COURT FILE NO.: CR-19-1981
DATE: 20201217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Tyler Powell and Alexander Cornelius, for the Crown
Respondent
– and –
GURYODH KHATTRA
Applicant
Louis P.Strezos and Kaleigh Davidson, for the Applicant
HEARD: In writing and orally on December 15, 2020
RULING ON s. 11(b) CHARTER APPLICATION
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
J.M. Woollcombe J.
A. Introduction
[1] The applicant, Guryodh Khattra, brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay.
[2] Mr. Khattra is charged with the first degree murder of Paviter Bassi, alleged to have occurred on March 19, 2018. He was arrested and charged on March 21, 2018. His trial is scheduled to commence with a jury on January 11, 2021 and is anticipated to last until January 29, 2021. The total delay in the case is 34 months and 9 days, a delay over the presumptive ceiling of 30 months set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 for matters tried in the Superior Court of Justice.
[3] The issues to be decided are:
i) How much time should be deducted from the total delay as an exceptional circumstance flowing from the COVID-19 pandemic?
ii) Should any time be deducted from the total delay due to the complexity of the case?
iii) If the net delay is below 30 months, is a stay is warranted?
[4] At the request of the parties, this application was scheduled to be heard in writing. After reviewing the materials, I was left with questions for the parties and so, at my request, a brief conference call with counsel was convened on December 15, 2020. These reasons incorporate their submissions that day.
[5] For the reasons set out below, the application is dismissed.
B. The Allegations
[6] Rather than summarizing in detail the allegations against the applicant, I rely on the facts set out by my colleague Stribopoulos J. who heard a defence pre-trial motion and summarized the case against the applicant in his August 28, 2020 “Informer Privilege Ruling” (2020 ONSC 5164) at paragraphs 4-37. I have excerpted from that Ruling what appear to be the most important facts respecting the Crown’s case against the applicant, beginning at paras. 4-6:
[4] In the early evening of March 19, 2018, at an intersection in a residential neighbourhood in Brampton, three vehicles surrounded a pick-up truck driven by Paviter Bassi. After he was boxed-in, Paviter Bassi exited his pick-up truck and ran away from the intersection. Four men emerged from the three vehicles and gave chase.
[5] At approximately 5:49 p.m., Paviter Bassi ran onto the grounds of a highschool not far from the intersection. Surveillance video from the school captured from a distance what happened next. It shows four men pursuing Paviter Bassi, with one man eventually grabbing him and throwing him to the ground. All four attackers then surround Mr. Bassi and appear to be kicking and punching him. The timestamp from the surveillance video reveals that the attack lasted less than 30 seconds before the four assailants fled. Unfortunately, the surveillance camera was too far from where the assault took place to permit an identification of the assailants from the recording.
[6] During the assault, Paviter Bassi was stabbed twice in the chest. One stab wound damaged his heart, while the second perforated his diaphragm and injured his liver. The day after the assault, these wounds caused Paviter Bassi's death. Additionally, a post-mortem examination revealed that Paviter Bassi also suffered six further stab wounds and several blunt force injuries.
[7] It is the position of the Crown that Mr. Khattra was the assailant who stabbed Paviter Bassi and that he is guilty of first-degree murder. In addition to the applicant, four others were arrested and charged with Paviter Bassi's murder: Karanvir Bassi (arrested on March 20, 2018), Gurraj Bassi (arrested on March 23, 2018), Harminder Bassi (arrested on June 6, 2018) and Harman Singh (arrested on June 27, 2018).
[8] As Stribopoulos J. stated, the case against the applicant relies on the evidence of Harman Singh, who, while initially charged, subsequently entered into an agreement with the Crown. After he provided a sworn videotaped statement to police, the Crown withdrew the charge against him on November 1, 2018. It is anticipated that Mr. Singh will testify for the Crown at the applicant’s trial. At paras. 13-24 of his Ruling, Stribopoulos J. summarized that anticipated evidence:
[13] Mr. Singh alleges that on the date of the murder, he came to be in a vehicle, with Gurraj Bassi and Mr. Khattra, parked on a residential street in Brampton. At the time, he was friends with Mr. Khattra and was only acquainted with Gurraj Bassi. According to Mr. Singh, the men had gotten together to smoke some marihuana. While preparing to do so, Mr. Singh reports that Gurraj Bassi told them about being hit with a baseball bat the day before by "Paviter and some of his boys." He also showed them swelling to his face from the attack.
[14] According to Mr. Singh, as they sat in the car, preparing to smoke marihuana, Gurraj Bassi either received or made a call on his cell phone. From what he overheard, it sounded to Mr. Singh as though Gurraj Bassi and the person he was speaking with were talking about finding Paviter Bassi. After receiving a further telephone call, Gurraj Bassi started the car and began driving quickly.
[15] As he drove, Gurraj Bassi continued talking with someone on his phone. He was saying things like, "stay behind him," "where are you?" and "follow him." Mr. Singh claims that he asked Mr. Khattra, who was in the front passenger seat, what they were doing, but Mr. Khattra just waved him off because he was trying to listen to the telephone conversation. Mr. Singh surmised that they were trying to find Paviter Bassi.
[16] According to Mr. Singh, after navigating various streets at high speed, while still talking on the phone, Gurraj Bassi eventually pulled in front of and cut off a pick-up truck that Paviter Bassi was driving. Simultaneously, a pick-up truck driven by Harminder Bassi pulled alongside Paviter Bassi's truck, while an SUV driven by Karanvir Bassi pulled in behind him. The three vehicles effectively boxed in Paviter Bassi's pick-up truck. (According to Mr. Singh, he knew all of the participants and could readily identify each of them.)
[17] Once the vehicles came to a stop, Mr. Singh describes both Mr. Khattra and Gurraj Bassi immediately exiting their vehicle. Mr. Singh acknowledges getting out of the car briefly because he thought Paviter Bassi could still ram Gurraj Bassi's vehicle. Instead, he saw Paviter Bassi exit his truck and run towards the field of a nearby school.
[18] Mr. Singh alleges that Mr. Khattra, Gurraj Bassi, Harminder Bassi and Karanvir Bassi all pursued Paviter Bassi onto the field. As they ran, Mr. Singh says he could see that Gurraj Bassi had a black baton in his hand and that Karanvir Bassi was carrying a baseball bat. He did not observe either Mr. Khattra or Harminder Bassi carrying any weapons.
[19] On Mr. Singh's account, he did not want anything to do with the attack on Paviter Bassi. As a result, he stayed at the intersection and returned to the backseat of Gurraj Bassi's vehicle. From that vantage point, he claims to have witnessed Mr. Khattra, Gurraj Bassi, Harminder Bassi and Karanvir Bassi, all beating and kicking Paviter Bassi. He assumed the attack was in retaliation for Paviter Bassi assaulting Gurraj Bassi the day before. The attack on Paviter Bassi took place quickly, and in its aftermath, all of the assailants returned to their vehicles and fled the scene.
[20] On their return to the car, Mr. Singh claims that Gurraj Bassi did not have the black baton he had seen him with during the chase. According to Mr. Singh, he said that he had hit Paviter Bassi with it on the head and that it broke or shattered.
[21] Mr. Singh maintains that Mr. Khattra, once again in the front passenger seat, initially did not say anything after returning to the vehicle. However, Mr. Singh alleges that, during the drive, Mr. Khattra handed him an iPhone. The phone was locked. Mr. Singh knew that Mr. Khattra did not own an iPhone, so he assumed the phone belonged to Paviter Bassi. According to Mr. Singh, he did not want anything to do with the phone, given what just transpired, and tossed it back to Mr. Khattra.
[22] As they drove, Mr. Singh alleges that Mr. Khattra said that he "sliced" Paviter Bassi on the head and that he also "poked" him. Mr. Singh understood the latter comment to be an admission by Mr. Khattra that he stabbed Paviter Bassi. Eventually, the three men all went their separate ways.
[23] According to Mr. Singh, he met up with Mr. Khattra again on March 21. On that day, he says he picked up Mr. Khattra at his request. He alleges that Mr. Khattra said that he wanted to see if the knife was still where he threw it. After they left the scene the preceding day, Mr. Singh did not see Mr. Khattra dispose of a knife. However, given Mr. Khattra's desire to retrieve the knife, Mr. Singh assumed he must have thrown it from the vehicle at some point after the attack. Mr. Singh claims that Mr. Khattra eventually directed him to stop his car in an alleyway that gave access to a field. Mr. Khattra left the car for about five minutes, and on his return, reported that he had retrieved the knife but did not show it to Mr. Singh.
[24] That day, they continued to hang out together until they learnt that evening that the police had raided Mr. Khattra's house and were looking for him. At that point, Mr. Singh claims he dropped Mr. Khattra off in the area where he lived so that he could surrender to the police (which he did that evening).
[9] The Crown’s case also includes DNA evidence. First, following the March 20, 2018 execution of a search warrant at the home of Karanvir Bassi, police seized a pair of Karanvir Bassi's shoes, which were bloodstained. DNA analysis determined that the blood was that of Paviter Bassi. Police also located a red metallic baseball bat from a closet. Second, during the execution of a March 23, 2018 search warrant at the home of Gurraj Bassi, police seized a pair of Gurraj Bassi's shoes, which were also bloodstained. DNA analysis determined that the blood was that of Paviter Bassi.
[10] On March 22, 2018, police located Paviter Bassi’s cellphone in the bushes on the west side of Goreway Drive, about 4 km from Sandalwood Heights Secondary School. Police matched a fingerprint from the applicant’s right ring finger to one on the top right corner of Paviter Bassi’s cellphone screen.
C. The Chronology
[11] I will review in some detail the chronology of events since the applicant was charged. While much of this is non-contentious, this history is necessary to determining the merits of the s. 11(b) claim.
[12] Following his March 21, 2018 arrest, the applicant’s application for bail was conducted before André J. on April 27, 2018. On May 14, 2018, the applicant was released on a house arrest bail which is still in place.
[13] On October 5, 2018, after several pre-trials in the Ontario Court of Justice, 20 days were set for the preliminary inquiry commencing October 21, 2019. Later in October 2018, Harman Singh provided a statement to police, which was then disclosed. On November 1, 2018, his charge was withdrawn. The Crown continued to make disclosure over the months leading up to the preliminary inquiry.
[14] While the start of the preliminary inquiry was adjourned for one week to accommodate counsel for the applicant, the preliminary inquiry was completed on December 16, 2019, within the allotted time. The applicant and his three co-accused were each committed for trial on first degree murder. Two exit pre-trials were conducted by McLeod J. in the Ontario Court of Justice, one on December 27, 2019 and the second on January 10, 2020.
[15] On January 7, 2020, an Indictment charging the applicant and three co-accused with first degree murder was preferred. At that point, the total delay was 657 days or 21 months and 17 days.
[16] The applicant’s first appearance in Superior Court was on January 10, 2020, at which time a judicial pre-trial (“JPT”) was conducted before Durno J. It was agreed by all counsel that the further JPT with McLeod J. in the Ontario Court, already scheduled for February 11, 2020, should proceed. Following that, a further JPT was held before Durno J. All four accused were remanded to the February 21, 2020 assignment court.
[17] On February 21, 2020, counsel for the applicant indicated that he was ready to set a trial. Counsel for the three co-accused requested further pre-trials be scheduled as they were discussing resolution. The applicant’s trial was scheduled for 3-4 weeks, with a jury, commencing on May 11, 2020. The applicant planned to bring an informer privilege motion that had yet to be served and filed. Counsel indicated that he wished to speak with the assigned Crown and that they would have a further conference call with Durno J. once the materials were filed.
[18] Following a further conference call with counsel and Durno J. on February 28, 2020, the informer privilege/disclosure motion was scheduled for April 14, 2020.
[19] On March 15, 2020, due to the urgent public health crises caused by COVID-19, Chief Justice Morawetz closed the Superior Court of Justice in Ontario and adjourned all criminal matters that were scheduled in the Superior Court of Justice between March 17 and June 2, 2020. As a result, the motion scheduled for April 14, 2020 was adjourned and the trial was automatically adjourned to June 4, 2020.
[20] On April 2, 2020, Chief Justice Morawetz issued an “Updated Notice for matters to be heard in the Superior Court of Justice during the COVID-19 emergency” that set out the manner in which criminal matters would be heard in each region.
[21] The April 2, 2020 Central West Notice to the Profession, issued by Regional Senior Judge (“RSJ”) Ricchetti provided that as of April 6, 2020, the Region would, if possible, be expanding the types of matters that could be conducted in “these extraordinary times”. These included urgent criminal matters and other criminal matters. Importantly, the Central West Notice provided that the Court was not setting dates for criminal trials or applications, in part because it was not known when the courts would re-open.
[22] On April 20, 2020, Chief Justice Morawetz issued Notice to the Profession respecting jury trials indicating that, given the on-going public health situation, the Ontario Superior Court of Justice would not recommence criminal or civil jury selection or jury trials until September 2020, at the earliest. The Court indicated that it would monitor the public health situation and issue further direction in early May.
[23] On May 5, 2020, Chief Justice Morawetz further adjourned to July 8, 2020 all criminal matters that had been adjourned to June 4, 2020. His Notice to the Profession explained that “given the on-going public health situation due to COVID-19 and the uncertainty as to when it will be safe to return to courthouses, the SCJ will not resume in-person hearings of other matters until July 6, 2020, at the earliest”.
[24] A further Notice to the Profession, effective May 19, 2020, again expanded the types of matters that could be heard during the suspension of in-court proceedings. The Notice advised that “the SCJ is currently not setting criminal trial dates. Application dates will be set with leave of the court.” However, it indicated that the court would hear a number of other types of matters including:
f. Other matters that can be dealt with at this time through virtual hearings using Zoom videoconferencing or teleconferencing. Crown and defence counsel are encouraged to discuss their pending trials with a view to determining whether motions could be conducted primarily in writing with brief oral submissions, if necessary; whether focused motions could be conducted that would determine the outcome of a trial; whether the case can proceed as an out-of-custody non-jury trial; or there are any other reasonable proposals for virtual hearings. After those discussions and defence counsel have their client’s requisite instructions, counsel should arrange of conference call pre-trial conference with a judge to address counsels’ suggestions. These pre-trials are for in and out-of-custody accused although further updates on video platforms that will be available for those in custody are pending.
[25] On May 14, 2020, following this Notice, counsel for the applicant sent an email to the Crown indicating that he was following up on a letter of March 30, 2020, which is not before me. Counsel brought paragraph (f) set out above, to the Crown’s attention. He said: “We have the outstanding disclosure motion that we are prepared to do primarily in writing (with brief oral submissions). Prior to the outbreak of the pandemic, we previously raised the issue of re-election to judge alone in this matter. There may be other issues that we can discuss such as an ASF and related admissions.”
[26] The Crown responded that it was amenable to proceeding with the motion on a virtual basis. At a JPT conference call with Durno J. on May 26, 2020 the informer privilege / disclosure motion was scheduled for June 24, 2020, at which time it was heard by Stribopoulus J. by Zoom. He reserved his decision to August 28, 2020.
[27] On June 25, 2020, Chief Justice Morawetz issued a further Notice to the Profession in which he advised “of the steps that are expected to be completed to permit some in-court hearings to resume at certain court locations, effective July 6, 2020.” At the same time, matters that had been scheduled in May 2020 and then adjourned to July 8, 2020 were further adjourned to September 17, 2020.
[28] At the same time, RSJ Ricchetti issued a Notice to the Profession for Central West Region, also effective July 6, 2020 setting out “the matters and procedure in the Central West Region for the partial reopening of the courts during the months of July and August 2020.” The Notice provided that, “In Brampton, some courtrooms will be available to conduct non-jury trials and pre-trial applications for cases to proceed after this summer, with or without a jury.” It further provided that: “Brampton has criminal trials scheduled in July and August. Those trials will remain on the trial lists. Where the original election was non-jury or trials where counsel have indicated an intention to re-elect will proceed, subject to courtroom availability.” Cases that had been adjourned to September 2020 by the Chief Justice were to be addressed prior to that date by audio conference.
[29] While awaiting the informer privilege / disclosure motion decision, on July 8, 2020, counsel for the applicant emailed the Crown and said, “We had previously discussed re-election on this matter to judge alone prior to and after Covid struck. Could you kindly advise whether you will consent to re-election and that this matter be tried judge alone.” On July 17, 2020, the Crown responded that the Crown would not consent to a re-election to a judge alone trial. Counsel for the applicant replied, that day, indicating: “I anticipate that we will be bringing an 11(b) application seeking a remedy under 24(1) to dispense with Crown consent” and said he would request a JPT before Durno J. to discuss scheduling.
[30] On July 20, 2020, counsel for the applicant asked the trial coordinator to book a JPT before Durno J. to discuss scheduling. Counsel indicated that they were awaiting Stribopoulos J.’s decision and that he understood that the co-accused had continuing, separate JPT’s scheduled with a view to resolving their matters. A JPT was set for July 28, 2020.
[31] In an email sent to counsel for the applicant on July 24, 2020, in the context of preparing for the next JPT and trying to prepare an Agreed Statement of Facts for the trial, Crown counsel made clear that the Crown still did not know whether the co-accused would all be resolving their cases. He explained that “we have not yet had an opportunity to meet with Justice Durno and each counsel, since the shutdown.” He also indicated that the JPTs for the co-accused were scheduled to be completed by August 4, 2020.
[32] A further JPT was conducted, off the record, on the applicant’s case on July 28, 2020. Following it, Durno J. asked counsel if they wanted to put any comments on the record. Mr. Strezos did so. He said that the applicant was prepared to set a trial date, understood that there were outstanding co-accused who were still in discussions, and that without waiving any rights, counsel was prepared to come back on August 4. Counsel further indicated that “I will seek instructions on a re-election and we’ll be in a position – that being a re-election to (indiscernible)…” Durno J. said that he was going to ask the trial office to hold the January 11, 2021 trial date that they had discussed, but that “we can’t set it now because we’re not sure how many accused are going to be involved”. Counsel were given a further opportunity to put any comments on the record, but did not do so. Durno J. then summarized that the defence wanted an early trial date, the Crown was not available until January and that January 11, 2021 would be the first date for a jury trial, which the case was set for. The matter was adjourned for a further JPT on August 4, 2020.
[33] On July 29, 2020, Karanvir Bassi and Gurraj Bassi confirmed that they intended to plead guilty.
[34] On August 4, 2020, a further JPT was conducted with the applicant and counsel for Harminder Bassi, the only other remaining accused. Harminder Bassi’s JPT was adjourned again so that his counsel could seek instructions.
[35] In respect of the applicant’s matter, Durno J. observed that it was still not clear whether the applicant would be the only person going to trial, even though there had been a discussion that morning with counsel for Harminder Bassi. The Crown confirmed that Harminder Bassi’s JPT had been adjourned so that counsel could seek instructions.
[36] Counsel for the applicant responded:
We want to move this case along. We -- we have unqualified instructions to proceed for a judge alone trial. I urge the Crown again to -- to consent to re-election. We have been negotiating an ASF that would likely be more robust -- robust if it was a judge alone trial. On the last occasion, Mr. Cornelius and Mr. Powell had indicated that they’re not available in September. Picard from the Ontario Court of Appeal has clearly said that Crown decisions as to who counsel is are delay attributable to the Crown. Dealing with the Bassi accused that was up this morning, I can state, Your Honour, and I guess in short compass put it this way, my understanding, including an exit pre-trial on the date of committal or shortly following it, there were discussions about resolution involving Mr. Bassi. I see no reason why those discussions now have continued into their eighth month -- or sixth months. And in my respectful view, having now had a chance to look at the authorities in the Court of Appeal, including Manasseri and Vassell, you know, it’s very clear the Court has said where one accused is not interested in -- in proceeding promptly, the Crown could consider severance. So all that said, we are prepared to move this forward. I know we have a tentative or a – a scheduled-in trial date. We’re anxious to move this forward. We’re available to do it in September, and we’re available to do it judge alone. We’re prepared to work with the Crown toward making all reasonable concessions as this trial is not a complex one. It’s essentially a one witness case for the Crown, in my view, more or less. That’s not to say there’s other witnesses [sic], but that’s the crux of the case. So we’re anxious to move it along. We believe that we could even, notwithstanding COVID, do it roughly within the Jordan timeframes given the presumptive date, and I appreciate COVID has obviously changed many things. So in the short compass, those are my comments, Your Honour. We’re available for a pre-trial after the Tuesday August 18th pre-trial for Mr. Bassi. I think August 19th meets with everybody’s approval for a continuing pre-trial so we can continue to take steps to move this along.
[37] The Crown responded that it was his view that counsel for Mr. Bassi “was not dragging his feet at all” and that while there had been resolution discussions since the committal date, at least in his view, Mr. Robbins had been diligent in representing his client effectively and that the Crown had no concerns about him taking the time he needed to make the decisions he needed to make with his client.
[38] Justice Durno noted that the positions of the other two co-accused (Karanvir Bassi and Gurraj Bassi) had only been finalized ten days before that that while he appreciated the applicant’s position, the presumption was that the remaining accused would be tried together. In respect of the impact of COVID-19, he said:
…how that will play out remains to be seen. It would seem to me that subject to hearing full argument, one might consider it a discrete event, or extraordinary, at least I hope so. And there are a significant number of people waiting to have their trials set, and some of them remain in custody. And we’re in August, and we’ll attempt to schedule as best we can and accommodate the views of all counsel, but I’ll borrow a phrase from the Court of Appeal quite a few years ago, “No case is an island”.
[39] On August 19, 2020, a further JPT took place before Durno J.. At the end of it he noted that while dates for a four week trial commencing January 11, 2021 had been held since July 28, “the qualifier” was that this date was set on the basis that only one the applicant would be going to trial. He repeated that there was still uncertainty with respect to one of the three remaining co-accused. Counsel for the applicant repeated that he wanted to move the matter along and secure the earliest possible date. The matter was adjourned to September 24, 2020.
[40] On August 28, 2020, Stribopolous J. dismissed the applicant’s informer privilege / disclosure motion, without prejudice to renew it before the trial judge.
[41] On September 14, 2020, a “Jury Trial Outline” was released respecting how jury selection would take place in Brampton. It indicated that starting on September 14, 2020, there would be five courtrooms for jury trials in Davis Courthouse. Jury selection in Brampton resumed on September 14, 2021 at the Pearson Centre.
[42] On September 24, 2020, another JPT was conducted before Durno J. and the applicant was remanded for a further JPT on October 15, 2020.
[43] On September 25, 2020, a Notice to the Profession for Central West Region issued by RSJ Ricchetti indicated that, effective October 5, 2020, “All Criminal Jury and Non-Jury trials scheduled in Brampton will be tried subject to courtroom availability.”
[44] On October 9, 2020, Chief Justice Morawetz issued a further Notice to the Profession, which followed the Premier having announced a return to a modified Stage Two in Peel. The Chief Justice suspended all new jury selection in Brampton for the following 28 days. Upcoming non-jury trials and in-person cases in Brampton were permitted to proceed as long as there were 10 people or less in the courtroom.
[45] On October 13, 2020, Karanvir Bassi and Gurraj Bassi each pleaded guilty to manslaughter. Their sentencing was adjourned to November 30, 2020.
[46] On October 15, 2020, a further JPT was held and the applicant was remanded to the trial date in January 2021.
[47] On November 5, 2020, the Chief Justice issued a Notice to the Profession that jury selection and jury trials would re-commence in Brampton as of Monday, November 16, 2020. However, on November 10, 2020, given the deterioration in the public health situation in Brampton, new jury selection was suspended until at least November 30, 2020. On November 21, 2020, the Chief Justice issued a Notice to the profession that there would be no new jury selection, except in “green zones” until at least January 4, 2021. At that time, Peel had returned to lockdown.
[48] On November 12, 2020, Harminder Bassi confirmed that he intended to plead guilty. His guilty plea was scheduled for December 16, 2020. This leaves the applicant as the only person before the court for trial, now scheduled for January 11, 2021.
[49] On December 14, 2020, the Chief Justice extended the suspension of jury trials until at least January 29, 2021 in all areas of the province except “green zones”. Peel remains in lockdown.
D. Legal Principles
[50] The Supreme Court of Canada’s decision in Jordan sets out the framework to apply when considering whether delay (from the date of charge to the anticipated completion of trial) is unreasonable. The framework creates a ceiling, beyond which delay is presumptively unreasonable.
[51] Gillese J.A., writing for the court in R. v. Coulter, 2016 ONCA 704, summarized the framework as follows at paras. 34-40:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 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 (Jordan, para. 75).
39 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 (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [emphasis in original]
E. Analysis
[52] The total delay in this case, from the date the applicant was charged (March 21, 2018) until what has been the anticipated completion of his jury trial (January 29, 2021) is 34 months and 9 days.
[53] The Crown does not suggest that there has been any defence delay.
[54] The net delay exceeds the Jordan ceiling and so is presumptively unreasonable. As a result, it falls to the Crown to establish the presence of exceptional circumstances (Jordan, para. 47). These generally fall into two categories: “discrete events” and “particularly complex cases” (Jordan, para. 71).
[55] The Crown submits that there are two exceptional circumstances: the COVID-19 global pandemic and the fact that this is a particularly complex case. I will address each of these.
i) Is the COVID-19 pandemic an exceptional circumstance and, if so, how much delay is attributable to it?
[56] Counsel agree that the COVID-19 pandemic is a discrete event that should be characterized as an exceptional circumstance. They differ respecting how much of the delay results from the pandemic.
[57] The applicant says that the most that the pandemic should reduce the net delay is the period between May 11, 2020 (the date the trial was scheduled to begin) and June 25, 2020, a period of 1 month and 15 days.
[58] The Crown submits that a ten month period from March 17, 2020 (the day the Superior Court of Justice was shut down) to January 11, 2021 (the scheduled trial date) should be deducted from the overall delay as an exceptional discrete event.
[59] Exceptional circumstances lie outside the Crown’s control in that:
they are reasonably unforeseen or reasonably unavoidable, and
Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.
[60] When an unforeseen event occurs, there is an obligation on the Crown to take reasonable steps to try to avoid and address it before the presumptive ceiling is reached. Some examples of the sorts of steps include: “prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means” (Jordan at para. 70).
[61] There can be no question that the global pandemic has had, and will continue to have, far reaching impacts on the administration of justice in Ontario. Indeed, I cannot imagine that when the Supreme Court of Canada crafted the Jordan framework, it contemplated the dramatic effect that a global pandemic and consequent lockdowns, shutdowns of the courts and suspension of jury selection and trials would have on the right to be tried within a reasonable time. While the Jordan framework is the analytic tool that must be used to assess this application, I do so knowing that it was created to redress what was perceived as a culture of complacency towards delay, not to impose a straight-jacket on courts struggling to do justice in the face of the widespread, unforeseeable consequences to the administration of justice of a global health pandemic.
[62] It is reasonable to take judicial notice that in Brampton, one of the busiest jurisdictions in the country, the unprecedented closure of the courts and suspension of jury selection for months over the course of 2020 and into 2021, has and will have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209, at para 63:
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.
[63] The question before me is how much of the delay in the applicant’s case going to trial as it is now scheduled to do in January 2021 can fairly be said to be attributable to the pandemic.
March 17-May 11, 2020
[64] To start with, I consider whether the period from the shutdown of the Superior Court of Justice on March 17, 2020 until the applicant’s first scheduled trial date, of May 11, 2020 resulted from the pandemic.
[65] The Crown has provided no authorities to support its position that this portion of the delay was caused by the pandemic. I have reviewed three of my colleagues’ Superior Court decisions on delay resulting from the pandemic.
[66] In R. v. Drummond, 2020 ONSC 5495, Cavanagh J. began his calculation of the period of delay caused by the pandemic on April 2, 2020, which was the first date upon which the accused had been scheduled to appear in court after the onset of the pandemic and suspension of the court. He considered that the effect of the pandemic was the period from April 2, 2020 until September 2020, as this was when jury trials were once again being scheduled in his jurisdiction.
[67] Interestingly, Cavanagh J. was not called upon to consider whether the pandemic caused the delay between March 17 and April 2, 2020 because he had already deducted this delay from the overall delay due as an exceptional event because of a change in the appellate law. His analysis , therefore, does not really assist in determining when the effect of the pandemic begins.
[68] In Simmons, Nakatsuru J. considered a case in which the trial had been scheduled to commence on March 16, 2020, the date that courts suspended operations. Accordingly, he did not have to determine whether the delay from the pandemic began on the date of shutdown, or the first date on which the accused’s matter was actually affected, as they coincided. Again, this case does not assist my decision on this issue.
[69] In R. v. Gutierrez, 2020 ONSC 6810, a trial had been set for July 4, 2020. As a result of the pandemic and shutdown, the trial date was vacated in June and the trial was then re-scheduled for May 17-June 4, 2021. Byrne J. found that the delay caused by the pandemic was the 10 months and 12 days from the trial scheduled in July 2020 to the new trial scheduled on May 17, 2021. She did not deduct as a discrete event the delay from suspension of court proceedings on March 17 to July 4, 2020.
[70] In my view, while the pandemic and suspension of in person operations of the Court was an unusual and exceptional event that began on March 17, 2020, it cannot be said to have had an effect of delaying the applicant’s case until his scheduled trial date of May 11, 2020. The delay up to May 11, 2020 was anticipated when that trial was set and would have led to the trial being completed under the presumptive ceiling. Accordingly, I reject the Crown’s position that all of the delay from March 17, 2020 should be deducted as resulting from the pandemic. I think the time up to May 11, 2020 should be counted in the Jordan delay.
[71] The more contentious issue before me is the delay after May 11, 2020, when the applicant’s trial could not proceed.
May 11-September 14, 2020
[72] The defence says that the only delay that is properly attributable to the pandemic is that between May 11, 2020 and June 25, 2020, the date on which the applicant’s informer privilege / disclosure motion was heard by Stribopoulos J. I understand the defence position to be that the courts re-opened in July and that, had the Crown consented to his requested re-election, his trial could have been scheduled for September 2020. The applicant says that the failure of the Crown to consent to the re-election and take steps to expedite the hearing of his trial means that none of the delay after June 25, 2020 is as a result of the pandemic.
[73] I disagree.
[74] I break the delay after May 11, 2020 into two periods of time.
[75] The first period is between May 11 and September 14, 2020, the period in which all jury trials in Brampton were suspended. In my view, all of this delay was unquestionably caused by the pandemic.
[76] This case was scheduled as a jury trial. As a result of Notices by the Chief Justice, all jury cases were suspended in Ontario from March 17 until at least September 2020. It is indisputable that the pandemic caused of the delay of the applicant’s trial from May 11, 2020 until at least the beginning of September 2020. The pandemic, an event completely outside the control of the Crown, necessitated the suspension of jury trials so as to protect the health of everyone involved in the administration of justice until September 2020.
[77] As it turns out, the suspension of jury trials in Peel went on longer than the beginning of September 2020. The evolving situation with the pandemic meant that before juries could be safely selected, significant logistical and health measures needed to be taken to ensure the protection of all participants in the administration of justice. There were changes to courtrooms, to the courthouse and to the manner in which Brampton juries were to be selected. It was on September 14, 2020 that the Brampton Superior Court announced the manner in which juries would be selected. This was to be at the Pearson Centre, with courtrooms then available in Brampton for trials. Jury selection and jury trials did begin on September 14, 2020 in Brampton. The Notice to the Profession issued by RSJ Ricchetti on September 25, 2020 indicated that as of October 5, 2020, all criminal jury and non-jury trials “scheduled” would be tried in Brampton, subject to availability.
[78] On the basis of this, I think it is fair to conclude that the pandemic resulted in the cessation of jury trials in Brampton from May 11 until at least September 14, 2020. Unquestionably, in my view, this period of 127 days, or four months and 4 days must be deducted from the overall delay: Drummond at para. 79.
September 14, 2020-January 11, 2021
[79] The second period of delay, to which I now turn, is from September 14, 2020 to January 11, 2021, the delay from the time the court re-commenced jury trials to the date that the applicant’s trial is scheduled.
[80] In his thoughtful reasons in Simmons, Nakatsuru J. wrestled with the issue of whether delay resulting from the pandemic stopped once the court was re-scheduling jury trials or continued until a new trial date was set. He concluded that all of the delay to the new trial was part of the discrete event of the pandemic:
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. 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.
[81] I find this reasoning to be compelling. In Gutierrez, Byrne J. reached the same view. Cavanagh J. did not need to decide the issue in Drummond.
[82] I agree with my colleagues that, in principle, in most cases that were adjourned because the pandemic precluded the commencement of jury trials, the entire period of the delay until the new trial is fairly characterized as attributable to the pandemic. This makes sense. It reflects the reality that the administration of justice could not instantly re-start all those many cases that had been delayed on the very first day jury trials resumed. The justice system must acknowledge and take account of the fact that it required, and will in the future require a reasonable time for trials to be re-scheduled, bearing in mind the significant challenges that this poses for both the courts and for counsel.
[83] One need only consider the huge number of cases that were adjourned, by the orders of the Chief Justice, from March to June to July and then to September 2020, to appreciate the weight put onto the administration of justice by the pandemic. It is unfathomable to think that they could all have proceeded to trial in September. This is particularly so when, in Brampton, as the RSJ’s Notice made clear, there were only a limited number of courtrooms that were properly configured, fitted and available to hear cases that were proceeding in the Superior Court.
[84] While I appreciate the Crown’s argument that all of the delay until the new trial in January 2021 is as a result of the re-scheduling necessitated by the pandemic, and would likely agree with this position in many cases, on the particular facts of this case, I cannot agree.
[85] An important factor in this case, that appears to have been absent in Simmons and Gutierrez, is the unavailability of the Crown to conduct the trial for a period of several months. When this trial was being scheduled on July 28, 2020, the assigned Crowns were not available for any trial date until January 2021. The trial was not set until a date when the Crowns were available.
[86] In R. v. Picard, 2017 ONCA 692 at paras. 67, the Court of Appeal acknowledged that in a case such as this, where the same Crowns have been assigned to the case for a long period of time, including for the preliminary inquiry, and where there is extensive disclosure, it makes considerable sense for the assigned Crowns to remain on the case. Assigning new Crowns to this case at the end of July 2020 would no doubt have resulted in a waste of time and resources. However, Jordan requires reasonable availability and cooperation. Modest delay caused by the unavailability of counsel for a relatively short period is reasonable. However, on July 28, 2020, the court had dates on which this three to four week jury trial, which had already been adjourned once, could have been scheduled. I think the Crown was under an obligation to make counsel available to prosecute it earlier: Picard at paras. 110-118. In my view, it was unreasonable in these circumstances for no Crowns to be available for so long.
[87] A complicating factor here, however, is that had a jury trial been set for the fall of 2020, it is highly speculative whether or not it could have proceeded. That would have depended on what date was selected. Had it been set for the week of September 14, 20, 28 or October 4, 2020, it would likely have gone ahead as those are the weeks in which Brampton offered jury selection after the initial re-opening, and before the “second wave” led to the second suspension of jury selection.
[88] Had the trial been scheduled for the week of October 9, 2020, or any week after that, it would have been caught in the re-suspension of jury trials, which was extended to January 4, 2021 and has very recently been extended again until at least January 29, 2021. The applicant’s trial would have been adjourned to a later date. Had that happened, I would have had no hesitation in concluding that the delay that followed was as a result of the pandemic and so should be deducted.
[89] In calculating the delay from September 14, 2020 to January 11, 2021, I start from my view that the pandemic caused the trial to be delayed until the next reasonably available trial date. However, the court must recognize that in this case, the Crown’s unreasonable unavailability contributed to the delay. There is not, and cannot be, a mathematical calculation as to how to factor in the Crown’s unavailability. As a result, I have decided, generously to the defence in my view, that half of the time between the re-start of jury trials on September 14, 2020 and the trial date of January 11, 2021 should be included in the net delay calculation. This reflects the starting point that all of the delay to a new reasonably available trial date was caused by the pandemic. It also recognizes that the Crown’s unavailability was a factor that may well have caused the applicant’s trial to be delayed. At the same time, it acknowledges that even if the Crown had been available for a date after October 9, 2020, the trial would inevitably have been adjourned and delayed by the re-suspension of jury selection in Brampton.
[90] The total delay from September 14, 2020 to January 11, 2021 is 120 days, or 3 months and 29 days.
[91] Accordingly, I deduct a further 60 days or 1 month and 28 days.
The defence argument that the Crown was required to consent to its re-election so that a judge alone trial could be scheduled earlier
[92] In reaching the conclusions set out, I have proceeded on the basis that the applicant’s trial is, and always has been a jury trial. I will now address the defence position that the Crown cannot rely on the pandemic as an exceptional circumstance when it failed to take the step of consenting to a re-election to a judge alone trial. As the applicant puts it, “if the Crown agreed to re-election this matter could have commenced in September 2020”.
[93] In my view this position must be rejected.
[94] There is no question that to rely on delay having been caused by an exceptional circumstance, the Crown must show that it took steps to mitigate the delay. In my view, mitigating the delay did not require the Crown to sever the applicant from his co-accused so as to permit him to proceed by way of a judge alone trial.
[95] The chronology respecting the co-accused is important. Pre-trial discussions about the co-accused potentially resolving their cases took place from the time the matter concluded in the Ontario Court of Justice and continued after the adjournment of the applicant’s May 11, 2020 trial date. On July 17, 2020, the Crown advised that it did not consent to the applicant’s re-election. At that time, there were four accused on the indictment. It was not until July 29, 2020 that Karanvir Bassi and Gurraj Bassi confirmed that they intended to plead guilty. Their guilty pleas took place on October 13, 2020. It was not until November 12, 2020 that Harminder Bassi confirmed that he intended to plead guilty. While the co-accused had separate JPTs, the comments made at the July 28 and August 4 JPTs reflect the fact that as late as August 4, 2020, it was not clear at all that that Harminder Bassi would resolve his charge.
[96] While Mr. Strezos asked the Crown to consider consenting to a re-election to a judge alone trial, his comments on the record on July 28, 2020 reflect that he still needed to obtain instructions about re-election from his client. By August 4, 2020, he had instructions to re-elect if permitted by the Crown to do so. The difficulty is that there is no suggestion that the co-accused, Harminder Bassi, ever requested the Crown to consent to him re-electing or ever indicated any desire to re-elect to a judge alone trial.
[97] There is a presumption of a joint trial for co-accused charged with having jointly committed the murder. This is a murder alleged to have been committed by four people. The starting position has to be that all are tried together and all remain on one indictment. In this case, absent a desire for a re-election by Harminder Bassi, a joint trial had to be with a jury.
[98] I have no affidavit evidence as to why the Crown refused to consent to a re-election. However, the fact that Harminder Bassi’s charge was not resolved before the jury trial was set was a significant matter referred to in the comments put on the record after the JPTs on both July 28 and August 4. No re-election by the applicant would have been possible at that time unless the applicant’s charge was severed from the co-accused. The fact that the co-accused were still outstanding was likely an important factor that influenced the Crown exercising its discretion not to sever the accused’s charge from the co-accused, a pre-condition to any consent to re-election.
[99] The applicant could have brought a motion to sever his charge from Harminder Bassi’s. He chose not to do so. While he indicated an intention to bring a s. 11(b) motion and to seek, as a remedy, an order that the Crown be required to consent to his re-election, he did not do that either. Rather, on July 28, 2020, at a point when he still needed to seek instructions respecting re-election, he consented to a jury trial being set in January 2021.
[100] I cannot conclude that the Crown was required, in the absence of a severance application by the applicant, to sever the applicant from Harminder Bassi and to permit the applicant to re-elect a trial by judge alone so that he could have an earlier trial.
[101] The Crown was entitled to keep all four co-accused on one indictment as, if more than one of them was going to proceed to trial, it made sense for there to be one trial. This was particularly important because the pandemic had resulted in so many cases being re-scheduled and court time being even more precious than usual. Even after resolution on the part of Karanvir Bassi and Gurraj Bassi, severing the applicant and permitting him to re-elect would have meant losing the opportunity to try him with Harminder Bassi, who wanted a jury trial, should Mr. Bassi not resolve his charge. I do not think that reasonable steps to mitigate delay necessitated the Crown forgoing the opportunity to try the applicant and Mr. Bassi together, which was necessarily with a jury.
[102] Of course, the Crown’s right to have the co-accused tried together has to be balanced with the accused’s right to a trial within a reasonable amount of time. An individualized approach must be taken to the attribution of defence caused delay: R. v. Gopie, 2017 728 at paras. 128-136; R. v. Vassell 2016 SCC 26. But, I cannot find on this record that there were actions on the part of Harminder Bassi that caused the delay of the applicant’s trial: R. v. Ny, 2016 ONSC 8031; Gopie at paras. 128-130. The difficulty with the applicant’s position is that I am not persuaded that the resolution discussions that Harminder Bassi engaged in were an action on his part that caused the delay.
[103] Rather, it seems to me that the Crown made the reasonable decision to schedule the applicant’s trial on July 28, 2020, but not to sever him from Harminder Bassi at that time. It is significant that Harminder Bassi had not yet decided to plead guilty and did not indicate he was going to until November 12, 2020. In Ny, Fairburn J., as she then was, observed that “provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one”. This passage was adopted by the Court of Appeal in R. v. Gopie at paras. 171-172.
[104] In this case, to the extent that the Crown’s decision to keep the applicant and his co-accused together may have extended the delay from the possibility of a trial in the fall of 2020 to a trial in January 2021, that additional delay was because of the complexity caused by multiple accused and so was reasonable: R. v. Gopie at paras. 168-174.
[105] On the record before me, I also find that the Crown has taken genuine, reasonable steps to try to mitigate delay. More specifically, the Crown has repeatedly sought the assistance of Durno J. on multiple JPTs for the applicant, and all of the co-accused, to try to resolve their charges and streamline the prosecution. The Crown has responded regularly to defence requests for disclosure. The Crown has worked with the defence to try to create an agreed statement of facts, with the goal of shortening the length and complexity of the trial. Short of severing the co-accused, which I have found was not required of the Crown, I am not sure what the Crown could reasonably have done in the context of the pandemic.
Conclusion
[106] To conclude, I find that the COVID-19 pandemic is a discrete event that falls within the category of exceptional circumstances set out in Jordan. In fact, it is my view that it is a continuing discrete event. It has wreaked havoc on the administration of justice in Brampton and has delayed a huge number of trials. When they will all be able to be scheduled is not yet settled. On the basis of the evidence before me, I conclude that of the total delay of the applicant’s trial from May 11, 2020 to January 11, 2021, the period from May 11 to September 14, 2020 (127 days) and half the period from September 14, 2020 to January 11, 2021 (60 days) should be deducted from the overall delay. I deduct 187 days from the total of 1046 days leaving a net delay of 847 days or 27 months, 3 weeks and 4 days. This falls under the presumptive ceiling of 30 months.
ii) Is the complexity of the case an exceptional circumstance?
[107] Given my conclusion that the total delay, taking into account the discrete factor of the pandemic, is below the presumptive 30 month ceiling, there is no need to go on and consider whether the case is particularly complicated such that the delay is justified.
[108] For the purpose of completeness, and in the event I am wrong respecting the proper delay caused by the pandemic, I will address briefly the Crown’s argument.
[109] As a starting point, it is to be noted that in R. v. Cody, 2017 SCC 31 the Supreme Court explained at para. 64 that unlike discrete events and defence delay, case complexity requires a qualitative assessment and is not used to deduct periods of delay. Rather, where the net delay exceeds the presumptive ceiling, complexity may be relied upon by the Crown to rebut the presumption that the delay was unreasonable.
[110] The Crown submits that there are a number of factors that mean that this case qualifies as an exceptional one. In support of this position, it relies on the following factors:
• Five co-accused were arrested;
• A three week preliminary hearing, involving four co-accused, seven experienced counsel, and two senior Assistant Crown attorneys transpired;
• The Applicant himself was represented by three distinguished and skilled lawyers;
• Approximately ten (10) eye-witnesses;
• Statements from an additional twenty (20) civilians;
• Notes from approximately ninety (90) officers;
• Video-recorded interviews of all arrested parties;
• One former co-accused and Vetrovec witness;
• Extensive forensic evidence;
• Voluminous cellular evidence;
• Numerous warrants – both sealed and unsealed;
• Multiple, fulsome, and ongoing disclosure requests from the Applicant’s counsel;
• A pre-trial application alleging innocence at stake; and
• Multiple Judicial Pre-Trials in both the Superior Court and Ontario Court.
[111] The Crown submits that almost all of the factors identified as indicative of complexity in Jordan at paras. 77-78 are present here.
[112] In Jordan, the court explained the nature of particularly complex cases at para. 77:
Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. [Emphasis in original]
[113] In R. v. Picard, 2017 ONCA 692 the Court of Appeal elaborated on the idea of complex cases at para. 62:
62 In Cody, at para. 64, the court explained that complexity "is an exceptional circumstance only where the case as a whole is particularly complex" (emphasis added). A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial. This can be the result of factors such as concessions made by the defence, the negotiation of a comprehensive agreed statement of facts, changes in the charges or number of accused, or even, as here, the preparation of charts or summaries that distill extensive and complex data so as to assist in the presentation of the case. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.
[114] On careful reflection, I agree with the applicant that this is not a matter in which the complexity of the case would justify a net delay beyond the 30 months.
[115] I do not find that this case meets the relatively high threshold to be characterized as particularly complex. I agree with the Crown that there are certainly elements of complexity that might be relied upon to justify a delay over the ceiling. There were five co-accused at one point, though there have been only four for most of the time. The disclosure was voluminous. There have been a significant number of JPTs conducted.
[116] That said, after a 13 day preliminary inquiry, the accused were all committed for trial only 21 months after the offence date.
[117] In the Superior Court, the applicant’s case was able to be quickly set for a three to four week trial, with only one pre-trial motion. Had the applicant’s trial proceeded as scheduled, it would have been completed by May 29, 2020, which would have been 26 months and nine days after the applicant was charged.
[118] This chronology indicates to me that the time needed to prepare for trial was not inordinate. Furthermore, given the fact that the delay in completing the case beyond May 29, 2020 cannot be said to result from complexity complications, I do not see how, if the net delay is properly calculated as being over 30 months, it could be justified on the basis of complexity.
iii) Should the matter be stayed even if the total delay is below the presumptive ceiling?
[119] The applicant’s position is that if the net delay is calculated as being below the 30 month presumptive ceiling, a stay should still be granted. I have calculated the net delay at just under 28 months.
[120] Jordan provides that in cases such as this, where the net delay is under the presumptive ceiling, the onus shifts to the defence to show that :
(1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and
(2) that the case took markedly longer than it should have.
[121] In Jordan, the Supreme Court made clear that stays beneath the ceiling are expected to be rare, and limited to clear cases: Jordan at paras. 48 and 82-83.
[122] I am satisfied on this record that the applicant has taken meaningful and sustained efforts to expedite the proceedings. I have already set out the positions that Mr. Strezos has taken in the Superior Court to move his client’s case along and to secure the first available trial date. The first criterion is met.
[123] Jordan mandates that determining whether the time taken has been markedly longer than was reasonably required is not a precise calculation and requires stepping back from the minutiae and taking a bird’s eye approach.
[124] The applicant says that the case took markedly longer than was reasonably required because the Crown refused to consent to a re-election to a judge alone trial, which would have enabled him to proceed to trial in September. I have already explained why I conclude that the Crown reasonably refused to sever the applicant from his co-accused. I cannot conclude that the Crown exercised its prosecutorial discretion unfairly and that this delayed the applicant’s trial longer than was reasonable.
[125] The only reason this trial was not completed in May 2020, six months under the Jordan ceiling, was the onset of a global pandemic in March 2020. Since that time, Brampton has been able to have only four weeks of possible jury selection. Jury selection is suspended until at least the end of January 2021. In my view, the applicant has failed to demonstrate that this case has taken markedly longer than was reasonable in this unprecedented time.
F. Disposition
[126] The application is dismissed.
J.M. Woollcombe J.
Released: December 17, 2020
COURT FILE NO.: CR-19-1981
DATE: 20201217
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
GURYODH KHATTRA
Applicant
REASONS FOR JUDGMENT
Woollcombe J.
Released: December 17, 2020