COURT FILE NO.: 18-10077 DATE: 2021/02/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Mohamed Ali and Everton Ambrose Applicants

Counsel: Matthew Geigen-Miller, for the Crown Leo Russomanno and Mark Ertel for the Applicants

HEARD: November 19, 2020

RULING ON SECTION 11(B) CHARTER MOTION

Somji J.

Overview

[1] The Applicants Mohamed Ahmed Ali and Everton Ambrose (“Applicants) have brought an application requesting a stay of proceedings on the grounds that there has been a violation of their right to a trial within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms [“Charter”].

[2] Both Applicants are charged with discharging a firearm with intent to wound and various other firearm offences arising from a drive-by shooting that occurred on March 12, 2018. The Applicant Mr. Ali is charged additionally with dangerous driving and other Criminal Code, R.S.C. 1985, c. C-46 (“Code”) driving offences. Mr. Ambrose is additionally charged with offences related to breaching a firearms prohibition order.

[3] The Applicants were both were remanded into custody following their arrest on March 12, 2018. They did not seek release until May 2020. They were both detained on May 28, 2020, following a bail hearing in the Ontario Court of Justice. They have been in custody awaiting trial for almost three years.

[4] A two-week trial is scheduled to commence on March 8, 2021 and to conclude on March 19, a period of 36 months and 6 days after the charges were laid. The Applicants concede that 5 months and 8 days of this period are attributable to defence delay, resulting in a net delay of 30 months and 28 days. The Supreme Court of Canada stated in R v Jordan, 2016 SCC 27 [“Jordan”] that where the net delay exceeds a period of 30 months, the burden is on the Crown to establish that the delay is justified as an exceptional circumstance.

[5] The Applicants’ trial was previously scheduled to commence on May 27, 2020, in the Ontario Superior Court of Justice. However, in the spring of 2020, court operations were suspended because of the COVID-19 pandemic and province-wide state of emergency. While some criminal proceedings were able to proceed virtually, all criminal trials were adjourned to July 6, 2020. The Applicants’ trial was one such trial.

[6] When court operations resumed, a new trial date was set for March 8, 2021, resulting in a delay of 9 months and 9 days. The Crown takes the position that this period of delay was caused by the COVID-19 pandemic and constitutes a discrete event that amounts to an exceptional circumstance justifying the delay beyond the 30-month ceiling set out in Jordan.

[7] The Applicants agree that the COVID-19 pandemic was a discrete event outside anyone’s control but argue that the Crown failed to take sufficient measures to ensure that inmates housed at prisons could proceed with a virtual trial during or after the court’s suspension. The Applicants claim that had the prison been able to facilitate a virtual trial, an earlier trial date within the 30-month ceiling would have been available to them. Hence, while the COVID-19 pandemic was a discrete event, the Crown and the correctional institutions did not adequately respond to mitigate the delay to make it an exceptional circumstance as defined by Jordan.

[8] The primary issue in this application is whether the Crown and justice system took reasonable steps to mitigate the delay that resulted from the COVID-19 pandemic to safeguard the Applicants right to trial within a reasonable time under s. 11(b) of the Charter.

Brief facts relating to the charges

[9] The Applicants are charged with firearms and driving offences. It is alleged that on March 12, 2018, the Applicants ambushed the complainant as he was leaving his home and entering his car. The Applicants followed the complainant in his vehicle and later opened fire on him while he was driving. The complainant called 9-1-1. The Applicants fled the scene and were caught by the police following a high-speech chase through central Ottawa. When stopped, the Applicants were the only occupants of the vehicle. Mr. Ali was the driver and Mr. Ambrose was in the rear passenger seat. The police located two handguns along the route which they allege match the cartridge cases found at the scene of the shooting based on forensic analysis.

[10] A two-week trial is scheduled to commence March 8, 2021.

Issues

[11] This application raises the following issues:

1. Does the net delay exceed the presumptive ceiling of 30 months? If so, how much of the delay is attributable to the COVID-19 pandemic?
2. Was the COVID-19 pandemic a discrete event that would constitute an exceptional circumstance justifying delay over the presumptive ceiling?

Analysis

Issue 1: Does the net delay exceed the presumptive ceiling of 30 months? If so, how much of the delay is attributable to the COVID-19 pandemic?

A. Analytical Framework: Jordan and the calculation of the delay period

[12] Jordan sets out the legal principles and framework for assessing 11(b) delay. Cases that are brought to trial in Superior Court, as is the case here, must proceed within the 30 months of the charges being laid (the presumptive ceiling). Where the total delay exceeds the presumptive ceiling, the burden shifts to the Crown to prove why the delay is reasonable. If the Crown cannot justify the delay, the court will order a stay of proceedings pursuant to s. 24(2) of the Charter.

[13] The calculation of delay involves several steps. First, the court must determine the total period of delay from the time charges were laid until the end of trial. Second, the court must subtract any defence delay from the total delay. This results in the net delay. If the net delay exceeds the presumptive ceiling, the Crown must establish that there were exceptional circumstances for the delay caused either by a discrete event or the fact that the case was particularly complex. Jordan at paras 5, 46-48, 49 and 60.

B. The Calculation of delay in this case

The intake period up to the first trial date October 29, 2018

[14] Charges were laid on March 14, 2018. The intake period was short and a trial date was quickly set within a month of laying charges. On April 12, 2018, the Applicants scheduled a five-day trial to commence in the Ontario Court of Justice on October 29, 2018. A trial was initially scheduled to be completed in less than seven months after charges were laid.

[15] At the August 17, 2018 appearance, counsel for the Applicants confirmed they were ready to proceed to trial on October 29, 2018.

The period up to the second trial date of March 23, 2020

[16] On October 12, 2018, Mr. Ambrose’s counsel applied to be removed from the record. The application was granted and it was anticipated that Mr. Ertel would be retained as new counsel for Mr. Ambrose and would need time to prepare. Mr. Ambrose also re-elected to trial in Superior Court. The trial time would be converted into a preliminary hearing. It was later discovered that the re-election had not been formally entered on the record, but the parties all understood that the October 29, 2018 trial dates were going to be converted to preliminary hearing dates.

[17] On October 19, 2018, Mr. Ertel confirmed he was counsel for Mr. Ambrose. He was not available to proceed to a preliminary hearing on October 29, 2018. Mr. Ertel sought an adjournment of the preliminary hearing. The Crown had refused severance of Mr. Ali’s matter. There was further discussion about whether the Crown was consenting to the adjournment request. The Crown indicated it would like to proceed with the preliminary hearing, but that given the complexity of the matter, it understood if the court would grant the adjournment. As per the transcript of October 19, 2018, the Crown explained the situation as follows:

MS. DUFORT: No. I think he needs counsel and I can indicate why. Even on a re-election to Preliminary Inquiry, I have six experts coming, most of them from the Centre for Forensic Science. It's a complex case from that standpoint. There's a lot of evidence. I think if Mr. Ambrose obviously has a new counsel now and he's been efficient, I can't really oppose that. Obviously I'm not consenting to it, but I can't, in a position to oppose it since he wished to retain counsel. It's a complex file.

[18] The presiding judge granted the adjournment and vacated the October 29, 2018, trial date.

[19] On November 2, 2018, both Applicants formally re-elected to have a judge-alone trial in Superior Court and consented to committal. The matter was adjourned to November 30, 2018, for a judicial pre-trial and first appearance in the Superior Court of Justice.

[20] The Crown and the parties agreed to examinations for discovery which were subsequently completed on May 8, 2019.

[21] On November 30, 2018, a judicial pre-trial was held and a new trial date scheduled in the Superior Court. Trial dates were offered for a three-week trial starting on either October 15, 2019, November 12, 2019, December 2, 2019, or January 6, 2020. Counsel was not available for those trial dates. A three-week trial was scheduled to commence on March 23, 2020. Had it proceeded, the trial was expected to conclude by April 10, 2020, 25 months after charges were laid.

[22] The Applicants concede that the period between October 15, 2019, and March 23, 2020 is defence delay. This is a period of 5 months and 8 days.

Period up to the third trial date May 19, 2020

[23] Due to a scheduling conflict for Mr. Ali’s counsel, the trial was further adjourned to May 19, 2020. This time four weeks were reserved for a three-week trial in the event that the trial judge would be unavailable for one of the weeks due to a judicial conference. Had the trial proceeded on May 19, 2020, it was expected to conclude on June 12, 2020, approximately 27 months after charges were laid. This trial date will be referred to as the May/June 2020 trial date.

Period up to the fourth trial date March 8, 2021

[24] In the spring of 2020, the COVID-19 pandemic was upon us. The Lieutenant Governor declared a state emergency in Ontario on March 17, 2020. Due to the urgent public health crisis caused by COVID-19, the Chief Justice of the Ontario Superior (“Chief Justice”) issued a directive suspending court operations except for urgent matters: Order of the Chief Justice of the Superior Court of Justice, March 15, 2020. All criminal matters scheduled between March 17, 2020 and June 2, 2020 were adjourned to the first week of June 2020. The Applicants matter was adjourned to June 2, 2020.

[25] Given that the first two weeks of the Applicants’ trial fell within the court suspension period and two weeks outside of it, defence counsel proposed shortening the witness list through admissions and proceeding as a two-week trial between June 2 and 12, 2020. The Crown agreed with the approach. Defence made admissions on evidence related to forensic analysis and GPS location and tracking. The admissions and cooperation of all the parties permitted the Crown to present its case within potentially nine days. The Crown sent an email to the Trial Coordinator on April 1, 2020, asking if two of the four weeks reserved for May/June 2020 could be retained and the matter proceed as a two-week trial in June 2020. The parties were advised that two local administrative judges of the region, Justices Maranger and Parfett, consented to the matter proceeding as a two-week trial beginning June 2, 2020.

[26] The trial did not proceed as scheduled. On May 5, 2020, the Chief Justice of the Superior Court extended the court suspension: Order of the Chief Justice of the Superior Court of Justice, May 5, 2020. All criminal trials were further adjourned to July 6, 2020.

[27] On May 27, 2020, the Applicants proceeded to a bail hearing before Justice Bourgeois of the Ontario Court of Justice. During the hearing, counsel for the Applicants reviewed the history of the file including the fact that the May/June 2020 trial dates had been lost due to the COVID-19 pandemic and consequent court suspension. Counsel for the Applicants also stated at the bail hearing that they had expressed their interest in a virtual trial and had been advised by Justice Parfett of the Superior Court that the capacity for in-custody trials did not yet exist, but to “stay tuned”. Counsel for Mr. Ali states at page 12 of the bail hearing transcript dated May 27, 2020:

MR. RUSSOMANNO: Your Honour, with the court indulgence, I just wanted to add one thing to that. Leo Russomanno, here. That the parties, at a judicial pre-trial, did pursue or seek to pursue the possibility of having our trial conducted remotely, but because of limitation with the technology, we're unable to conduct a remote trial. So, you know, Mr., Mr. Ali, I speak for Mr. Ali, that we were interested in that possibility in order to avoid any further delays in this case, given the length of time that they've been in custody, but we were advised that those, those measures were simply not available in this case.

THE COURT: Okay. Okay.

MR. GEIGEN-MILLER: Yes, I believe Justice Parfett said, "Stay tuned," but as of this time there is no indication of any capacity to do a two week, in custody trial remotely.

[28] The date of this judicial pre-trial and discussion with Justice Parfett is not endorsed on the indictment and no transcript was filed as to what was put on the court record following this judicial pre-trial in the Superior Court. However, the Crown confirms in its factum that there was a judicial pre-trial held on May 7, 2020. The Crown also agrees that counsel had canvassed the possibility of a virtual trial at this judicial pre-trial and were advised that the capacity for an in-custody trial did not yet exist but to “stay tuned.” The judicial pre-trial of May 7, 2020, was held during the period of the court suspension when matters were being addressed virtually.

[29] On May 28, 2020, Justice Bourgeois detained both of the Applicants. Mr. Ali was detained on the tertiary ground. Mr. Ambrose was detained on both the secondary and tertiary ground. In his bail decision, Justice Bourgeois considered the impact of COVID-19 and the consequent loss of the May/June 2020 trial dates on the Applicants who had been in custody for approximately 27 months when their trial was adjourned indeterminately. Justice Bourgeois noted that counsel had made efforts to streamline the process to proceed with the trial remotely, but the justice system could not yet accommodate a two-week virtual trial. Justice Bourgeois went on to add that at that time, no trials were being rescheduled anywhere in the province including trials that could proceed remotely: R v Ali and Ambrose, Reasons for Decision on Bail Hearing, Bourgeois J, May 28, 2020, Information No. 18-A10077, Ottawa. Justice Bourgeois stated at page 8 of the bail decision:

As pointed by counsel, these two individuals were awaiting trial, without having sought bail, for approximately 27 months when their trial was adjourned from the end of May to initially the end of June and again now indeterminately. They have tried to streamline the process and Mr. Ali agreed to have his trial proceed remotely, but the justice system cannot yet accommodate a two-week virtual trial. In fact, no trials anywhere in the province are being rescheduled yet, including trials that could proceed potentially remotely.

[30] Given the detention order, Applicants’ counsel asked Justice Bourgeois if he could order that the trial be expedited and that the matter be put into Assignment Court without any further adjournments. Justice Bourgeois questioned his authority to make a direction to the Superior Court which had carriage of the trial, but did state that the matter was urgent. His precise words at page 11 were as follows:

I have no hesitation that this matter should be expedited to trial, but no - that's not even here or there. I just don't know what kind of direction I shall give to the Superior Court who now has carriage of this, but if my direction assists in some way, I’m prepared to make a direction – give a direction that this matter, this trial should be expedited. I don’t know that I can say more given that it’s now in the hands of the Superior Court. But if there’s anything this direction can indicate is perhaps the urgency in which this matter should be dealt with from the perspective of an Ontario Court Judge who heard the bail hearing. I hope that’s – this direction is enough.

[31] Justice Bourgeois’ direction was noted on the Indictment. The matter was assigned to Assignment Court in the Superior Court on July 9, 2020.

[32] On June 2, 2020, the Crown wrote to defence counsel to advise that they were agreeable to proceeding virtually in the Superior Court of Justice and they would make inquiries about the feasibility of holding a virtual trial in the Superior Court of Justice.

[33] On July 9, 2020, the matter was further adjourned to July 22, 2020, for a judicial pre-trial at 11:00 am. On July 22, 2020, the matter proceeded to a judicial pre-trial before Justice Aitken. Following the judicial pre-trial, the matter proceeded to Assignment Court to set new trial dates. Both the Crown and defence accepted the first trial date that was offered by the Court for a two-week trial commencing March 8, 2021 and concluding on March 19, 2021. At that time, defence put on the record that they were agreeable to a virtual trial, but this was not possible with the accused in custody. However, as discussed further below, nothing was stated on the record as to whether an earlier virtual trial date was available and if so, what that date would have been.

[34] The total period of delay from the time charges were laid until trial completion is 36 months and 6 days. The Applicants agree that a period of defence delay of 5 months and 8 days should be subtracted from total delay resulting in a net delay of 30 months and 28 days.

[35] The net delay is over the presumptive ceiling and hence, the onus shifts on the Crown to prove the delay is justifiable as an exceptional circumstance: Jordan at paras 47 and 105.

Issue 2: Was the COVID-19 pandemic a discrete event that would constitute an exceptional circumstance justifying delay over the presumptive ceiling?

A. Is COVID-19 a discrete exceptional event?

[36] The Crown takes the position that the COVID-19 pandemic, the consequent province-wide emergency, and the resulting suspension of this Court’s operation is a discrete event that qualifies as an exceptional circumstance. These events precipitated an adjournment of the trial from May/June 2020 to March 8, 2021. The Crown argues that the entire period from the court suspension up to the start of the trial on March 8, 2021 should be counted as delay caused by a discrete exceptional event and deducted from the net delay. This brings the remaining delay under the presumptive ceiling. The Crown arrives at the calculation as follows:

Total delay 36 months and 6 days Subtract defence delay 5 months and 8 days = Net delay 30 months and 28 days Subtract COVID-19 delay 9 months and 9 days = Remaining delay 22 months

[37] In Jordan, the Supreme Court of Canada explained that there is no closed list of circumstances that qualify as exceptional, but that they generally fall into two categories: discrete events and particularly complex cases: Jordan at para 71. Exceptional circumstances lie outside the Crown’s control in that they are one, reasonably unforeseen or reasonably unavoidable, and two, they cannot reasonably be remedied: Jordan at para 105.

[38] The COVID-19 pandemic has been found to constitute a discrete event by multiple courts across the country: R v Simmons, 2020 ONSC 7209 [“Simmons”] at para 60; R v Drummond 2020 ONSC 5495, [2020] OJ No. 3908; R v Gharibi 2021 ONCJ 63 [“Gharibi”] at para 59; R v Cathcart, 2020 SKQB 270, [2020] SJ No. 415 [“Cathcart”]; R v Truong 2020 ONCJ 613 [“Truong”] at para 71; R v Loblaws Inc., 2020 ABPC 250 at para 66. The pandemic and its effect on people’s lives and the operation of multiple institutions, including the justice system, was not reasonably foreseeable. At the initial stages, the pandemic was certainly very much outside everyone’s control, and some might argue it still is. Justice Currie of the Saskatchewan Court of Queen’s Bench in Cathcart at para 18 cites the words of Justice Rambow in R v Folster, [2020] MJ No 187 (QL) (Man Prov Ct) at para 28 who stated:

If COVID-19 is not a discrete and exceptional event, then I’m not sure what is. We find ourselves in a pandemic in which no one, let alone the Crown, has a full measure of control.

[39] I find the COVID-19 pandemic resulting in a suspension of court services constitutes a discrete event.

B. Did the Crown and justice system do enough to mitigate delay from COVID-19?

[40] A finding that the COVID-19 pandemic and consequent court suspension was a discrete event does not necessarily qualify the entire time period thereafter as an exceptional circumstance justifying delay beyond the presumptive ceiling. The Supreme Court of Canada made it clear in Jordan that judges must scrutinize the efforts of the Crown and justice system in mitigating delay. Portions of the delay that the Crown and justice system could have reasonably mitigated may not be subtracted from the net delay: Jordan at para 75.

[41] In Jordan, the Supreme Court of Canada provided examples of the kinds of reasonable steps that can be taken by the Crown to address issues before the delay exceeds the ceiling. These include resort to case management processes to seek assistance from the court, working with defence to streamline evidence or issues for trial, and resorting to other appropriate procedural means: Jordan at para 70.

[42] Most of the cases addressing delay from COVID-19 have found the entire period of delay between the court suspension and the new trial date to be a discrete exceptional event to be subtracted from the net delay. The decisions of Gharibi and Simmons cite multiple examples of cases where the entire time from the start of the impact of COVID-19 up to the new scheduled trial date is deducted from net delay rather than just the period of the court suspension: Simmons at para 69 and Gharibi at para 47 and footnote 14. This does not preclude, however, the s. 11 (b) judge’s responsibility to assess whether there were also other causes contributing to delay during that same period: see R v Ottewell 2020 ONCJ 623 at paras 108, 118 and 119 where the delay caused by non-disclosure was attributable to the Crown and not COVID-19.

[43] In this case, had it not been for the pandemic and the two court suspensions in the spring of 2020, this trial would have been completed before the 30-month presumptive ceiling. The Crown submits that the entire period between May 21, 2020, up to the scheduled start of trial on March 8, 2021, is delay attributable to COVID-19 and should be deducted from the net delay. The remaining delay is 22 months and under the presumptive ceiling, and the onus shifts to the defence to explain that the delay is nonetheless unreasonable.

[44] The Applicants argue that even if COVID-19 was a discrete event, the Crown and judicial system failed to take reasonable steps to mitigate the delay to qualify the entire period as an exceptional circumstance as defined in Jordan. The Applicants argue that had the correctional institutions taken steps to facilitate virtual trials, their two-week trial could have started much earlier than March 8, 2021. The Applicants argue, therefore, that only a portion of the 9-month and 9-days is attributable to COVID-19.

[45] The problem with the Applicants’ argument is that it is not entirely supported by the evidentiary record filed in this case. After the court suspension was extended to July 6, 2020, and the entire May/June 2020 trial time was lost, the case was adjourned to Assignment Court on July 9, 2020. The parties agree there was also a judicial pre-trial in this interim period on May 7, 2020. At that judicial pre-trial, the possibility of a virtual trial was canvassed and there were discussions about whether this was possible for in-custody accused. However, nothing was put on the record following the May 7, 2020, judicial pre-trial, that earlier virtual trial dates were available.

[46] On July 9, 2020, the matter was further adjourned to July 22, 2020, for a judicial pre-trial. On July 22, 2020, a new trial date was scheduled. According to the Crown, both the “Crown and defence accepted the first date that was offered by the Court” for a trial which was March 8, 2021. Defence suggests that an earlier trial date would have been available if there was capacity for virtual trials for in-custody persons such as the Applicants. However, it is not entirely clear from the record that an earlier trial date was nonetheless available.

[47] According to the transcript of July 22, 2020, the Applicants put on the record that they were agreeable to a virtual trial, but this could not occur for in-custody accused. This was acknowledged by the Court. However, nothing was put on the record that earlier virtual trials were indeed available. The transcript for July 22, 2020, states as follows:

THE COURT: So we're looking for trial dates in this matter. It is judge alone, and we need two weeks. We, at this point, have to have courtroom space because both accused are in custody, and we don't believe they have a system up and running at the detention centre that would allow the accused to participate by Zoom, however....

TRIAL COORDINATOR: I can - we don't yet, but they're - I was asked yesterday about that project. It's in the works.

THE COURT: All right. Well if that should come to pass...

TRIAL COORDINATOR: Yes.

THE COURT: ...counsel are all in agreement that the majority of this trial could be done virtually. There might be one witness that might require courtroom time, but hopefully, virtually all of it could be done virtually if we had the capacity to bring the accused into Zoom.

TRIAL COORDINATOR: Okay. I will [indiscernible] that.

THE COURT: So two weeks, whatever you can come up with.

TRIAL COORDINATOR: Sure. One moment. March 8th, Your Honour.

[48] There are certain prerequisites to scheduling a trial date regardless of whether it is an in-person or virtual trial. In addition to Crown and defence counsel being available, the Trial Coordinator must ensure that there is a courtroom, judge, registrar, and reporter available. Even if the Applicants were agreeable to a virtual trial and the jail was able to facilitate their participation remotely, the evidentiary record does not clearly establish that an earlier date was available for a two-week trial. It remains unclear to me whether March 8, 2021 was simply the first trial date available - in person or virtual - or whether, as the Applicants suggest, an earlier trial date would have been available if the matter could proceed virtually. The onus is on the Applicants bringing the Charter motion to present the evidence in support of their application.

[49] Furthermore, the Applicants make no reference in their materials as to what these earlier virtual trial dates would have been, leaving it impossible for the court to calculate what portion of the delay caused by COVID-19 they argue should be subtracted from the net delay. While the Applicants accept that some delay resulting from COVID-19 should be discrete exceptional delay, they do not delineate what portions.

[50] If we considered only the period from May 21, 2020 to July 22, 2020, as discrete exceptional delay – this being the period between when the trial was scheduled to start but couldn’t due to the court suspension and the date of Assignment Court when the matter was ready to be rescheduled for trial - it would amount to a period of 2 months and 1 day. The Applicants do not dispute that the net delay in this case is 30 months and 28 days. If one were to subtract even the bare minimum of 2 months and 1 day as COVID-19 delay, the remaining delay would be under the 30-month presumptive ceiling. The onus would then fall on the Applicants to show the delay is nonetheless unreasonable. Defence did not make any such arguments.

[51] Even if I am incorrect and earlier dates were available for virtual trials, I find the unavailability of an in-custody virtual trial is not determinative of the issue. The Applicants argue that although the pandemic and court closure prevented the trial from proceeding on the scheduled dates, “it could hardly be said that a problem was not foreseeable.” Had there been more “emergency preparedness” both during the closure and sometime after, this case could have proceeded to trial earlier. Counsel for the Applicants point out that even now, virtual trials for in-custody accused remain impossible.

[52] The challenge with this argument is that it focuses exclusively on whether the local correctional institution is able to facilitate virtual trials. The responsibility for scheduling and delivering criminal trials lies with the Superior Court. In doing so, the Superior Court must work cooperatively with a number of institutional agencies to deliver judicial proceedings. This includes the Crown and staff (i.e. court registrars) employed by the Ministry of the Ontario Attorney General (“MAG”), employees from court reporting and translation services, police agencies responsible for transferring inmates and ensuring courthouse security, as well as staff and management of the jails where the Applicants are held. Each one of these agencies has its own legal mandate and policies that govern its operations, services, and employees.

[53] During and after the court suspensions, and even as the pandemic continues, a large number of factors have to be considered involving the input of a variety of stakeholders in the criminal justice system in order for decisions to be made around court operations and the safe delivery of court services: Truong at para 75. In any given jurisdiction, a variety of logistical challenges will present themselves whether with respect to the health and availability of witnesses, quarantining requirements, or safe access to facilities for in-person or video testimony: Cathcart at paras 14-16; see also R v G.R., 2020 ONCJ 578 at para 61-63 as an example of how COVID-19 has impacted an already tightly-spaced courthouse. The question that needs to be addressed is not whether Zoom trials were possible from the jail, but whether the Crown and the justice system, keeping in mind the number of stakeholders involved, did enough to mitigate delay that resulted from the onset of the pandemic. I find that it did.

[54] First, the Crown took several steps to preserve part of the May/June 2020 trial date following the first court suspension. During the court suspension, neither in-person nor virtual trials were proceeding. When the initial court suspension was announced on March 15, 2020, Crown and defence both realized that part of their trial was scheduled in the period after the suspension was expected to be lifted. The Crown re-examined its case and sought admissions that would permit the Crown to call its case within nine days. Defence agreed to the admissions and that the matter could proceed as a two-week trial rather than a three week trial. The Crown wrote to the Trial Coordination Office which raised the matter with the judiciary. Two judges of the Superior Court agreed that the matter could proceed to a two-week trial upon the suspension being lifted on April 3, 2020.

[55] Unfortunately, the two-week trial could not proceed because the state of emergency continued precipitating a further extension of the court suspension until July 3, 2020. Nonetheless, this exemplary cooperation by the Crown, defence, Trial Coordination Office, and Judges of the Superior Court is precisely what the Supreme Court of Canada sought to encourage in Jordan. I find it is a clear example of a reasonable step taken to mitigate delay.

[56] Second, once it became clear that the trial could not proceed at all due to the extension of the court suspension, the Crown considered alternatives such as the possibility of a virtual trial. The Crown sent an email to defence counsel on June 2, 2020, indicating that it would make inquiries about the feasibility of conducting a virtual trial. While this was ultimately not feasible for in-custody accused at that time, this is nonetheless another example of a reasonable step taken to consider alternative procedures for reducing delay. In assessing exceptional circumstances, the Crown is not required to show that their attempts to mitigate delay were successful, but that reasonable steps were taken: Jordan at para 70.

[57] Third, efforts were also made in the Superior Court East Region where this trial was to take place to mitigate potential delays caused by the province-wide court suspension. When the initial court shutdown was announced on March 15, 2020, all court operations except for urgent matters were suspended. On April 2, 2020, less than three weeks after the suspension, Justice MacLeod, the Regional Senior Judge of the East Region, issued a Notice to the Profession East Region outlining that in addition to urgent matters, the courts in the East Region would be available to have some matters proceed virtually as of April 6, 2020. For criminal matters, this included bail and detention reviews, judicial pre-trials, guilty pleas, and habeas corpus applications: Notice to Profession – East Region, April 2, 2020. It is an example of a reasonable step taken by the justice system to mitigate delay by allowing regional courthouses that were equipped and able to proceed virtually without compromising the health and safety of staff and public to go ahead and do so. As stated in the Notice to Profession, April 2, 2020 at page 1:

Effective April 6, 2020, in an effort to meet its constitutional responsibilities without endangering the health of those who use or work in the court, the court will offer additional services through virtual courts. Of necessity, this may involve untested and novel processes which may depend upon the type of case and the availability of resources in each judicial centre.

[58] Fourth, consideration was given as to how to prioritize and reschedule cases that were adjourned due to the pandemic. The July 22, 2020 Assignment Court was held not long after the court suspension was lifted. Two judicial pre-trials were held to address the specifics of this case following the loss of the May/June 2020 trial dates. The Court would also have been aware of Justice Bourgeois’ direction following the bail hearing that the trial should be expedited.

[59] Furthermore, in assessing whether the justice system did enough to mitigate delay, I must consider that this was one of many cases being rescheduled because of the court suspension. Some form of triage system had to be put in place to assess priority matters and assign dates accordingly. As explained by Justice Nakatsuru in Simmons, the impact of discrete events do not necessarily end when the event is over. As seen with COVID-19, the consequences to the criminal justice system extended beyond the periods of the court suspension: Simmons at paras 69-70.

[60] The pandemic triggered the court suspension which in turn had a trickledown effect on a variety of court processes and procedures including the scheduling of cases. The evidence to date suggests that both the Crown and the justice system were committed to providing an orderly process for rescheduling cases once court operations resumed: Notice to the Profession – Court Operations in the East Region during the COVID-19 Health Emergency (May 12, 2020), Criminal Proceedings.

[61] Finally, measures were swiftly put into place to resume in-person hearings as soon as it was reasonably safe to do so. As already indicated, within three weeks of the initial suspension, the Superior Court East Region was able to provide virtual access for a select number of proceedings in addition to urgent matters. At the same time, steps were being taken to ensure judicial centers across the province, including the Ottawa courthouse, could resume with in-person criminal trials in a safe environment: Notice to the Profession, Litigants, Accused, Media and Members of the Public (June 25, 2020), Chief Justice Morawetz of the Superior Court of Justice. Some of the changes included refurbishing courtrooms with plexiglass, implementing health screening procedures for people entering courts, and developing protocols and practices to ensure proper masking and distancing within courtrooms: Gharibi at para 49. These are just a few of the changes that have been made in response to the pandemic so that in-person proceedings and trials could safely resume.

[62] The positive impact of these changes is apparent. When the first province wide emergency was declared on March 2020, it necessitated a suspension of court operations. All trial matters were simply adjourned. Almost a year later, a similar state of emergency was declared in Ontario taking effect on January 14, 2021 to manage a second wave of the COVID-19 pandemic: O. Reg. 11/21. This time around, in part because of the measures described above, court operations were not suspended and in-person judge alone criminal trials continued. This is not to suggest that court operations might not be suspended again in the future. As we have witnessed to date, controlling the spread of COVID-19 virus and more recently its variant forms, remains an ongoing challenge.

[63] I find the Crown and justice system did take sufficient steps to mitigate delay, and the entire period of 9 months and 9 days should be subtracted from the net delay.

[64] As a final word of caution, it is important to note that the suddenness of the pandemic and the complexity of the criminal justice system cannot be relied on indefinitely to justify delay over the presumptive ceiling as an exceptional circumstance. As stated in Jordan, institutions must be provided some time to adapt to significant changes. Accordingly, when Jordan was decided, the Supreme Court of Canada built in a transitional period to allow the criminal justice system to adjust to the presumptive ceilings and new legal framework for assessing delay: Jordan at para 97. As courts become more accustomed to operating in the circumstances of the pandemic, including the leveraging of technology to hold hearings in remote formats, the justification for a grace period will eventually recede. The upheavals to the justice system caused by the COVID-19 pandemic have been challenging, but they have also highlighted the justice system’s underlying resiliency and capacity to adapt. As we continue to deal with the effects of the COVID-19, the Crown and the justice system will be expected to demonstrate that they are continually adopting reasonable measures, including embracing new technologies, to mitigate delay so as to ensure the constitutional right of an accused to trial within a reasonable time is respected.

C. Complexity

[65] While some reference was made by the Crown to the complexity of this file on October 19, 2018, the Crown did not argue that complexity constituted an exceptional circumstances. This issue has not been considered.

D. Below the presumptive ceiling: Defence has not shown the delay is unreasonable

[66] Delay that falls under the presumptive ceiling may still be found to be unreasonable pursuant to s. 11(b) of the Charter if the defence can establish that one, it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and two, the case took markedly longer that it reasonably should have: Jordan at para 82. Reasonable time requirements depend on a variety of factors such as the complexity of the case, local considerations, and the Crown’s role in moving the case forward: Jordan at paras 87-91.

[67] Stays of proceedings in cases of delay under the presumptive ceiling will be rare and limited to clear cases: Jordan at 48.

[68] Neither the defence nor the Crown addressed these arguments in their pleadings.

[69] I find in this case that the defence did take meaningful steps to expedite the proceedings. One, the Applicants made admissions to reduce the time of trial to two weeks in order to salvage two of the four weeks scheduled in May/June 2020 following the first court suspension; two, the Applicants agreed to a virtual trial when the May/June 2020 trial date was lost altogether; three, counsel for the Applicants requested the judge presiding at the bail hearing to order an expedited trial alerting the Superior Court to the urgency of the matter; and four, Applicants’ counsel participated in case management processes and moved quickly to get the case into Assignment Court once bail was denied so they could get as early a trial date as possible. Certainly, once the pandemic hit and there was a risk that the trial would have to be adjourned, defence did take meaningful steps to have the matter tried quickly.

[70] I do not find, however, that given the particular circumstances of this case that this matter took markedly longer that it reasonably should have. The Applicants had a 5-day trial set in the Ontario Court of Justice on October 2018 within seven months of the charges being laid. This is considerably shorter than what was later scheduled for trial. Whether the trial would have been completed in that time is unclear. However, the Applicants re-elected to Superior Court, Mr. Ambrose changed counsel, the October dates were lost, and this precipitated obtaining new trial dates in the Superior Court. While earlier dates were available in the Superior Court, including dates before the pandemic hit, counsel was not available until May/June 2020. The pandemic hit, and I need not repeat the consequences that followed. After the courts resumed operations, the Applicants were provided and accepted the first available trial date. The Crown has acted diligently in moving this matter forward. The trial is scheduled to be completed 31 months after charges were laid. While this is certainly a long period of time to be in custody awaiting trial, I do not find in these particular circumstances, including the unexpected global pandemic, that the case has taken markedly longer than it should have.

[71] The application for a stay of proceedings is dismissed.

Somji J. Released: February 18, 2021