COURT FILE NO.: CRIMJ(P) 1466/19
DATE: 2020 12 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Tina T.H. Kim, for the Respondent
- and -
RICHARD WALKER
John Fennel, for the Applicant
HEARD: October 26, 27, 2020
RULING Application Under s. 11(b) of the Charter
Fowler Byrne J.
[1] Richard Walker applies for a stay of his sentencing, staying the execution of his sentence, or reducing the severity of his sentence, in accordance with s. 24(1) of the Canadian Charter of Rights and Freedoms, on the basis that his right to be sentenced within a reasonable time as guaranteed by s. 11(b) of the Charter has been infringed.
A. Background
[2] On March 11, 2020, following a trial before a judge and jury, Richard Walker was found guilty of accessing child pornography, possessing child pornography and making child pornography available. Following the delivery of the verdict, a sentencing hearing was scheduled for June 22, 2020 at 11:00 a.m.
[3] On March 15, 2020, the Chief Justice of the Superior Court of Justice released a Notice to the Profession indicating that the Superior Court of Justice was suspending all regular operations, effective March 17, 2020 and until further notice, to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19).
[4] An Order of the Chief Justice was also made on that day which adjourned any matters that were scheduled for an appearance between March 17, 2020 and June 2, 2020 to either June 3, 4 or 5, depending on the originally scheduled date.
[5] On April 2, 2020, a Notice to the Profession - Central West Region, was released indicating that as of April 6, 2020, a party could request a hearing in a criminal matter on urgent basis which could be dealt with by way of conference hearing. Other specified matters were also permitted, which included out-of-custody pre-trial conferences, but did not include out-of-custody sentencing hearings. At this time, the courts also indicated that it would not schedule criminal trials or dates for application because:
i. There was no certainty when courts would re-open;
ii. Whenever courts re-open in custody cases will be to be prioritized considering already scheduled in custody and other high priority trials;
iii. Jury summonses must be mailed 28 days before the court date.
[6] On May 5, 2020, the Chief Justice of the Superior Court of Justice ordered, inter alia:
The Order of March 15, 2020… is further extended as follows:
Due to the ongoing public health crisis caused by COVID 19, any accused person who had or has a criminal matter scheduled for any type of appearance in any court in the Ontario Superior Court of Justice between March 17 and July 3, 2020 shall be adjourned as follows, unless the court orders otherwise:
[4] Accused persons with matters scheduled in the Ontario Superior Court of Justice in the month of June 2020 and on July 2 and 3, 2020 must now appear in this Court on July 9, 2020 at 10:00 a.m. at the court location at which they were to appear in June, 2020.
A bench warrant with discretion (s. 597(4)) is issued as of the date in June on which the person was scheduled to appear,
if the person fails to appear in this Court on July 9, 2020, a warrant will be issued for their arrest, and
the bench warrant with discretion is issued as of the date the person is scheduled to appear, pursuant to s. 597 (4) of the Criminal Code.
[7] On May 13, 2020, a Notice to the Profession for the Central West Region, was released, effective May 19, 2020. It provided information regarding what urgent matters would be dealt with during the suspension of regular court operations, including some expanded services. Again, out of custody sentencing dates were not listed. Matters that could proceed virtually, or by conference, were prioritized.
[8] On June 5, 2020, Crown counsel emailed Mr. Walker’s counsel and confirmed that due to the Order of Morawetz C.J. of May 5, 2020, the sentencing hearing would be adjourned to July 9, 2020.
[9] On June 25, 2020, two further Notices to the Professions were released – one province-wide and the other relating to the Central West Region alone.
[10] The province-wide Notice to the Profession, Litigants, Accused, Media and Members of the Public was released by the Chief Justice to advise of the steps to be completed to permit a phased return to in-court hearings, at certain locations, as of July 6, 2020. The schedule to this Notice showed that Brampton would only have 5 operating court rooms as of July 6, 2020.
[11] In addition, a further order was made by the Chief Justice as follows:
EXCEPT WHERE THE COURT ORDERS OR DIRECTS OTHERWISE, including cases where a new trial date or other date has been assigned or ordered by the court, this section of this Notice constitutes an Order regarding the continued adjournment of criminal matters.
Further to my orders of March 17 and May 5, 2020, and by this Order, dated June 17, 2020, and unless the court orders otherwise, criminal appearances have been adjourned as follows:
d. EXCEPT WHERE THE COURT ORDERS OR DIRECTS OTHERWISE, matters that were scheduled in June 2020 are adjourned to September 18, 2020.
i. Accused persons subject to this Order must now appear on September 18, 2020 at 10:00 a.m. at the court location at which they were to appear in June 2020,
ii. a bench warrant with discretion (s. 597(4)) is issued as of the date in June on which the person was scheduled to appear, and is returnable on September 18, 2020,
iii. if the person fails to appear in this Court on September 18, 2020, a warrant will be issued for their arrest, and
iv. the bench warrant with discretion is issued as of the date the person is scheduled to appear, pursuant to s. 597(4) of the Criminal Code.
[12] In the Notice to the Profession released specific to the Central West Region, the information in the province-wide Notice was reiterated. The Notice also stated:
Given the limited number of available courtrooms within the Region, the court will do its utmost to accommodate non-jury trials and other matters where in-court hearings are determined to be necessary and in the interests of justice. Accordingly, many matters will continue to be heard by tele/videoconference.
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.
All requests for urgent hearings or other criminal applications will continue to be heard in accordance with the procedure set out in the Central West Region’s Notice to the Profession dated May 19, 2020. [Emphasis added.]
[13] With respect to the cases being remanded to September 15, 16, 17 and 18, 2020, this Notice also stated:
In order to reduce the number of cases required to be dealt with on the return dates and to set dates upon which the cases can proceed, unless the case has previously been dealt with by the court, these cases will be addressed by audio appearance before those dates. These cases include but are not limited to trials, sentencings and set date appearances adjourned because of the suspension.
The court will conduct these audio appearances on a schedule with one half-hour or one-hour slots at which time new trial dates can be set, sentencing dates set or other matters addressed. For example, if one half-hour time slots are used, there may be 6 or 7 cases scheduled, counsel or self-represented accused will call the number provided, instead of announcing their name when prompted, simply push the # key to limit the interruptions to the proceedings. The cases will be dealt with in the order in which they appear on the docket.
Counsel should discuss in advance mutually agreeable dates and the Crowns will have the dates and times that have been set aside for these conferences. The lists will then be provided to the Trial Coordinator who will set the lists. The cases will be called in the order in which they appear on the docket. Where there are two or more accused counsel, they should coordinate their dates before calling into the appearance.
[14] On July 2, 2020, Mr. Walker’s counsel emailed Crown counsel and asked what was happening on July 9, 2020. In response, the Crown emailed back the next day and stated:
Hey John, I would think we would be rescheduling the sentencing. The only issue is that since jail is a likely outcome of the sentencing the Crown’s position would be that the sentencing be adjourned to avoid Mr. Walker being imprisoned during the pandemic. Perhaps we can aim for a sentencing date in November. Or we can just set a speak to date a little earlier like in September. What do you think?
[15] In response, on July 3, 2020, Mr. Walker’s counsel responded as follows:
Anytime in the fall. Next week is going to be a mess. Enjoy your vacation. John.
[16] As per the Order of the Chief Justice of June 25, 2020, the sentencing was automatically adjourned from July 9, 2020 to September 18, 2020. No one appeared on July 9, 2020 to speak to the matter. No one requestd an audio appearance as per the Regional Notice to the Profession dated June 25, 2020.
[17] On September 8, 2020, Mr. Fennel emailed the Crown and asked what was happening on September 18, 2020. It was his understanding that it would be an assignment court, but he was not sure. The next day, the Crown responded by email and stated:
I’m not sure exactly what will happen that day either. Given the amount of delay so far though, I think though we should think about rescheduling the sentencing date. I’m not sure whether we would be able to that on the 18th before Justice Durno but if not, we can always set it TBST before Justice Fowler Byrne and schedule it then. What do you think?
[18] In response, on the same day, Mr. Walker’s counsel suggested that they try to get a date beforehand, so that the court could be advised of the agreed upon date on the 18th.
[19] On September 10, 2020, Crown counsel emailed the trial coordinator. October 14, 15 and 16 were available, as well as the week of October 19. Defence counsel was not available until October 26 to 29, and then for November 2-6, 13, 18, 20, and 23-27. The only dates that were available to the court (October 26-29) were not available to the Crown. The parties then agreed on January 5, 2021.
[20] The matter was before Justice Durno on September 18, 2020. At that time, the sentencing was set for January 5, 2021 and the record was endorsed that the parties were to be emailed for their position on whether or not the delay to that point in time raises Jordan issues. It was agreed in advance that neither party had to attend.
[21] On September 23, 2020, the Crown emailed defence counsel and asked for his position regarding delay. If the defence was going to raise a delay, the Crown offered to find earlier dates.
[22] On October 4, 2020, Mr. Walker emailed an application under s. 11(b) to the Crown. This was the first indication by Mr. Walker that he took issue with the delay in his sentencing.
[23] A pre-trial was arranged regarding the application on October 15, 2020. When advised of this date, defence counsel inquired whether it was for a sentencing or a judicial pre-trial. He was advised that it was a necessary pre-trial before he was able to file an 11(b) application. Both counsel appeared before Justice Durno on that day and indicated that they were discussing getting an earlier date for sentencing. They intended to get further dates from the trial office and then reconvene again for a conference call on October 23, 2020.
[24] The parties appeared again before Justice Durno on October 23, 2020. At that time, the record indicated that eleven earlier dates were offered starting from October 26, 2020 but that Mr. Walker did not seek an earlier date. The sentencing was confirmed for January 5, 2021 and Mr. Walker’s counsel also indicated that they would be challenging the mandatory minimum sentence for the conviction on accessing child pornography. Mr. Walker also agreed that the Jordan clock would stop as of October 23, 2020.
[25] The Crown and the Defence both agree as follows:
a) The period under scrutiny is between March 11, 2020 and October 26, 2020; the Defence has conceded that October 26, 2020 is the “end date” for calculating the delay period;
b) This period exceeds the 5 month ceiling articulated in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, requiring the court to make this inquiry; and
c) The Defence has not expressly waived any delay in this case.
B. Law
[26] To calculate whether a delay is unreasonable, and therefore a potential violation of a person’s rights under s. 11(b) of the Charter, the following steps are to be taken, in order:
a) Calculate the total delay from the charge to the end of trial;
b) Subtract defence delay, which can be either
as a result of an implicit or explicit waiver by the defence, which must be clear and unequivocal, or
delay caused solely by the conduct of the defence.
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 60-66.
[27] If the remaining delay is still above the ceiling, it is presumptively unreasonable. The Crown may rebut this presumption by showing the delay is reasonable because of the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable, and the Crown cannot reasonably remedy the delays emanating from the circumstances once they arise. Generally, exceptional circumstances will either be discrete events, such as medical or family emergencies, or exceptional events that arise at the trial. The Crown has to show that it took reasonable steps to avoid and address the delay before the delay exceeded the ceiling. The Crown must be willing to mitigate the delay that arose in this way: Jordan, at paras. 68-76.
[28] Exceptional circumstances may also be found when there is a particularly complex case: Jordan at para. 77. This is not an issue in this case.
[29] In the case of a sentencing, if more than five months pass between the verdict and the passing of sentence, it is a presumptively unreasonable delay for the purposes of s. 11(b) of the Charter. In these cases, it falls on the Crown to justify this delay: Charley, at para. 87. Accordingly, the “ceiling” for the delay between verdict and sentencing is 5 months.
[30] In these circumstances, it is not appropriate that a sentencing be done by videoconference or audio. Two of the offences for which Mr. Walker was found guilty have a mandatory minimum sentence. While these mandatory minimum sentences have been challenged by Mr. Walker, there is a possibility that Mr. Walker will be going into custody, which will start when it is imposed: s.719(1) Criminal Code.
C. Analysis
[31] Each period of alleged delay will be examined separately.
i. March 11, 2020 – June 22, 2020
[32] This encompasses the period of 3 months and 11 days between the verdict and the scheduled sentencing date. This period was scheduled before the effects of the pandemic were known and before the suspension of regular court operations was announced. There is no dispute that this is properly calculated as part of the delay.
ii. June 22, 2020 – July 9, 2020
[33] This encompasses the period between the scheduled sentencing hearing and the return date as ordered by Chief Justice Morawetz on May 5, 2020. The courts did not start operating until July 6, 2020.
[34] During this period and the previous period, only urgent and other select criminal matters were being heard, which did not include out of custody sentencing hearings.
[35] The Defence concedes that the period of June 22, 2020 to July 5, 2020 is a temporary discrete event that can be considered an exceptional circumstance. As of July 6, 2020 though, he argues the courts were open and a sentencing hearing could have been scheduled.
[36] While I agree the courts were open as of July 6, 2020, I find that the exceptional circumstance that delayed the sentencing hearing until July 6, 2020, is properly extended to July 9, 2020. The return date ordered by Chief Justice Morawetz on May 5, 2010 was July 9, 2020 for all matters originally returnable in June 2020. The courts operating on July 6, 2020 were mainly dealing with scheduling matters that were originally returnable in March 2020. July 7 was reserved for matters originally scheduled for April 2020 and July 8 was set aside to deal with matters originally scheduled for May 2020. Accordingly, while the courts were open for July 6 to July 9, they were not available for sentencing.
iii. July 9, 2020 to September 18, 2020
[37] On June 25, 2020, the profession and public were notified of the plans to phase in the re-opening of the courts and in person hearings. As of July 6, 2020, only five of Brampton’s 19 regularly operating Superior Court of Justice courtrooms were available for in person hearings. As indicated above, actual hearings would not be scheduled until after July 9. Accordingly, as of July 9, the court in Brampton was operating at approximately 25% of its usual capacity. Within that reduced capacity it had to schedule not only the matters originally returnable during that time, but also matters that were supposed to be heard in the previous 3.5 months – between 1/4 and 1/3 of their entire case load for one year. The lack of jury trials during this period helped, but the court was confronted with an extensive backlog and minimal resources to deal with it.
[38] In accordance with the email exchange between the Crown and defence counsel on July 2-3, 2020, and following the Order of June 25, 2020, the Crown offered to put the sentencing over until the fall so that Mr. Walker would not have to start his period of incarceration during the pandemic. The Defence agreed to put the matter over to any date in the fall.
[39] On July 9, 2020, the matter was automatically adjourned to September 18, 2020 by virtue of the Order of the Chief Justice dated June 25, 2020. No one appeared in July 9, 2020. Neither party made any inquiries of what dates would be available if the parties wanted to schedule a hearing on July 9, 2020 nor did any party request an audio appearance as set out in the Regional Notice of June 25, 2020 in order to set an earlier date.
[40] On September 10, 2020, the Crown reached out to the trial coordinator’s office to determine when a sentencing hearing could be scheduled. The Court offered October 14, 15, 16 or the week of October 19, 2020. The Crown offered all these dates except October 16, 2020 to the Defence. The Defence indicated he was in trial the week of October 14 and the week of October 19, and then offered October 26-29 and various dates in November 2020. They eventually agreed on January 5, 2021.
[41] A representative of the Crown appeared on September 18, 2020 and the matter was adjourned to January 5, 2021. The parties were asked to advise if there were Jordan issues.
[42] I find that this entire period is a delay brought on by exceptional circumstances, namely the suspension of regular court operations due to the global pandemic. Accordingly, this period should be deducted from the calculation of any delay in scheduling Mr. Walker’s sentencing.
[43] The delay caused by the suspension of court operations and the resulting backlog due to the pandemic has already been found to be reasonable because of the presence of exceptional circumstances. The pandemic was not reasonably foreseeable, and the Crown could not have reasonably remedied the delays that emanated from it: R. v. Gutierrez, 2020 ONSC 6810, at para. 19; R. v Simmons, 2020 ONSC 7209, at para. 60; R. v. Khattra, 2020 ONSC 7894, at paras. 56, 62.
[44] It is conceded that this is a sentencing matter and not a jury trial that was further complicated by the lack of jury trials. Court rooms were open for non-jury matters as of July 9, 2020. Nonetheless, even non-jury matters were subjected to the effects of the suspension of operations, the back log and the necessary choices and prioritization that the Crown and the courts had to contend with.
[45] As stated in the Notice to the Profession in the Central West Region dated June 25, 2020, the limited availability of courtrooms required the prioritization of “non-jury trials and other matters where in-court hearings are determined to be necessary and in the interests of justice.” While sentencing does require in court attendance, in these circumstances, I do not find that prioritizing Mr. Walker’s sentencing is in the interest of justice.
[46] I make this finding for the following reasons:
a) The “interests of justice” encompass not only justice for Mr. Walker, but justice for all the others in the criminal justice system waiting for their matter to be heard during this time; the particular challenges emanating from the pandemic were described by Nakatsuru J. in Simmons, at paras. 70-72;
b) From the time regular court operations were suspended, out of custody sentencing hearings were not considered urgent, nor a priority of the Courts. Even when regular court operations started phasing in during this period, the minimal court facilities had to be carefully distributed, and priorities had to be set;
c) The reality of these minimal facilities was reflected in the Order of June 25, 2020, which adjourned any matter that was not already scheduled to September 18, 2020; the Order of June 25, 2020 is similar to the Orders of March 15, 2020 and May 5, 2020 in that they put over matters which the court simply cannot accommodate due to the limited capacity available to them;
d) Both before and during this period, judicial resources were being directed to keeping accused and offenders out of custody, due to the increased risk of COVID-19 infection in the penitentiary setting; this can be seen in the court’s efforts to facilitate ongoing bail hearings, and guilty pleas with sentencing to be determined at a later date; in custody matters were given priority so that they could be adjudicated as soon as possible to minimize their custodial time; the Court of Appeal for Ontario has stated that it is in the public interest that the spread of COVID-19 in correctional institutions be minimized: R v. Stone, 2020 ONCA 448 at para. 14.
e) In line with the government’s focus on keeping the prison population down, the Crown offered to delay Mr. Walker’s sentencing so that he would not be required to serve his sentence during the pandemic; and
f) While the Defence did not specifically waive this delay period, he readily agreed to this delay to as far as November 2020; no mention was made of any delay concerns until the Defence was asked to state his position by the Crown, which was after he agreed to the sentencing date in January 2021.
[47] Once more facilities were available, the Crown made efforts, with Mr. Walker’s cooperation, to schedule Mr. Walker’s sentencing. As stated, no efforts were made to try to obtain an earlier date in accordance with the regional practice direction of June 25, 2020. There was nothing more the Crown could have done to mitigate this period of delay considering the limited facilities and Mr. Walker’s particular case, even before the “ceiling” was reached. The prioritization of Mr. Walker’s out of court sentencing was not reasonable, nor in the interests of justice. This is a discrete and exceptional circumstance.
iv. September 18 to October 14, 2020
[48] I also find that this period is delay that is reasonable in light of the exceptional circumstances of the pandemic. As stated in Simmons, at paras. 71-72, once the courts are open for operation, even in a limited capacity, it cannot be assumed that a matter can be scheduled the moment courtrooms are available. Consideration must be had for the enormity of matters that had to be scheduled.
[49] I find in these circumstances that the Crown acted with reasonable dispatch to have the matter scheduled once additional courtrooms were phased in as of September 2020. Prior to the return date of September 18, 2020, the Crown offered to the Defence a number of dates in October in which to proceed. The earliest was October 14. The only date not available to the Crown was October 16. The selection of a later date was a result of the defence counsel’s schedule, not that of the Crown.
[50] In Khattra, the court contributed only half of the delay from the resumption of court operations in September to the anticipated date of trial in January to the exceptional circumstances of the pandemic. In doing so, Woollcombe J. found that part of the delay was to accommodate the Crown’s unavailability to proceed any earlier.
[51] In the case before me, no such delay on the part of the Crown is present. The Crown had greater availability to schedule the hearing than did the Defence. Accordingly, for these reasons and the reasons set out for the period of July 9, 2020 to September 18, 2020, I find that this entire period is a reasonable delay due to the exceptional circumstances of the pandemic.
v. October 14, 2020 to October 26, 2020
[52] The Crown and the Court were available from October 14, 2020 and offered a number of dates to the Defence over the next two weeks. Defence could not proceed because of their own schedule: Jordan, at para. 64. Accordingly, this period will be considered defence delay.
vi. Calculation
[53] It should be noted that although the Crown has argued defence delay for a longer period of time, I find no evidence of such. The defence counsel appeared willing to cooperate with the Crown on all return dates and to find a suitable return date for the sentencing. It was only a delay of a couple of weeks, due to counsel’s own schedule, that could be attributed to the defence.
[54] Bearing this in mind, I calculate the delay between the verdict and sentencing as follows:
a) Total delay period of March 11, 2020 to October 26, 2020: 7 months, 15 days;
b) Less defence delay of October 14, 2020 to October 26, 2020: 13 days;
resulting in a net delay of 7 months, 2 days.
[55] From this net delay, it is appropriate to deduct the three periods which I have characterized as reasonable given the discrete event of the pandemic, which total 3 months, 23 days, for a remaining delay of 3 months, 11 days.
vii. Defence Argument of Unreasonable Delay
[56] Given my finding that the remaining period of delay falls below the presumptive ceiling, the onus falls to Mr. Walker to show that the delay was nonetheless unreasonable: Jordan, at para. 48. In order to do so, Mr. Walker must show that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the sentencing took markedly longer than it reasonably should have: Jordan, at para. 82.
[57] On that facts before me, I cannot find that the defence has met the onus of showing that this delay was unreasonable. While the defence was cooperative in setting a new date, it did not take any steps to set the earliest date possible. As indicated in the exchange of emails between defence counsel and the Crown on July 2-3, 2020, it was stated that July 9, 2020 could be used to schedule a sentencing. Instead of requesting that they do so, the defence readily agreed to an adjournment to November 2020. There was a process available in July and August to request an audio conference and obtain an earlier date. No such audio conference was requested.
[58] I also cannot find that the sentencing took a markedly longer period that it should reasonably have. This application was scheduled quite quickly. Mr. Walker’s challenge to the mandatory minimum sentencing is scheduled to be heard on the same day as the sentencing, as to not delay the matter further. The parties have made use of judicial pre-trials to discuss these matters before they were scheduled. Finally, given my calculation of the remaining delay, it is just a little more than half the maximum length of a delay that is considered reasonable, or the “ceiling”. This sentencing has not taken a markedly long period to be scheduled.
D. Conclusion
[59] Accordingly, for the foregoing reasons, the application of Mr. Walker for a stay or mitigation of his sentencing is dismissed.
Fowler Byrne J.
Released: December 30, 2020
COURT FILE NO.: CRIMJ(P) 1466/19
DATE: 2020 12 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
RICHARD WALKER
RULING Application Under s. 11(b)
Fowler Byrne J.
Released: December 30, 2020