three-week jury trial was scheduled for July 6 to July 24, 2020. On June 16, 2020, those trial dates were vacated due to the COVID-19 global pandemic. On July 4, 2020, a new trial was set for May 17 to June 4, 2021.

[12] I find that a total delay of 10 months and 12 days will ensue between the scheduled 2020 and 2021 trial dates.

[13] Crown counsel takes the position that this entire period should be considered exceptional because the cause of this delay is the COVID-19 pandemic. As such, 10 months and 12 days should be deducted from the global delay.

[14] The Applicant does not dispute that the COVID-19 pandemic is an exceptional circumstance. Notwithstanding this, he argues that a delay of 10 months and 12 days is unreasonable and that only a portion of that delay should be deducted from the overall timeline.

[15] On March 11, 2020, the Director-General for the World Health Organization declared COVID-19 to be a global pandemic and advised countries to take urgent and aggressive action. On March 17, 2020, in response to this, the Premier of Ontario declared a state of emergency in Ontario, resulting in the closure of all non-essential businesses. Two days prior, on March 15, 2020, Chief Justice Morawetz of the Superior Court of Justice had issued an order adjourning all criminal matters scheduled between March 17 and June 2, 2020, except for urgent matters.

[16] From that day to the present, the Ministry of the Attorney General, along with all justice participants, have been working tirelessly to create a safe environment in which to conduct criminal trials and other matters. The task has been overwhelming, to say the least, and the landscape is constantly shifting. Despite enormous challenges, protective protocols and procedures have been developed. Criminal matters and trials, after a brief suspension, have been able to proceed both remotely and in person.

[17] Due to the large number of participants required, jury trials have proved to be particularly difficult to adapt. The safety and well-being of all participants is the priority. By September 2020, Toronto was one of the few jurisdictions in the country that was able to provide a safe environment in which to conduct jury trials. A handful of jury trials did proceed, and they were all completed safely; the new system was working. Unfortunately, by late October 2020, the Government of Ontario implemented new restrictions in Toronto in response to an increase in COVID-19 cases. Jury trials were once again suspended. It is not yet known when jury trials will resume.

[18] These events, which started in March 2020 and profoundly impacted our criminal justice system, are unprecedented in living memory. To date, 97,371 people have been infected by COVID-19 in Ontario and 3,408 have died. I find that the 10-month, 12-day delay of the Applicant’s trial is a direct result of the COVID-19 global pandemic. The adjournment was protective and necessary. To have proceeded in the face of this global pandemic at any earlier occasion would have been to risk the health and well-being of all those involved.

[19] The COVID-19 global pandemic is a discrete event that caused what can only be defined as exceptional circumstantial delay. The onset of the pandemic was unforeseen and unprecedented. In spite of that, the response by the Ministry of the Attorney General and all justice participants has been nothing short of impressive. It must be remembered that this is not the only case that was adjourned. The entire criminal justice system was suspended for a period of time. The whole system was competing for resources, but this was not simply a matter of money. The system had to be re-designed: protective measures were put in place, new protocols and procedures were developed, and larger offsite venues were acquired to accommodate and ensure the safety of jury panels.

[20] I am satisfied that all reasonable steps to mitigate this delay were taken. Accordingly, the entire 10 months and 12 days will be deducted from the overall delay of 40 months and 19 days, resulting in a total delay of 30 months and 7 days.

Defence Funding Delay: April 23, 2019 – October 11, 2019

[21] On April 23, 2019, the Applicant made his first appearance in the Superior Court following the preliminary hearing. He had no counsel and had not yet made an application to Legal Aid. Five months and 18 days later, after 10 appearances in the Superior Court, the Applicant had obtained funding, retained counsel, and was ready to proceed to the judicial pre-trial.

[22] The following is a summary of the Applicant’s appearances in the Superior Court leading up to the judicial pre-trial on October 15, 2019:

• April 23, 2019 – the Applicant makes his first appearance in the Superior Court. He does not have counsel. He explains that he can no longer afford the counsel that represented him at the preliminary hearing and that he is not financially eligible for Legal Aid. After some back and forth, it becomes clear that the Applicant has not yet made an application to Legal Aid. The Court instructs him to do so. The matter is adjourned to May 1, 2019, when a Legal Aid representative will be present in the courthouse.

• May 1, 2019 – the Applicant has not yet made a formal application to Legal Aid. The Court instructs him to do so and the matter is adjourned to May 15, 2019.

• May 15, 2019 – the Applicant advises that he applied for Legal Aid and the application was refused. He says he filed an appeal, but Legal Aid had not received it yet. On this day, a Legal Aid representative is present and able to assist immediately.

• May 29, 2019 – the Applicant advises the Court that his Legal Aid appeal was denied. He is instructed to make a second appeal.

• June 12, 2019 – the Applicant’s second appeal to Legal Aid has been denied. The Court recommends that the Applicant apply to the Rowbotham Pilot Project and indicates that the application will take approximately 30 days.

• July 17, 2019 – the matter has been set down for a self-represented judicial pre-trial. The Applicant, however, tells the Court that he has obtained a lawyer to assist him with the Rowbotham Pilot Project application. He indicates that he signed a consent form requesting that Legal Aid send his file to counsel on July 8, 2019 and that counsel received the file on July 16, 2019. The Applicant plans to meet with counsel after his appearance in Court that day.

• July 31, 2019 – the Applicant is still waiting to hear the outcome of his application to the Rowbotham Pilot Project. The Applicant says that his counsel should have a decision in the next week. The Court tells the Applicant to canvass judicial pre-trial dates with his counsel and that the matter needs to keep moving.

• August 7, 2019 – the Applicant is still waiting for a decision on funding. Crown counsel indicates that he will reach out to defence counsel to discuss dates for a judicial pre-trial.

• August 14, 2019 – the Applicant says that his Rowbotham Pilot Project application was denied on August 11, 2019. He now wants to pursue funding via a traditional Rowbotham application. His counsel expects to file the application next week.

• August 28, 2019 – the Applicant appears. October 15, 2019 is set for the Rowbotham application.

• October 15, 2019 – Counsel attends Court and withdraws the Rowbotham application on the basis that the Applicant entered into a Confidential Funding Agreement with the Ministry of the Attorney General on October 11, 2019.

[23] Both parties agree that the five months and 18 days it took the Applicant to secure funding was legitimate and is not a defence delay that should be deducted.

[24] Crown counsel argues that, despite the legitimacy of the applications, they amount to a discrete event that should be characterized as an exceptional circumstance and deducted from the overall timeline.

[25] The Applicant opposes that characterization. He argues that these types of procedures were accounted for when the ceiling was set in Jordan and the ensuing delay should not be deducted from the overall timeline.

[26] In this case, although there is no allegation of “foot-dragging” by the Applicant, the four funding applications that were pursued took considerable time. The Supreme Court of Canada accounted for these types of procedures when setting the presumptive ceiling, but also recognized that this is not an exact science where every possible circumstance can be anticipated. Moreover, I do not interpret Jordan as suggesting that a legitimate procedure and an exceptional circumstance are mutually exclusive. In my view, the analysis is a contextual one.

[27] Crown counsel argues that the circumstances of these funding applications are exceptional. I am inclined to agree.

[28] The Applicant appeared in the Superior Court for the first time 41 days after being committed for trial in the Ontario Court of Justice. He had privately retained a lawyer for the preliminary hearing. At the completion of the preliminary hearing, the Applicant’s funds were exhausted. In many such situations, counsel remains available to assist with new funding applications and/or to allow for a smooth transfer of the file. That was not the Applicant’s experience. In this case, defence counsel at first instance actually closed his practice and was not available to assist or advise the Applicant. I find that, as a result, the Applicant was left without guidance, which accounts for why, 41 days later, he appeared in the Superior Court having made no inquires to Legal Aid or any attempt to educate himself about other avenues of funding. To be clear, this is a statement of fact, not a criticism.

[29] The Crown and the Court had no notice of the Applicant’s situation prior to his first appearance on April 23, 2019. Once it became clear that the Applicant had not made a Legal Aid application, the Court and the Crown did everything within their power to educate and assist him. Further, all efforts were made to keep the matter moving forward, including having the Applicant return on Wednesdays so that he would have the assistance of an on-site Legal Aid representative.

[30] Despite best efforts, things went slowly. I am mindful that, because of a language barrier, there was from time to time some confusion on behalf of the Applicant. Although the Court and the Crown were careful on each appearance to ensure that the Applicant fully understood what next steps were required of him, this confusion is completely understandable. The system can be difficult to manage at the best of times.

[31] The Applicant pursued four different funding applications in total: (1) a Legal Aid application, including two appeals; (2) a Rowbotham Pilot Project application; (3) a Rowbotham application; and (4) a Confidential Funding Agreement. Each application had its own unique process, and each took considerable time to complete. I do not accept the Applicant’s position that the Rowbotham Pilot Project application took an inordinate amount of time. From the point of filing until the refusal, the process took less than one month and was, in my view, reasonable.

[32] I find that this situation falls squarely within the ambit of an exceptional circumstance as defined by the Supreme Court of Canada in Jordan. The Crown could not have anticipated that the Applicant would not have counsel and would pursue four separate funding applications. Moreover, it is abundantly clear on the evidentiary record before me that the Crown was aware of the delay that was accumulating and took all reasonable steps to mitigate it. Notwithstanding the legitimacy of these funding applications, I find that at least a portion of the delay attributable to this discrete event must be deducted from the overall time. Accordingly, three months will be deducted from the overall time of 30 months and 8 days, resulting in 28 months and 8 days of delay.

[33] The final step in the analysis allows the Applicant to demonstrate that the delay is unreasonable even if it falls below the presumptive ceiling. To do so, the Applicant must establish: (1) that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have. Absent these two factors, the application must fail: Jordan, at para. 82.

[34] On the record before me, the Applicant made every effort to keep the matter moving forward, notwithstanding some lags along the way. The Crown did not argue otherwise.

[35] The Applicant submits that this is a straightforward case and that anything close to the presumptive ceiling of 30 months of delay is unreasonable. I disagree. Although I am not privy to the details of this case, I do know that it is set down for a three-week jury trial in the Superior Court of Justice. I also know that there are two complainants and a pending severance application, which suggests that this is a case of some significance and gravitas. Under the circumstances, I do not find 28 months of delay to be unreasonable.

Summary

[36] After a thorough review of the law, the materials, the submissions of counsel, and the unique circumstances that attach to this case, I find that 28 months and 8 days of delay in bringing the Applicant to trial does not amount to a breach of his s. 11(b) rights.

[37] Accordingly, the application is dismissed.

Byrne J.

Released: November 16, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARCO GUTIERREZ

Applicant

REASONS FOR JUDGMENT

APPLICATION UNDER s. 11(b) of the Canadian Charter of Rights and Freedoms

Byrne J.

Released: November 16, 2020

R. v. Gutierrez, 2020 ONSC 6810

Case Summary

REASONS FOR JUDGMENT

APPLICATION UNDER S. 11(B) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Introduction

Analysis

COVID-19 Global Pandemic Delay: July 4, 2020 – June 4, 2021

Defence Funding Delay: April 23, 2019 – October 11, 2019

Summary

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 1