COURT FILE NO.: CR-19-40000575
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NASHON SIMMONS
Applicant
Patrick Clement, for the Respondent
Richard Fedorowicz, for the Applicant
HEARD: November 13, 2020
JUSTICE S. NAKATSURU
[1] Mr. Simmons applies to have his criminal charges stayed. He argues it has taken too long. That his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms has been violated.
[2] Mr. Simmons allegedly committed crimes on July 30, 2017. The charges are assault with a weapon, uttering a threat, point a firearm, use a firearm while committing an indictable offence, and possession of a firearm without a license.
[3] An important fact about the history of this case is that Mr. Simmons also faced other charges along with some co-accused arising out of his arrest on August 2, 2017, for the July 30th incident. These charges were about the possession of a prohibited firearm. The two sets of charges, (henceforth July 30th and August 2nd charges) were joined together by the Crown prior to the preliminary inquiry. After committal to the Superior Court of Justice, Mr. Simmons brought a severance application to sever these two sets of charges. He was successful. The August 2nd charges were heard first in November 2019. The July 30th charges have yet to be tried. His jury trial is set to begin January 11, 2021, over 40 months from the date he was first charged.
[4] The Supreme Court of Canada has held that jury trials should normally take less than 30 months to complete. Mr. Simmons’ trial will not.
[5] The key issues on this application are: (1) how much delay is defence delay, caused by counsel’s unavailability; (2) how much delay was caused by the exceptional circumstance of the COVID-19 public health crisis; and (3) even if the operative delay is below 30 months, has Mr. Simmons shown the delay is nonetheless unreasonable.
A. ANALYTICAL FRAMEWORK
[6] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, sets out the framework for analysis in determining a s. 11(b) violation:
(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;
(2) Subtract defence delay from the total delay, which results in the "Net Delay";
(3) Compare the Net Delay to the presumptive ceiling;
(4) 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 it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(5) 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;
(6) 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;
(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
See R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34 – 41.
B. ANALYSIS
1. Total Delay
[7] The information was sworn August 30, 2017.[^1]
[8] The trial is presently set to begin January 11, 2021 and is expected to last five to seven days.
[9] The total delay from the date the information was sworn to the anticipated end of the trial is three years, 4 months, and 16 to 18 days; or 40 months and 18 to 20 days. I will round up to 40 months and 20 days for the purpose of this application.
2. Net Delay: Subtract Defence Delay
[10] Net delay does not include: (1) time periods that are waived; and (2) defence-caused delay. The latter involves “those situations where the accused’s acts either directly caused the delay … or the acts of the accused [that] are shown to be a deliberate and calculated tactic employed to delay the trial”: Jordan at paras. 60 – 66.
[11] In this case, the defence did not expressly waive any time periods.
[12] Defence-caused delay is contentious. Three periods of time are in issue.
a. The Time Period April 23, 2019 to May 14, 2019: Alleged Delay Due to Filing the Severance Application
[13] A judicial pre-trial was conducted in the Superior Court of Justice on February 19, 2019. On that court appearance, the trial date of November 12, 2019, was set for a 10-day jury trial. The defence advised that it was considering a severance application and the parties were working out the process for it. On the following remand date of March 26, 2019, the defence confirmed that it would bring such an application and asked for April 23, 2019, as the next remand date. The defence said materials would be filed by that date. They were not. The defence did not file materials until May 14, 2019. On that appearance, September 18, 2019 was set down for the hearing of the severance application.
[14] The Crown submits that the time period from April 23, 2019—when the defence was to file severance material—to May 14, 2019—when the defence finally did—should be deducted as defence delay. On April 23, 2019, the court and the Crown were ready to set a date for the hearing of the severance application but the defence, by its failure to file materials as agreed to, was not. Consequently, it is argued, the defence should bear the responsibility for this delay.
[15] I can readily dispose of this argument. The defence failure to file materials by April 23rd caused no delay in the trial. The trial dates had already been set by then. The defence inaction did not affect those trial dates.
[16] Additionally, I am not persuaded that the Crown has shown this failure to file the severance materials earlier had any effect on the delay subsequent to November 12, 2019. The Crown argues that, had the defence met its commitment, an earlier severance hearing date could have been obtained. In other words, had the severance application been heard earlier, the court would have had more options in scheduling the severed trial including, perhaps, offering a trial date earlier than November 12, 2019. In my opinion, this position is rather speculative. My conclusion that the defence did not cause any delay is unaffected. That said, this failure by the defence to reasonably move the case along is not totally irrelevant to this application as I will later explain.
[17] Thus, this period of time will not be deducted from the total delay.
b. The Time Period November 25, 2019 to February 10, 2020: The Delay of the Trial After Severance
[18] On September 18, 2019, Justice B. Allen granted Mr. Simmons’ severance application. The July 30th charges were severed from the August 2nd charges. On that day, counsel attended at the trial coordinator’s office to schedule new trial dates. The trial date of November 12, 2019 was kept for the August 2nd charges. For the July 30th charges, a new trial date had to be scheduled. Both court and Crown were available for trial as early as November 25, 2019. The defence was not. The earliest the defence was available was February 10, 2020. March 16, 2020, was selected as the new trial date. This seven-day trial was confirmed in court on October 16, 2019.
[19] The Crown submits that the time period November 25, 2019 to February 10, 2020, should be deducted as defence-caused delay. Both Crown and court were available and ready to proceed on that day. Defence counsel was not available during this time.
[20] Mr. Simmons argues that this time period should not count as defence delay. He submits that to expect defence counsel to be available across seven consecutive days that starts on a Monday after his first set of charges of August 2nd is tried, is unreasonable. Mr. Simmons further submits that providing the singular November 25th trial date did not stop the s. 11(b) delay clock. In support of this, he relies upon the following passage in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23:
Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry—efforts which were ignored—suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”
[21] In my opinion, the authorities make it clear that defence delay happens when the court and the Crown are ready to proceed and the defence is not due to their unavailability: Jordan at para. 64; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55; R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794, at para. 3; Coulter at paras. 72 – 77; R. v. Balogh, 2020 BCCA 96, [2020] B.C.J. No. 448, at paras. 25, 29. That said, all the circumstances must be considered. Merely offering a single date where defence counsel is not available does not in every circumstance unconditionally equate to the beginning of defence delay: Godin, at para. 23; R. v. Cowell, 2019 ONCA 972, [2019] O.J. No. 6284, at para. 32; R. v. Ameerullah, 2019 ONSC 4537, [2019] O.J. No. 3975, at paras. 28 – 30.
[22] R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892, demonstrates the proper approach. Both Mr. Simmons and the Crown have relied on this authority. In Albinowski, the Crown appealed a stay granted under s. 11(b). The case involved three co-accused charged with criminal conspiracy to smuggle 10 Polish nationals into Canada. The trial was scheduled for five weeks. A lengthy preliminary inquiry was conducted in the Ontario Court of Justice over several days. The total delay was nearly 40 months. The main issue on appeal was what constituted defence-caused delay.
[23] Roberts J.A. found that the trial judge had mischaracterized delay due to defence counsel’s unavailability to set earlier dates for judicial pre-trials and the preliminary inquiry as institutional delay. She held that this was defence delay. When properly assessed, after deducting the defence-caused delay, the case fell below the presumptive ceiling. Thus, the Crown appeal was allowed.
[24] In that case, like here, the defence relied upon the observation in Godin that defence counsel need not hold themselves in perpetual availability for the purpose of scheduling steps in a proceeding. It was submitted that the defence was therefore not required to accept the first available date offered. In dealing with this argument, Roberts J.A. first disagreed with the carte blanche Crown argument that Jordan had overtaken Godin and the latter was no longer good law. However, nor did she simply agree with the defence and the trial judge’s reliance on the dicta in Godin. Rather, Roberts J.A. distinguished Godin on the basis that, in that case, the comments made by Cromwell J. were made in the context of the Crown being responsible for the need to reschedule a preliminary inquiry date and the attempts made by the defence to expedite the proceedings. Those facts did not exist in Albinowski at paras. 28 – 33. Similarly, those facts do not exist in the case before me.
[25] In addition, Mr. Simmons relies upon that portion of the judgment where Roberts J.A. stated the following at para. 46:
Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. It is necessary to consider the circumstances of this case.
[26] Mr. Simmons argues that this passage supports his contention, just as the dicta in Godin emphasized, that merely offering a date does not suffice to thereafter stop the delay clock.
[27] I do not agree.
[28] In my view, this comment must be read in context. Noteworthy is that Roberts J.A. did ultimately conclude that the defence delay commenced at the first date offered for the preliminary inquiry. What she was referring to in this passage may well be no more than the rejection of the Crown argument that “all” the delay following the first date offered should be defence delay. This would have included the time period when the preliminary inquiry was conducted. Roberts J.A. declined to do so. She therefore did not include that time period in her assessment of the length of the defence delay.
[29] Regardless of exactly what is specifically being referred to in that single passage, one would be hard pressed to dispute that the circumstances of each individual case must be analyzed to determine what amounts to defence delay. When her reasons are considered, it seems to me that Roberts J.A. was not inclined to take any absolutist position in determining defence delay. In most cases, in my view, the offering of a single date where the Crown and the court are available but defence counsel is not, will constitute the beginning of defence-caused delay. In other cases, it may not. This is especially so in prosecutions involving joint accused: R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625; R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963; Albinowski; R. v. Brissett, 2019 ONCA 11, [2019] O.J. No. 137, at paras. 15 – 16; R. v. Pauls, 2020 ONCA 220, [2020] O.J. No. 1186, at paras. 50 – 54.
[30] Mr. Simmons argues it was reasonable that his defence counsel was unavailable for trial on November 25th. He submits that it was the Crown’s decision to join the two informations together that led to the severance application and the subsequent requirement that two separate trial dates be scheduled. It is further submitted the defence needed time to prepare for the second trial. It was unrealistic to expect he could do so over a weekend. Moreover, it is submitted that Mr. Simmons needed a reasonable break before being tried on consecutive matters.
[31] I am not persuaded by these arguments for the following reasons.
[32] First, what is required by s. 11(b) is reasonable availability and cooperation. It is by this yardstick that I must measure defence conduct. The context of this case is significant. When the November trial date was originally set on February 19, 2019, the time estimated for the jury trial, 10 days, took into account the need to try both sets of charges. In addition, when those trial dates were initially set, the defence had already intended to bring a severance application. This was not an afterthought. If the severance application was successful, all parties should have reasonably expected that a second trial date would have to be quickly accommodated. The additional trial date would have to be scheduled with reasonable dispatch and within a relatively short window. The case was already coming up to the presumptive ceiling, which was January 30, 2020. When the charges were severed, the court and the Crown both responded, in spirit and action, to the requirements of s. 11(b), offering a trial date immediately after the initial trial dates scheduled for November. The defence did not. The defence was only available at a time after the Jordan presumptive ceiling had passed. This was a period of over two months. Given this, whether the court or the Crown could have offered other dates shortly after November 25th was not material. The defence was simply unavailable for this trial until February 10th. I find this was neither reasonable availability nor reasonable cooperation on the part of the defence.
[33] Moreover, it was not unreasonable to expect some defence availability shortly after the November 12th trial had finished. As I have noted, the original time estimate for the two sets of charges was 10 days. I appreciate that having two jury trials rather than one will involve greater time. However, once the July 30th charges were severed, the trial dealing with the August 2nd charges should have taken less time to complete. Defence counsel had already committed himself to Mr. Simmons’ trial for 10 days. If the first trial ended early, the second trial could have commenced even before November 25th. Furthermore, jury trials commonly end up taking longer than they are originally estimated for. Counsel are expected to make themselves available until completion even if this means re-arranging their other engagements. Thus, it is not unreasonable to have expected defence counsel to either be available or to be able to make himself available into the week of November 25th.
[34] Jordan imposes an obligation on all actors, including defence counsel, to alleviate the delays in the criminal justice system. This clear and distinct message to take proactive measures was recently underscored in R. v. Thanabalasingham, 2020 SCC 18, [2020] S.C.J. No. 18, at para. 9. This obligation is necessary to battle the culture of complacency. This battle means that greater effort and flexibility must be expended in trial scheduling, even for very busy defence counsel: Albinowski, at para. 50. This did not happen here.
[35] I do not wish to be thought to say that the defence should have been forced to take the offered November 25th trial date. Defence counsel may have been unable to given his other professional commitments. However, in light of these case-specific facts, to characterize this time period as defence-caused delay due to unavailability of counsel is not wrong or unjust.
[36] Second, I appreciate that in Jordan at para. 65, Moldaver J. cautions that defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. An example of this is the need for defence preparation time, even if the court and the Crown are ready to proceed. In my opinion, the delay from November 25, 2019 to March 16, 2020, does not fall into this category. There is no evidence that the defence was not ready to proceed with the July 30th charges on November 25, 2019. Nor can it reasonably be argued that it was not. The defence had litigated both sets of charges on the basis they would be heard together from nearly the commencement of the proceedings. There was a preliminary inquiry on both sets of charges. The severance application was not guaranteed to succeed. If unsuccessful, the defence would have been expected to litigate both sets of charges on November 12th. Even after the successful severance application, a couple of months remained before November 25th for the defence to prepare. In oral submissions, defence counsel candidly conceded that this argument was not a hill he was prepared to die on.
[37] Third, while I am sympathetic to any accused wishing to have a break between two trials, this does not change matters. I have no specific evidence from Mr. Simmons about this. I do not know anything about his individual personal circumstances at the time. If I did, this might add greater force to the argument. But even if Mr. Simmons felt this way at the time, I am not persuaded this is an important factor. Any trial is stressful and difficult for an accused. However, originally, Mr. Simmons would have expected to face both sets of charges in a single trial. Having two consecutive separate trials, particularly of their nature and length, would not be much more difficult for him. Moreover, whatever extra hardship or stress the two consecutive trials might cause him, this must be balanced against the right of Mr. Simmons to a trial within a reasonable time and the public’s interest in the same.
[38] Fourth, I accept that the Crown’s initial decision to join the two sets of charges together led to the severance application. However, to put it in the pre-Jordan terminology, this does not make it “Crown delay.” While the severance application was successful, on this record, I have no reason to conclude that the Crown’s decision to join the two charges was anything but a due exercise of prosecutorial discretion. While I accept and respect the finding of the severance application judge that there was no legal or factual nexus between the two sets of charges, a reasonable basis remained for the Crown to join them. I note that the two charges dealt with events close in time. Mr. Simmons is charged with pointing a firearm on July 30, 2017 and then, two days later, he is found with a firearm.[^2] Moreover, as I read the judge’s brief reasons for ordering severance, she considered it important to granting severance that Mr. Simmons desired to testify on one set of charges but not the other.
[39] In my opinion, both Crown and defence are permitted to take legitimate steps in litigating a criminal case. In doing so, such actions should not attract undue prominence in the characterization of defence delay.
[40] Finally, all these reasons now being put forward—the need to prepare, the applicant’s desire for a break, or the Crown’s decision to join the charges—are not the true reasons why the trial could not have commenced on November 25th. Defence counsel’s unavailability until February 10, 2020, was the true reason. As such, it must be deducted from the total delay to avoid the defence from benefiting from its own delay-causing conduct. This is not a normative judgment about the defence’s actions. Rather, it is simply a matter of appropriately assessing the time periods to determine whether the presumptive ceiling has been breached.
[41] Moving forward in time, this period of defence delay ends on February 10, 2020, when defence counsel indicated on the trial confirmation form that he was available. The court or Crown was not available. The trial confirmation form does not say which. Regardless, any delay subsequent to that date was not caused solely by the action or inaction of the defence: Jordan at para. 123. The Crown does not submit otherwise. Thus, the amount of time to be subtracted is November 25, 2019 to February 10, 2020: a period of 2 months 16 days of defence delay.
c. The Time Period September 28, 2020 to the January 11, 2021: Alleged Defence Delay After Being Offered an Earlier Trial Date of September 28, 2020
[42] The trial date of March 16, 2020, was adjourned because of the COVID-19 public health crisis. A new trial date had to be set. Since the pandemic, trial dates have not been scheduled as they had pre-pandemic. They are not done through in-person attendances. Matters are spoken to remotely. The process by which Mr. Simmons set his new trial date is not crystal clear. However, with the parties’ most commendable cooperation, I have been able to conclude several things.
[43] Pursuant to the order of the Chief Justice of the Superior Court of Justice, Mr. Simmons’ March 16, 2020 trial, like many other cases, was adjourned to June 2, 2020. On June 2, 2020, the case was spoken to before Justice McWatt. On that date. the Crown put on the record that the January 11, 2021 trial date, was agreed to and that there would be a s. 11(b) application.
[44] The background information provided to me reveals what took place outside of court. In the application record is a trial confirmation form prepared by the trial coordinator dated May 21, 2020. On the form, the trial date is set for January 11, 2021. The form states that the first available date for the Crown was September 28, 2020. The first available date for the defence was July 20, 2020. The first date available for the court is not filled in.
[45] On this application, both parties have agreed that the Administrative Crown, Ms. Allison Macpherson, had received a number of slots from the trial coordinator in May of 2020. She then attempted to schedule matters accordingly. With respect to Mr. Simmons’ case, on May 19, 2020, at 11:18 a.m., she wrote to defence counsel the following email:
Dear Richard,
I hope all is well with you and yours in these scary times.
Justice McMahon has made arrangements for us to start rescheduling trials in advance of July – using a virtual court.
I have some dates in the fall – and early in the new year.
Perhaps you could call me today and we could identify a date for Mr. Simmons next trial and I can explain the process they are using to set the dates (it’s slightly complex but it’s better than sitting around waiting for July)
I am reaching out to Mr. Simmons 1st as he has high priority.
Kindest regards,
Allison MacPherson [phone number edited]
[46] It is agreed that September 28, 2020, was the first court date available to the Crown and the court. It is also agreed that defence counsel received this email but did not reply to it. Mr. Simmons’ position is that his response was effectively the trial confirmation form of May 21, 2020.
[47] To complete the record, the Crown sent another email to defence counsel on July 7, 2020. This email reads:
Hello Richard,
I hope you and your family are keeping healthy in this New World we have had thrust upon us.
On a more prosaic note: The Nashon Simmons trial is now set for January 11, 2021. Two weeks starting on November 16, 2020 are now open. The Crown is available. Are you and your client also available?
Please let me have your response as soon as possible, given the defence position that a stay due to delay is being pursued.
My cell is [edited].
Yours truly,
Barry Stagg
[48] Again, both parties have agreed to the following. While this email was sent to defence counsel, it was sent to an email address that defence counsel no longer checked. Defence counsel had more than one valid email address. At some point in time, he decided to stop using the email address the email was sent to. The applicant only recently became aware of the existence of this email. As a result, defence counsel did not respond to it.
[49] The Crown submits, based upon this history, the defence caused the delay from September 28, 2020 to January 11, 2021. Defence counsel was not available for these dates when both the Crown and the court were.
[50] The defence submits that it should not be saddled with this time period. Counsel submits that only the singular date of September 28th was offered. He again relies upon the same argument based upon Godin.
[51] In assessing this question, I must make some factual findings. Based upon the record and the agreement of the parties, I find that the Crown and the court were available on September 28, 2020, for this trial. This was the first available date. Given Ms. MacPherson’s email, the Crown was giving Mr. Simmons’ trial priority. The defence offer of July 20, 2020 for trial was not realistic. There were no jury trials being held during that time due to the pandemic. The court only began hearing jury trials on September 16, 2020.[^3] While the record is not explicit, given the trial confirmation form and the subsequent court proceeding on June 2,2020, I conclude that it was defence counsel’s unavailability from September 28, 2020 that lead to the January date being chosen. Given the context that the defence was already of the view that s. 11(b) had been violated and no doubt would have given Mr. Simmons’ trial precedence, just as the Crown did, if defence counsel could have picked an earlier date once jury trials recommenced, he would have.
[52] Based upon this finding, I find merit in the Crown position that the time period from September 28, 2020 to January 11, 2021 should be deducted as defence delay. Again, the court and the Crown were ready to proceed and the defence was not. While it seems a single date of September 28, 2020 was offered, the defence was simply unavailable for a substantial number of months until January of 2021. In the context of Mr. Simmons’ claim that his right under s. 11(b) was being ignored and the impact of the COVID-19 pandemic on the court system, this unavailability was not reasonable.
[53] This conclusion is supported by Malozzi. First, in that case, the Ontario Court of Appeal found it immaterial that, when setting a preliminary inquiry date, defence counsel had offered earlier dates when the court and the Crown were not available. The court concluded, based on Jordan, that defence delay started when the court and the Crown were ready to proceed and the defence was not. Likewise, in this case, the defence offer of availability on July 20, 2020 should be treated in the same fashion. Second, in Malozzi, a co-accused had secured an adjournment of the initial preliminary inquiry. In response, the Crown opened up its priority in-custody dates to accommodate the earliest possible dates to reschedule the preliminary inquiry. These dates did not coincide with defence counsel’s schedule. The trial verification form demonstrated that there were some three months between the earliest dates offered and the defence counsel’s availability to reschedule the preliminary inquiry. Although the defence maintained it was ready to proceed on the original preliminary inquiry date and that he should not be visited with consequences of his co-accused’s actions, this argument left the Ontario Court of Appeal unconvinced. By the time new dates were set, the co-accused had pleaded guilty. The court determined it was unnecessary to resort to the exceptional circumstance involving multi-accused trials. Rather, the court simply concluded that given new dates were offered where the Crown and the court were ready to proceed and the defence was not, this was defence delay. Similarly, in the case before me, the Crown offered an expeditious date given the special circumstances created by the pandemic. This was not accepted by the defence. Thus, this time period can also be properly characterized as defence delay.
[54] While I believe this to be the right analysis, as I will go on to show, whether or not this time period is counted as defence delay, it would be deducted as an exceptional circumstance.
[55] If this time period is counted as defence delay, a further 3 months and 14 days should be deducted from the total delay.
d. The Calculation of the Net Delay
[56] Based upon the deduction of the time period November 25, 2019 to February 10, 2020, the net delay is 38 months 4 days.
[57] If I further deduct the time period September 28, 2020 to January 11, 2021, the net delay is 34 months 20 days.
[58] Either way, the net delay is above the ceiling of 30 months. The delay is presumptively unreasonable.
3. Subtract Discrete Event from Net Delay: the COVID-19 Public Health Crisis
[59] The only exceptional circumstance the Crown seeks to establish is the discrete event of the COVID-19 public health crisis. The original trial date of March 16, 2020 was adjourned as a result of the world-wide pandemic. The new trial date of January 11, 2021 was set on June 2, 2020.
[60] While the Supreme Court of Canada in Jordan unlikely had in mind such an unprecedented event, there is no doubt that the COVID-19 public health crisis amounts to a discrete event. No reasonable person could contend otherwise.
[61] The more contentious issue is how much time should be attributed to this discrete event.
[62] The Crown submits that all the time, from the adjournment of the March trial date to the new trial date of January 11, 2021, should count as delay caused by the discrete exceptional event.
[63] Mr. Simmons submits that not all of it should. He submits that March 16, 2020 to September 14, 2020, can be attributed to the exceptional circumstance. Mr. Simmons argues that the period of this discrete event ends when the Superior Court of Justice in Toronto Region ended the suspension of jury trials due to COVID-19 and began scheduling them. This officially started September 14, 2020.
[64] In analyzing this issue, I must be careful about exactly what period of delay should be deducted from the net delay. In Jordan, Moldaver J. acknowledged that there are limits to what delay can be justified by a discrete event. He said at para. 75:
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. 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). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).
[65] This obligation is consistent with the more general requirement that exceptional circumstances exist only where the Crown cannot reasonably remedy the delay from the circumstances when they arise.
[66] In support of his position, Mr. Simmons relies upon R. v. Drummond, 2020 ONSC 5495, [2020] O.J. No. 3908, a decision by Cavanagh J. Although Cavanagh J. dismissed a s. 11(b) application by the defence, in the course of his analysis he was called upon to assess the time period caused by the discrete event of the COVID-19 public health crisis. Justice Cavanagh referred to the order made by the Chief Justice of the Superior Court of Justice dated March 15, 2020, that all appearances in court from March 17, 2020 to June 2, 2020, were to be adjourned. Mr. Drummond’s case was still in the Ontario Court of Justice in April 2020. The Crown then brought a direct indictment. Eventually, on June 23, 2020, a jury trial was set for April 6, 2021, which was the first-available trial date. In calculating the length of delay that should be attributed to COVID-19, Cavanagh J. held it should be from June 2, 2020 to September 2020. This was the period of time in which jury trials were not being conducted. Justice Cavanagh did not include the time from September 2020 to the new trial date of April 6, 2021 as a part of the delay caused by COVID-19.
[67] Mr. Simmons submits that I should take the same approach. In other words, the discrete event exceptional circumstance should only be from March 25, 2020 to September 2020. It should end when the courts were again scheduling jury trials.
[68] With great respect, I do not think this is the right approach. In my view, the length of delay attributable to the COVID-19 public health crisis discrete event should be from March 16, 2020 to January 11, 2021. The whole time period to the new trial date should count. I conclude this for several reasons.
[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.
[74] Finally, in order to qualify as a discrete event, the Crown must show it could not have reasonably mitigated the delay. The Crown cannot sit idly on their hands when rescheduling the backlog created by COVID-19—at minimum, thoughtful triage of trials is expected. In this case, the Crown was proactive. So, too, was the court. The emails to the defence showed that the Crown did try to reasonably mitigate the delay. The Crown recognized the impact of the delay on Mr. Simmons’ s. 11(b) guarantee. The Crown gave the case priority. The Crown tried to secure early dates, something that given the unique situation posed by the pandemic, was not likely easy to do. The Crown, with the help of Justice McMahon, the Criminal Team Leader of Toronto Region, Superior Court of Justice, offered a September 28, 2020 trial date. This was within a couple of weeks of jury trials being heard again in Toronto. Defence counsel unavailability precluded securing this early date. Then, even once the January trial date was set, the Crown reached out to the defence with the offer of an earlier date in November. I appreciate the applicant’s point that perhaps the Crown could have done more to follow up on that email given the lack of response from the defence. That said, I find it reasonable for the Crown to have assumed that the email had reached defence counsel. He was unaware that this email address—which was still valid—was no longer being used by defence counsel. When no reply was received, given defence counsel’s position regarding his unavailability until 2021, it was not unreasonable for Crown counsel to assume the lack of a response meant the defence was not taking up the offer.
[75] From the defence side, as reasoned above, I have found that the portion of time from September 28, 2020 could be characterized as defence delay. However, I recognize securing new jury trial dates amidst an ongoing pandemic is no doubt as much a challenge for the defence as for the Crown or the court. COVID-19 has put enormous pressure on us all. Thus, I will say that it would not be wrong, in my view, to characterize the post-pandemic delay not as defence-caused delay per se due to defence counsel unavailability, but as a result of this most exceptional discrete event that was reasonably unforeseen and unavoidable. It would not be wrong to attribute the whole period of delay to the COVID-19 public health crisis without parsing out the periods of delay.
[76] As said by many of our public health leaders, we are all in this together. We have done the best we can in the circumstances. Therefore, we should not be quick to cast blame or be overly critical of the actions of the criminal justice system or its participants as we continue to meet the challenges of getting trials heard amidst the ongoing pandemic.
[77] In summary, I find that the Crown has proven that the time period of March 16, 2020 to January 11, 2021 should be accounted for as a discrete event. This is a period of 9 months 26 days.
4. Complexity
[78] The Crown does not argue that complexity is an exceptional circumstance. I agree. I need not consider this.
5. Calculation of the Remaining Delay: Falls Below the Presumptive Ceiling
[79] The net delay is 38 months 4 days. After subtracting 9 months 26 days for the discrete event, the remaining delay is 28 months 8 days.
[80] I should add, in the alternative, if defence delay also included September 28, 2020 to January 11, 2021, the remaining delay would be the same: 28 months 8 days after deducting the discrete event which in this scenario would have run from March 16, 2020 to September 28, 2020.
[81] Either way, the case falls below the presumptive ceiling of 30 months.
6. Below the Presumptive Ceiling: the Defence has not Shown the Delay is Unreasonable
[82] Delay that falls under the presumptive ceiling may be unreasonable if the defence can demonstrate: 1) that it 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: Jordan, at para. 82.
[83] In my opinion, the defence has failed to show either.
[84] With respect to the latter criterion, this case has taken longer than it should have. But I find it was not “markedly” so. In the context where s. 11(b) applications under the presumptive ceilings are only to be allowed in the clearest of cases, the departure from what cases of this nature and complexity tried in this locale should reasonably take must be noticeably significant. Put another way, even if a trial took longer than it reasonably should have, this is not enough. It must be significantly longer.
[85] Taking a “bird’s eye” view, the case before me is simple and straightforward. The Crown readily concedes this. Were Mr. Simmons only facing these charges throughout, I would have not hesitated in concluding that this case, at 28 months, took markedly longer than it reasonably should have. But that is not the end of the story. The Crown married this case up with the August 2nd charges. That case was considerably more complex. It initially involved multiple accused. It involved a search warrant and the need to vet the ITO and disclosure. As the Crown submitted, when it came to joining the charges, it cannot now unring that bell. Appreciating that the Crown must bear the consequences of its decisions when they lead to delay, as I have already explained, the decision to join the two sets of charges cannot be reasonably criticized. I say this even though the severance application was successful.
[86] That said, disclosure took too long. Despite the need for vetting, it should not have taken nearly six months and numerous court appearances. Reading the transcripts of those appearances, this delay in the disclosure period strikes me as “markedly” longer and hints of complacency.
[87] However, this time period must be placed in the context of the rest of the history of the proceedings whereby the other steps in the process took place more smoothly and without any undue significant delay.
[88] At the end of the day, although it is a close call, I am not satisfied that this case took “markedly” longer.
[89] More significant to my decision is the second criterion. The following passage from Jordan adds more content to this part of the test at para. 85:
To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s.11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.
[90] In my opinion, the defence did not take meaningful and sustained steps to be tried quickly.
[91] I accept that defence counsel was not completely silent during the disclosure period. On occasion, counsel or an agent for Mr. Simmons’ counsel noted it was taking a long time to get disclosure and the defence was eager to move the matter forward. While I would not describe this as simply a “token” effort, it was not appreciably more. These were just brief comments made during routine court appearances. While unhappy with not obtaining disclosure, the defence did little to overtly pressure the Crown. No correspondence or messages to this effect have been placed before me. Moreover, at no point did the defence attempt to elicit the court’s assistance in getting that disclosure. Finally, before joining the two sets of charges, the July 30th charges were on a separate information. Thus, technically speaking, the fact the Crown was still vetting the search warrant materials on the August 2nd charges should not have prevented disclosure on the July 30th charges. The fact that the Crown intended to join the charges in a joint preliminary inquiry also did not pose an obstacle to disclosure on the July 30th charges. No one seems to have brought this fact to the attention of the court. Against this background, the little that the defence said during the whole disclosure process must be assessed. When I do, sustained and meaningful steps appear lacking. Indeed, it seems on a few court appearances, defence counsel or his agent was not even aware about these additional July 30th charges on the docket or, if they were, the charges were treated as an afterthought.
[92] After receiving disclosure, the defence has not shown it tried to have this case heard quickly, especially given that disclosure had already delayed the case. As already explained, defence counsel made scarce concerted efforts to make himself available for earlier dates offered by the Crown and the court. Even when the preliminary inquiry dates were set on March 23, 2018, the Crown noted on the record that dates a week earlier than January 10 and 11, 2019 had been offered, but defence counsel was not available.[^5] Until the defence brought the s. 11(b) application, there appears to have been a relative indifference to getting early trial dates. As far as I know, counsel did not revisit the issue once the trial was scheduled. This is not a sustained effort to have the case heard quickly.
[93] The defence failure to meet its agreed upon filing date of its severance application has more significance under this part of the analysis. To repeat, the defence did not file its materials on March 26, 2019 as counsel said he would. No explanation has been given why it was not. The severance application was not complicated. While this failure did not cause any delay, it could have been a meaningful step in securing an earlier hearing date. This, in turn, could have helped in getting an earlier second trial date if the application was successful. While it is speculative to conclude one could have been secured, this event still is an example of the defence attitude regarding the delay in the case. The defence knew that a successful severance application would have resulted in two separate trials. The existing one was pushing up to the Jordan ceiling. Given this, it is not unreasonable to have expected the defence to file its severance materials in a timely way if it was serious about getting both trials heard expeditiously.
[94] Looking at all the circumstances, the defence has not met its onus in showing the delay was unreasonable.
[95] The application is dismissed.
Justice S. Nakatsuru
Released: November 27, 2020
COURT FILE NO.: CR-19-40000575
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NASHON SIMMONS
Applicant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: November 27, 2020
[^1]: Mr. Simmons was arrested on August 2, 2017, for the July 30th incident. The information was not sworn until about a month later. There is no explanation on the record why. The applicant has not made an issue of this.
[^2]: In R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, the Ontario Court of Appeal held that evidence that the accused was in possession of a firearm 10 months prior to a shooting was admissible circumstantial evidence to show that the accused was more likely to be in possession of the firearm at the time of the shooting. A similar evidentiary link could be made here given a period of two days between July 30 and August 2, 2017.
[^3]: Since the suspension of jury trials in March 2020, the first jury in Toronto Region was picked at the Toronto Convention Centre on September 16, 2020.
[^4]: On that note, I observe that even if the parties had been able to secure the November 16, 2020 trial date, as indicated in the Crown email, it would have had to have been adjourned.
[^5]: The Crown has not suggested this one week should be characterized as defence delay