ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Peterson, for the Crown
- and -
ANDREW SCHARDT
R. Wood, for the Defendant
Accused
HEARD: April 1, 2021 via Zoom. (decision delivered orally April 23, 2021
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Justice T. Nieckarz
REASONS FOR DECISION ON APPLICATION
OVERVIEW:
1This is an application brought by the Accused for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”). The Accused alleges a violation of his right to be tried within a reasonable time as enshrined in s. 11(b) of the Charter.
2The Accused stood charged with five counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. Each count pertained to a different, unrelated complainant. Counts 1 and 2 on the indictment were resolved in December 2020, leaving Counts 3, 4 and 5 to proceed. These remaining counts are somewhat historical, with Counts 3 and 4 alleged to have occurred in 2014 and Count 5 alleged to have occurred in 2011.
3On application by the Accused, and with the consent of the Crown, each of the remaining counts were severed and ordered to proceed to trial separately. Despite this, the Crown and the defence have agreed that it is appropriate to hear and determine the s. 11(b) application for each matter together.
4The Accused argues that the presumptive ceiling has been exceeded on all three counts and the charges must be stayed. Other than one brief period when new counsel came on the case, the Accused argues there is no defence delay. The Accused further argues that the Crown cannot meet its burden of justifying the delay based on the presence of exceptional circumstances. The Accused takes the position that the sole cause for exceeding the permissible period of delay is Crown adjournment requests due to Crown lack of preparedness.
5Specifically, the defence calculates the delay as follows:
a. With respect to Count 3 (R.C.), this trial has now been scheduled to conclude on June 9^th^, 2021. The total time from the date of the charge to the anticipated conclusion of trial is 40 months and 1 week.
b. With respect to Counts 4 (J.S.) and 5 (A.A.), trial dates have not been scheduled. Given that three separate judges are required to hear the cases in Kenora, and judges are not all currently travelling, these matters have not yet been scheduled for trial. The defence acknowledges that any delay after April 1, 2021 is due to the COVID-19 pandemic and constitutes a discreet event. The defence argues that the total period of delay for each of these three cases from February 1, 2018 to April 1, 2021 is 38 months.
6The Crown agrees with the total delay calculated by the defence. The Crown also concedes that even after deductions are made for defence delay, the presumptive ceiling is surpassed. The Crown argues that the delay in these proceedings is attributable to exceptional circumstances by way of unanticipated discreet events that excuse the delay and warrant a dismissal of the Application.
7The Crown’s argument raises questions as to what delay should be attributed to the defence, and whether the indirect impact of the COVID-19 pandemic on justice system participants, and this case, warrant an excusal of delay as a discreet event.
8For reasons that follow the Application is granted, and all three counts are stayed.
TIMELINE
9The following table, constructed from separate tables prepared by each counsel based on the evidence filed, summarizes how these charges proceeded:
Ontario Court of Justice:
Next date
February 1, 2018
A new information is laid adding the three counts involved in this Application (original information had 2 complainants).
February 6, 2018 (Sioux Lookout)
February 6, 2018
First appearance – adjournment requested by defence.
March 20, 2018
March 20, 2018
2 count information withdrawn – Defence seeks adjournment to review disclosure received March 8, 2018 re the three new counts.
April 24, 2018
April 24, 2018
Agent for defence counsel requests further adjournment to June date to set next step. Date is intended to coincide with when defence counsel is next in Sioux Lookout.
June 12, 2018
June 12, 2018
Defence received new disclosure on June 12, 2018 and states he has received “globs of information” to this point and wants it consolidated into a united brief. Crown agrees to provide and indicates that the officer is working on the brief.
July 31, 2018
July 31, 2018
JPT is set for October 1, 2018, with further return date of October 16. Affidavit filed by defence indicates that late August and September dates were offered by the Court. Crown requested October dates.
October 1, 2018 JPT and October 16 return date. Affidavit filed by defence indicates the October dates were at the request of the Crown.
October 1, 2018
Judicial Pre-Trial
October 16, 2018 return date.
October 16, 2018
March 19 and 20, 2019 selected for a 2-day preliminary hearing. Court offered earlier dates in March. Defence and Crown requested these dates.
March 19 & 20, 2019 for preliminary hearing.
March 19, 2019
First day of preliminary hearing. Accused elects judge and jury trial. First witness testifies, A.A. (count #5). During her direct evidence it is discovered that she gave three statements to the police prior to her 2018 statement, with the first being one week following the alleged assault. The defence was only aware of one prior statement, with the others coming as a surprise. The matter is stood down for the police to attempt to locate the statements. They are unable to.
March 20, 2019
Day 2 of preliminary hearing. Defence indicates another day must be added as lengthier cross-examination than he had anticipated was necessary to explore issues surrounding the missing statements. Court offers April 5, 29, May 3, 22 & 23. Crown indicates she will forgo vacation day to make herself available. April 5^th^ date offered by the court subject to the availability of a courtroom. Defence indicates he is not available April 5^th^ due to his travel schedule but is available April 29. While it is not clear, the April 29^th^ date does not appear to have been selected due to uncertainty as to courtroom availability. May 3^rd^ and June 10^th^ scheduled (the later as back-up only).
May 3, 2019 for preliminary hearing continuation.
May 3, 2019
Preliminary Hearing completed.
June 18, 2019 for decision on committal.
June 18, 2019
Accused committed to stand trial. Crown suggests July 29/2019 SCJ assignment court.
July 29, 2019 SCJ assignment court.
Superior Court of Justice:
July 29, 2019
Same firm retained by Accused, but different counsel assumes carriage and seeks an adjournment to familiarize herself with the file.
August 26, 2019 Defence concedes 1-month defence-caused delay
August 26, 2019
Judicial pre-trial is scheduled. Earlier dates offered by the court, some of which were available to the defence. October 10^th^ earliest date available to the Crown.
October 10, 2019 for JPT
October 10, 2019
JPT held. ENDORSEMENT: “Defence counsel is to forthwith advise if it intends to re-elect.” 2.5 days for pre-trial motions were authorized.
October 28, 2019 for assignment court to set pre-trial motion dates and add to September 2020 jury sitting list.
October 28, 2019
Adjournment request. Issue of re-election being contemplated by defence, and Crown had not confirmed dates offered for pre-trial applications. Prior to this date, dates were canvassed for pre-trial applications with the trial co-ordinator and offered for June 22-24, 2020, based on September jury sittings for trial.
November 18, 2019
November 18/2019
Confirmation of pre-trial applications for June 22-24/2020.
June 22, 2020 for pre-trial applications September 10, 2020 to speak to the jury sittings September 29, 2020 for jury selection. (Note: Original 30-month period, without adjustment for defence delay, reached in August 2020.
COVID-19 Pandemic
March 15/2020
SCJ Order of Chief Justice All matters scheduled between March 17, 2020 and June 1, 2020 are adjourned to June 2, 2020
April 2, 2020
SCJ Notice to the Profession Outlined limited non-urgent matters the Court would hear: Joint submission guilty pleas Out-of-Custody JPT Extending stays of bail pending appeal orders
April 20, 2020
On April 20, 2020, the Court issued a Notice to the Profession regarding the suspension of jury trials.
The Notice advised that jury selection and jury trials would remain suspended, until September at the earliest.
May 4/2020
Trial Management Conference held by telephone. Court offers, and Crown and defence agree to proceed with pre-trial applications as scheduled June 22-24, virtually. The possibility of re-election to judge alone was discussed given the uncertainty surrounding jury trials. The defence indicated it was a possibility depending on the outcome of the applications. Crown contemplated a similar fact application, defence contemplated severance application and lost evidence Charter application. Timelines set for the delivery of materials.
May 5, 2020
Order of the Chief Justice of the Superior Court of Justice All matters adjourned to July 6, 7, 8, 2020. This matter unaffected in light of conference on May 4^th^.
May 22, 2020
Deadline for Application Materials. Defence materials served and filed by the deadline. No Crown materials filed.
June 12, 2020
Deadline for Response materials. No response by the Crown to the defence applications.
June 16, 2020
Crown filed Adjournment application.
June 22, 2020
Crown application to adjourn pre-trial applications. Crown wishes to confirm if all complainants still wish to proceed. Crown indicates she had only been able to reach 2 of the 5 complainants. If the remaining complainants do not wish to proceed, the applications would be “somewhat moot”. Defence acknowledges it may be prudent for the Crown to obtain these instructions and consents but does not waive delay.
At the request of counsel, adjourned to a date to be set by counsel with the trial co-ordinator. Court expresses some concern about not having a date, but Crown indicates she will not likely know what is happening by the next assignment court. Court advises counsel to “keep your eye on it”.
July 27, 2020
Defence counsel contacts the Crown to inquire as to status and to reschedule pre-trial applications. Crown advises she is not ready to proceed.
August 20, 2020
Notice to Profession NW: Jury trials to resume in Thunder Bay October 2020. Court is working on securing a site for Kenora. Date for resumption of Kenora jury trials still unknown.
August 28, 2020
Crown advises defence she is now in a position to set new dates for the applications. All counts are proceeding.
September 9, 2020
Correspondence between Crown, Defence and Trial Coordinator. Case Management Dates offered – Sept 28, 29, 30, Oct. 1 and further October dates. Both Crown and defence accept October 1/2020.
September 10, 2020
Original date for Jury Sitting TBST
Jury Sitting suspended due to COVID-19
September 29, 2020
Original date for Jury Selection
Jury Sitting suspended due to COVID-19
October 1, 2020
Case Management Conference held by zoom. Endorsement made indicating that all pre-trial applications are proceeding and that 2 ½ days are required. Endorsement made also reflects further discussion surrounding the possibility of re-election depending on the outcome of the applications. It is agreed that unless the defence requests otherwise, the trial is to be scheduled once the applications are decided. Until that time, it will not be known whether a jury trial or judge alone trial is required. Jury trials still not being scheduled due to the pandemic.
October 26, 2020 assignment court to confirm dates for pre-trial applications.
October 26, 2020
Assignment Court. New pre-trial application dates set for December 14, 15, 18 virtually.
December 14, 2020
November 14, 2020 and December 4, 2020
Crown application and responding materials due.
None filed by the Crown until new Assistant Crown assigned to the case and responding materials filed December 11, 2020. No similar fact application served.
December 14, 2020- December 18, 2020
Matter adjourned to December 18, 2020. Crown abandons similar fact application and consents to severance. Advises that counts 1 and 2 on the indictment are resolved. Lost evidence application argued for one-half day on December 18, 2020 and decision reserved.
January 25, 2021 assignment court to set trial dates.
December 22, 2020
Email Correspondence – trial dates requested by the defence for three separate judge alone trials. Options canvassed for in-person and virtual. Dates offered for two trials the week of April 19, 2021 and one the week of June 7, 2021 (all in-person, subject to COVID-19 restrictions). Crown indicates availability and consent to Zoom, if required. Court subsequently advises that due to new Notice to the Profession dated January 13, 2021, April 19^th^ date is no longer in-person. Defence counsel only available June 7, 2021 in any event.
January 25, 2021
Defence counsel seeks adjournment while awaiting pre-trial decision on lost evidence application. Court notes that trial dates are being offered the week of June 7 and encourages defence and Crown to confirm those dates. Crown confirms availability. Defence to confirm at next set date.
February 22, 2021 assignment court.
February 22, 2021
Assignment court. Accused formally re-elects to judge alone trial. 11(b) application is scheduled for April 1, 2021. Accused indicates seeking three separate judges for in-person trial. Adjourned to canvass further judicial availability and for Defence to obtain instructions re virtual trial.
To March 29/2021 assignment court to sort out individual trial dates and trial type (in person or by zoom). Tentative trial dates set aside the week of June 7^th^
March 29, 2021
Assignment Court. Accused not consenting to virtual trial.
Confirmed 2-day trial June 7, 2021 for R.C. (count #3). Unable to confirm two other trial dates for in-person trial. Adjourned to April 1^st^.
April 1, 2021
Pre-trial application Hearing – s.11(b)
April 23, 2021 for decision
ANALYSIS:
The Legal Framework:
10Section 11(b) of the Charter provides that a person who is charged with an offence has a right to be tried within a reasonable time.
11The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (“Jordan”) set out a framework for determining whether the rights of an accused to a trial within a reasonable time pursuant to s. 11(b) of the Charter, have been infringed.
12Jordan sets a ceiling beyond which delay in a criminal proceeding is presumptively unreasonable. For cases in the Superior Court of Justice, the presumptive ceiling is 30 months from the date of the charge to end of the trial: Jordan, at para. 49.
13Once the Defence has established a delay that exceeds the ceiling, the Jordan framework shifts the burden to the Crown to rebut the presumption of unreasonableness by establishing that the delay was caused by exceptional circumstances beyond its control: R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24.
14The Jordan framework was designed as a proactive approach to remedy a “culture of complacency” that the Supreme Court identified as pervasive in criminal proceedings. The expectation is that with all participants in the criminal justice system knowing in advance what their obligations are, proactive measures can be taken to avoid and/or remedy unnecessary delay.
15As explained further by the Supreme Court in R. v. Cody, [2017] 1 S.C.R. 659, 2017 SCC 31, at para. 36, the Jordan framework requires all participants in the system to share in responsibility for unnecessary delay.
16In R. v. Coulter (2016), 133 O.R. (3d) 433, 2016 ONCA 704, at paras. 34-41, the Court of Appeal summarized the mechanics of the Jordan framework as follows:
- Calculate the total delay, starting from the date of the charge to the actual or anticipated end of trial;
- Subtract any defence delay, which results in the “net delay”;
- Compare the net delay to the presumptive ceiling;
- If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable, and the Crown must rebut the presumption by establishing the presence of exceptional circumstances;
- If the Crown fails to rebut the presumption, then a stay will be granted;
- Generally, exceptional circumstances will fall under the categories of discrete events and particularly complex cases;
- Subtract the delay caused by discrete events from the net delay, leaving the “remaining delay”;
- If the remaining delay still exceeds the presumptive ceiling, then the court must consider whether the case was particularly complex such that the time it has taken is reasonable. If it is not, then a stay will follow; and
- If the remaining delay falls below the presumptive ceiling, then the onus shifts back to the Defence to show that the delay is unreasonable.
Total Delay:
17The Crown and the Defence agree that for count #3 the total delay is to be calculated from February 1, 2018 to June 9, 2021 (40 months, 2 weeks), and for counts #4 and #5 from February 1, 2018 to April 1, 2021 (38 months). The defence concedes that delays post-April 1, 2021 with respect to trial scheduling of counts 4 and 5 are entirely related to COVID-19 and constitute a discrete event. There is no dispute by the Crown as to the Defence calculations for total delay.
Net Delay - Subtract Defence Delay:
18Defence-caused delay is a contentious issue in this case. The Crown argues that there are at least five, and possibly six periods of defence delay. Otherwise, the Crown acknowledges that counsel for the defence was diligent in her attempts to have the matter heard in a timely fashion.
19Every actor in the justice system has an obligation to ensure that criminal proceedings are carried out within a reasonable time. This includes accused persons. Because the Charter governs state conduct, any delay caused by the defence does not count towards the presumptive ceiling. Accordingly, the conduct of the defence must be examined: Jordan, at paras. 21, 49 and 60 and R. v. Cody, at paras. 1, 32-33.
20The defence concedes one period of delay. The defence concedes that the four-week period from July 29, 2019 to August 6, 2019 constitutes defence delay. Otherwise, the defence denies any delay properly attributable to the defence under the Jordan framework.
21The element of defence delay has two components. The first is defence waiver. The second is delay caused solely by the conduct of the defence: R. v. Coulter, at para. 42.
22Defence caused delay comprises situations where the accused’s acts either directly caused the delay or are shown to be a deliberate and calculated delay tactic: R v. Safdar, 2018 ONSC 7067, at para. 107 (reversed on other grounds, 2021 ONCA 207).
23Defence actions taken legitimately to respond to the charges, such as applications or requests that are not frivolous will not count as defence delay. Similarly, time needed for preparation will not be attributable to defence delay. Examples of defence-caused delay often include frivolous applications or requests, and periods during which the court and Crown are ready to proceed but the defence is not. This is not an exhaustive list, and such determinations are “highly discretionary”: Jordan, at paras. 54, 60-66 and R. v. Cody, at paras. 28-31.
A. April 24, 2018 – June 12, 2018 (7 weeks)
24The Crown argues that this seven-week period of delay should be found to be an implicit defence waiver or defence caused delay. The Crown acknowledges that some adjournment may have made sense at the time given the evolving nature of the case, but it takes issue with the length of the adjournment. The Crown notes that the Sioux Lookout court sits weekly. Despite this, a lengthy adjournment was requested based solely on the next time counsel was travelling to Sioux Lookout.
25The defence argues that no delay should be attributed to it. This was only the third appearance in the matter. Counsel needed further time to adequately consider the matter, particularly given the new charges. Disclosure was still ongoing in the context of a large file. There is no evidence that the Crown was ready to proceed.
26I agree with the Crown that seven weeks is attributable to the defence. This was a lengthy adjournment made at the request of the defence, and the date was determined solely by counsel’s travel schedule. The fact that the Crown indicated on the record that there had not yet been any discussions with the defence does not equate to the Crown not being ready to proceed with setting the next step. The presiding judge specifically noted for the record that the adjournment to June 12^th^ was a defence request.
27I acknowledge that this matter took on a different complexion for the defence in February 2018 with the addition of three further counts to the indictment, involving three additional complainants. This necessitated two adjournment requests by the defence prior to this one. I do not fault counsel for wishing to take time to consider these developments, and for this reason the adjournment requests made on February 6^th^, 2018 and March 20, 2018 were eminently reasonable. A further brief adjournment on April 24^th^, 2018 may have also been reasonable if further disclosure was still being received, but this was a lengthy adjournment and the record is clear that the sole reason for it was convenience of counsel. Again, I do not fault counsel for wanting to schedule matters to coincide with already scheduled travel dates to the Sioux Lookout court, but this delay should not fall at the feet of the Crown.
B. June 12, 2018 – July 31, 2018 (7 weeks)
28The record is clear that this adjournment was requested by the defence. Additional disclosure had been received and given the volume of disclosure received and the form in which it was received, the defence sought a further adjournment while it awaited a “united brief” from the Crown.
29The Crown does not deny that the defence request for a united brief was reasonable. The Crown does dispute that a further lengthy adjournment was warranted by the defence while it awaited the “united brief”. The Crown argues the issue was not that the defence did not have disclosure and therefore could not set the next step; he had the disclosure but simply did not like the format. The form in which the disclosure was received should not have delayed the setting of a judicial pre-trial date.
30The defence argues that the adjournment request was reasonable while counsel awaited additional disclosure. I disagree. The defence has provided no evidence to suggest that the format in which the disclosure was received made it unruly to work with such that a further lengthy adjournment was necessitated. This does not mean that the defence request for disclosure in a more workable format was unreasonable; it was not. I do, however, agree with the Crown that this was not a barrier to the case moving forward with the setting of a judicial pre-trial date. By this point, the case was already four months old with no substantive step taken. It needed to move forward.
C. April 5, 2019 – May 3, 2019 (4 weeks)
31The preliminary inquiry was scheduled for two days, concluding on March 20^th^, 2019. An additional day was required as a result of evidence of the complainant A.A., that took both the Crown and the Defence by surprise. This additional day could not be scheduled until May 3^rd^, 2019.
32The Crown argues that the six-week period between March 20 – May 3^rd^, 2019 constitutes a discreet event, which should be deducted from the net delay. For the reasons stated below in this decision, I disagree.
33In the alternative, the Crown argues that the four-week period from April 5, 2019 to May 3, 2019 constitutes defence delay. The basis for this argument is that the Crown and the court were available April 5^th^, 2019 while the defence was not.
34In R. v. Mallozzi, 2018 ONCA 312, at para. 3, the Court of Appeal stated that when the defence is not available, but the Crown and the court are, this will constitute defence delay and will be subtracted from the total delay.
35However, the matter is not that simple. All the circumstances must be considered: R. v. Albinowski, 2018 ONCA 1084, at para. 46 and R. v. Simmons, 2020 ONSC 7209, at paras. 21 and 29.
36In reviewing the circumstances surrounding this period of delay I cannot attribute it to defence caused delay. I note that:
a. The transcripts reveal that the original time estimate for the preliminary inquiry would have sufficed, but for the surprise evidence of the complainant. As I conclude below, this evidence should not have come as a surprise to the Crown.
b. It is not very clear as to why defence counsel rejected the April 5^th^ date. He expressed a concern for his travel schedule but did not expand on what that concern was. It is unknown whether he had a prior commitment, other travel plans, or what this comment referred to.
c. Having said this, the April 5^th^ date was short notice, particularly for busy defence counsel and particularly given that the appearance required further travel. While Jordan requires even busy defence counsel to make a greater effort and flexibility with scheduling and does not permit the defence to benefit from delays caused by a failure to do so, the short notice and other travel obligations may offer a reasonable explanation for counsel’s remarks.
d. Most importantly, the transcript is not clear whether April 5^th^ was a firm date that was available to the court. While the court offered the date, it did so subject to courtroom availability, which had yet to be confirmed.
e. April 5^th^ was not the only date offered. The court offered other dates. The next date offered was April 29^th^. Again, this date was subject to courtroom availability. Both counsel were available. The court also offered the May 3^rd^ date, and again, both counsel confirmed their availability. After consulting with the trial co-ordinator, the court confirmed May 3^rd^ as the return date, with June 10^th^ as a further date if required. It was never stated on the record whether there was courtroom availability for April 5^th^ or April 29^th^.
D. October 28, 2019 – November 18, 2019 (3 weeks)
37The Crown argues that while this three-week adjournment requested by the defence did not contribute to any delay in the ultimate setting of dates, it still constitutes a period of defence waiver of time and should be deducted from the total delay.
38The defence disagrees and argues that the context surrounding this adjournment request is important. I agree with the position of the defence.
39The matter had already been placed on the jury list for September 2020. Prior to the October 28^th^ appearance, the defence had sought dates from the trial co-ordinator for the hearing of the pre-trial applications. Keeping in mind the September trial date, the court offered June 22^nd^ – 24^th^ as the pre-trial application dates. The Crown had not confirmed availability for these dates while it awaited the defence position on re-election. The pre-trial application dates had, however, been held for this matter. When the matter returned on November 18^th^, 2019, they were confirmed.
40The adjournment of three weeks did not contribute to any delay. There is no basis for a finding of an implicit waiver on the part of the defence to the inclusion of this period of time in the overall assessment of reasonableness. No deduction is warranted from the total delay on account of this three-week period.
E. April 19, 2021 – June 7, 2021
41This issue pertains to count #3 only (R.C.). This trial is scheduled to proceed in person on June 7^th^, 2021, subject to COVID-19 restrictions that may be in effect on that date. In response to defence inquiries, the week of April 19^th^, 2021 was offered for two of the trials, with the week of June 7^th^ offered for the third. The Crown was available. The Defence was not. However, before dates could be confirmed the court advised the parties that by virtue of a Notice to the Profession issued January 13, 2021, the April 19^th^, 2021 date was no longer available for an in-person trial.
42This issue once again begs the question of discrete event or defence delay? For the reasons outlined below, I find that this period of delay was caused by the discrete event of the COVID-19 public health crisis. Whether or not the defence was available became irrelevant as the court was unable to continue to offer these dates because of restrictions on in-person proceedings caused by the third wave of the pandemic.
Calculation of net delay:
43To summarize, the following defence caused delay is to be subtracted from the total delay:
April 24, 2018 – June 12, 2018 7 weeks
June 12, 2018 – July 31, 2018 7 weeks
July 29, 2019 – August 6, 2019 4 weeks
Total defence delay 18 weeks (4 months, 2 weeks)
44The net delay is:
Count #3 – 40 months, 2 weeks – 4 months, 2 weeks = 36 months
Counts #4 & 5 - 38 months – 4 months, 2 weeks = 33 months, 2 weeks.
Exceptional Circumstances:
45Given that the net delay still exceeds the presumptive ceiling of 30 months, the Crown now bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances: Jordan, at paras. 69-81.
46Exceptional circumstances are matters that lie outside the Crown’s control. They are circumstances that are not reasonably foreseeable or reasonably avoidable, and the Crown cannot reasonably remedy the delays resulting from the circumstances once they arise: R. v. Coulter, at para. 46.
47The Crown argues that there are two discrete events that have impacted delay in this case:
a. The issues that arose during the preliminary inquiry that necessitated the setting of further dates; and
b. The COVID-19 pandemic.
48The Crown acknowledges that despite this case originally involving five different complainants, there is nothing particularly complex about it that would allow the Crown to justify any delay above the presumptive ceiling as being reasonable. Therefore if, despite deductions for defence delay and discrete events the presumptive ceiling is still exceeded, the Crown acknowledges that the charges must be stayed.
Preliminary Inquiry:
49The Crown argues that the six-week period from the conclusion of the first two days of the preliminary inquiry (March 20, 2018) to the continuation date of May 3, 2019 constitutes a discrete event. The Crown points to the transcript from the hearing, which shows that Crown counsel was clearly taken by surprise by the complainant’s revelation that she had provided statements to police on a number of occasions. The Crown argues that but for this event, a continuation of the preliminary inquiry would not have been required, as counsel had estimated sufficient time. This event resulted in lost time when the case had to be stood down to see if the complainant’s statements could be located, along with unanticipated extra time required for cross-examination of the complainant on the statements. The Crown argues that this was unanticipated and not reasonably foreseeable by Crown counsel. The Crown further argues that once Crown counsel learned of this issue, she immediately took steps to locate the statements and remedy the situation to avoid further delay.
50Alternatively, the Crown argues that the failure to discover A.A.’s previous statements was simply a mistake, which constitutes a discrete event. The Crown points to paragraph 58 of R. v. Cody:
58In principle, an inadvertent oversight may well qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown. As this Court observed in Jordan, “[t]rials are not well-oiled machines” (para. 73). Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b).
51The defence argues that this is not a discrete event as the situation could have been avoided with proper investigation by the police and/or proper witness preparation in advance of the preliminary inquiry by the Crown. Had these things happened, the Crown would have been alerted to the issue. The delay occasioned by these previous statements being revealed for the first time at the preliminary inquiry was easily avoidable.
52I agree with the position of the defence. This situation could have been avoided with proper preparation of the witness. The witness volunteered this information readily at the preliminary inquiry. My conclusion may have been different had there been evidence from the Crown who conducted the preliminary inquiry as to what preparation steps had been taken with the witness or the investigating officer. Without this evidence I am unable to conclude that this event was reasonably unforeseen or unavoidable.
53If I am wrong in this conclusion, I agree with the Crown that counsel took immediate steps to try to remedy the situation. Unfortunately, the statements could not be located.
COVID-19:
54Even if I am wrong in my conclusions with respect to defence caused delay and with respect to the effect of the preliminary inquiry continuation, and even if those periods of time are deducted from the total delay, the only way by which the Crown is able to bring the delay below the presumptive ceiling is by virtue of its argument with respect to the COVID-19 pandemic.
55The Crown acknowledges that no adjournments were caused directly by the COVID-19 pandemic. Nevertheless, the Crown argues that the pandemic has had an enormous impact on the operation of the justice system and its participants, which has undoubtedly had an impact on the scheduling of matters in this case. The Crown points to the fact that criminal jury trials have not been able to occur in Kenora since the pandemic started. The scheduling of in-person trials has been challenging. Court participants, such as Crown counsel have been working largely from home. The global pandemic continues to have a significant impact on the criminal justice system that must be recognized when evaluating and calculating delay. The Crown takes the position that not to consider any deduction for the pandemic as a discreet event that has undoubtedly affected the progress of this case, would be to ignore the realities facing the judicial system and its participants over the past year. The question becomes how do we quantify this indirect impact of COVID-19 on delay in the circumstances of these cases before the court?
56As the Crown quite rightly points out, on March 15^th^, 2020 the pandemic hit, having an unprecedented impact on the operation of the courts. All criminal matters scheduled between March 17, 2020 and June 1, 2020 were adjourned. In April 2020 criminal jury trials were suspended until at least September 2020. There was considerable uncertainty during this time as to what was and was not going to be proceeding, and when trials or other appearances could be held. This uncertainty likely had some impact on how counsel conducted their files and their preparation. Matters that the court was hearing were expanded gradually, on a regional basis, during this time.
57The Crown offers three possible ways to properly account for the impact of the pandemic:
a. Deduct the entire period that the court has been impacted by the pandemic, commencing March 17, 2020 until June 2021 for count #3, or April 1, 2021 for counts #4 and #5, less the Crown period of delay from June 22, 2020 to December 18, 2020. This results in a total deduction of:
Count #3 9 months, 1 week
Counts #4 & 5 6 months, 3 weeks
b. Deduct the entire period commencing April 20, 2020 when the Superior Court announced the suspension of jury trials to the adjourned trial date of June 2021 for count #3, or April 1, 2021 for counts #4 and 5, less the Crown delay of 6 months. This results in a deduction of 7 months for count #3 and 5 months for counts 4 and 5; or
c. Deduct the period from the originally scheduled jury trial (September 29, 2020) to June 2021 for count #3 (8 months and 2 weeks) and April 1, 2021 for counts 4 and 5 (6 months).
58The Crown argument acknowledges that the delay in hearing the pre-trial applications during the period of June 22^nd^, 2020 to December 18, 2020 (6 months) is properly attributable to the Crown and not to any other cause including the pandemic. A case management conference was convened by the court on May 4, 2020, during which the court confirmed that despite any other notice to the profession, the applications were to proceed. Timelines were set for the delivery of materials. At least from this point, counsel had notice that they should be undertaking any preparation necessary to move forward with the applications, including the Crown confirming with the complainants their willingness to continue to participate in the process. Even though everyone acknowledged on June 22^nd^ that it made sense to adjourn so that the Crown could determine whether or not certain of the counts would be proceeding, there was no evidence explaining why this could not have been done in advance of the June 22^nd^ application dates. The Crown acknowledges that the failure to do so is a Crown misstep for which delay is properly attributable to it.
59The Crown argues that from December 18^th^ onwards the parties were in a position to schedule three separate judge alone trial dates. The COVID-19 reality, and restrictions on the scheduling of in-person trials has impacted the ability to schedule these trials from this date. This period of time alone results in a deduction for count #3 of 6 months and of 3 months, 2 weeks for counts 4 and 5.
60The defence disagrees with the Crown position that a deduction should be permitted from the net delay on account of COVID-19. While the Defence does not disagree that the public health crisis caused by COVID-19 constitutes a discreet event, it disputes that it is one which has caused the delay complained of.
61The Defence acknowledges that at the March 29^th^, 2021 assignment court it became clear for the first time as to the impact of the pandemic on this case with the inability to schedule counts 4 and 5 for an in-person trial. It is for this reason that the defence concedes that the calculation of delay should end as at the date of hearing this application (April 1, 2021) for counts 4 and 5. It disagrees that any period prior to this should be allowed on account of COVID-19 as a discrete event. The defence argues that the delay up until this point in time is solely attributable to the inaction of then Crown counsel, and particularly the events surrounding the adjournment of the June 22^nd^ pre-trial applications. The defence also cites the adjournment of the December 14^th^ and 15^th^ application dates due to Crown inaction. The defence argues that this case epitomizes the type of delay by the Crown that s. 11(b) is intended to remedy.
62It is undisputed that the COVID-19 public health crisis amounts to a discrete event. The question in this case is whether any time should be attributed to delay on account of this event.
63It is also undisputed that COVID-19 has caused a disruption to court services that was, and to a certain extent still is, beyond everyone’s control. This disruption has included, but not been limited to the temporary suspension of operations of the courts except for urgent matters, an inability to hear certain in-person matters, and an inability of judges to circuit to regional courts to hear in-person matters. Even once the operation of the courts expanded in 2020, certain matters such as jury trials were still not proceeding. All those who regularly work in the justice system have had to change how they conduct business and adapt to a rapidly changing environment with often little to no notice.
64As this decision is being written, we are now in the third wave of the pandemic in Ontario and subject to stay-at-home orders. COVID-19 cases have surged to record high levels, and hospitals are overwhelmed. Death tolls continue to climb. In the interest of public health, the Superior Court of Justice is once again returning to more limited operations, with no in-person hearings unless they are urgent. If this situation continues, the June 7^th^ trial date for count #3 may be in jeopardy. The impact of the pandemic on daily life, let alone court operations has been far-reaching and continues. The true impact is yet unknown.
65In R. v. Simmons, 2020 ONSC 7209, at paragraph 70, Justice Nakatsuru recognized the wide-reaching impact of the COVID-19 pandemic on the criminal justice system:
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.
66As did Nakatsuru, J. in R. v. Simmons, I recognize that the COVID-19 pandemic may have an impact on matters such as scheduling that may not always be apparent. I agree with the Crown that there may be circumstances in which it is appropriate to recognize this in the analysis of delay caused by a discrete event. As appealing as this argument may be, particularly for any delay from December 18, 2020 onwards when the parties were ready to schedule trial, I do not think that this is the appropriate case for application of this argument by the Crown.
67As the defence has suggested, it is important to consider the direction given in Jordan. In Jordan, at para. 75 Moldaver J. stated that:
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. [emphasis added]
68As stated in R. v. Greenridge, 2021 ONCJ 57, at paras. 26 and 30, it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay).
69A finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period: R. v. Ali, 2021 ONSC 1230, at paras. 40 and 41.
70Applying these principles to the arguments advanced, I find that the COVID-19 pandemic was merely ongoing at the same time as the delay in this case. It was neither the cause of, nor was it a contributing factor to it. Specifically:
a. The COVID-19 pandemic had no impact on delay during the period of March 17, 2020 to June 22^nd^, 2020. By the time the pandemic was upon us, the jury trial dates had already been set for September and the pre-trial applications scheduled. No step in this case was adjourned by the temporary suspension of court operations effective March 17^th^. Unlike many other cases dealing with s. 11(b) applications and the impact of the pandemic, until recently there was no adjournment necessitated by the pandemic, nor can there be said to have been delays in scheduling attributable to it until recently. In fact, the court was proactive with respect to the May 4^th^ case management conference and offering the option of hearing the applications virtually so that there was no delay. The defence and Crown agreed that this should happen in order to proceed. Despite this, the Crown did not meet the court ordered timelines, nor did it take the necessary steps required to proceed on June 22^nd^. Instead, it sought a further adjournment to undertake these steps. There is no evidence filed by the Crown from which I can conclude there was any impact on the overall delay in this case caused by the COVID-19 pandemic during this 3-month period.
b. There is also no merit, on the circumstances of this case, to the argument that any period for which jury trials have been suspended should be deducted as a discrete event. While the pandemic has resulted in the cessation of jury trials in Kenora, this is not what stopped this case from moving forward. In saying this, I acknowledge that even if the applications had proceeded in June 2020 as scheduled, the jury trials scheduled for September 29^th^ could not have proceeded. However, any argument in this case as to the lack of jury trials must recognize that as early as October 2019 the defence signalled to the Crown the possibility of a re-election if its severance application was successful. This was repeated on various occasions and reflected in the court record. It was not until new Crown counsel assumed carriage of the file in December 2020 that the Crown consented to the severance applications, following which the defence promptly began to canvass dates for judge alone trials and then formally re-elected. Had this happened much sooner, this matter could have proceeded far more efficiently.
I am left to conclude that on the facts of this case, the lack of availability of jury trials due to COVID-19 has not caused any delay. But for the Crown not dealing with the pre-trial applications in June and waiting for December to consent to the defence request, a re-election could have been made sooner and judge alone trial dates canvassed sooner. Given that the Accused has required in-person trials, and given the impact of COVID-19 on the ability of judges to travel, I recognize that it may not have been possible to try all three counts within the period of the presumptive ceiling (after deduction for defence delay). There is only one resident judge in Kenora. Whether the circumstances would have allowed one or more other judges to travel had the issue been determined in June is unknown. I am currently scheduled to travel to Kenora for the June 2021 trial date, so it is a possibility for at least one more of the counts to be determined. When or if these cases could have been tried is pure speculation at this point necessitated by the Crown delay of the June pre-trial applications. If the June applications had proceeded, the severance consented to at that time, and re-elections made, and if no trial dates could be offered because of the inability of judges to travel or to hold in-person hearings, then this would have constituted a discrete event.
c. The most attractive argument on the part of the Crown is that any delay from December 18^th^ onwards should be deducted as a discrete event. The Crown argues that the parties were in a position to schedule trials at that point and proceed but have not been able to at least with respect to two of the counts. The Crown says that the full period from December 18^th^ to April 2021 should be counted as COVID-19 delay.
As attractive as this argument was to me in order to avoid a stay and have these charges determined on the merits, it ignores the fact that even in a pre-pandemic scheduling environment it would be unrealistic of the Crown to expect that trial dates could be scheduled to occur immediately upon request (i.e. December 2020). This position ignores the reality that some institutional delay was inherent in scheduling even pre-pandemic.
It also cannot be said that backlogs in scheduling delayed this matter. The three trial dates initially offered by the court were within 4 to 6 months of the requests, with two being within the 4-month window. As indicated above, it must be remembered that this is a regional court with only one resident judge. While judges circuited to this court monthly, or more frequently if needed, trial scheduling on short notice would have been difficult absent COVID-19. While I remain loathe to speculate as to when these trials would have taken place but for the pandemic, certainly anything within the 4-month range should have been expected. I am again left with the conclusion that the cause of a delay in these cases proceeding to trial sooner is the Crown delay associated with the June 22^nd^ appearance. That delay has had untold impact on this case that extends beyond the December 18^th^ date on which one pre-trial application was settled, paving the way for judge alone trials, and the other was heard. This does not even take into consideration, and I make no findings with respect to the defence argument that the Crown should have reasonably consented to the severance application when it was discussed as early as the pre-trial.
I find that the Crown knew, or ought to have known that a delay in proceeding with the applications would cause a delay in proceeding to trial beyond December 18^th^. It would be unfair to the Accused to limit the impact of the Crown delay to December 18^th^. To do so would be to treat this delay as akin to the adjournment of one trial date to another; it was not. The Crown must accept more responsibility for its delay than simply the period between the initial date for the applications and December 18^th^.
For these reasons I do not find that any of the delay from December 18^th^ to April 1^st^ (counts 4 and 5) or from December 18^th^ to April 19^th^, 2021 was caused by COVID-19.
In making this decision I did consider that scheduling the trials in this matter became significantly more complicated as of February 22^nd^, 2021. By this point the court had been compelled to withdraw the April trial dates because of COVID-19 restrictions and the June trial dates offered were before one judge. Unless the defence agreed to proceed with some of the charges by Zoom, it became clear at this point that the pandemic environment may cause scheduling to be more challenging. I did give serious consideration to deducting the period of February 22^nd^ – April 1^st^ from the net delay on account of COVID-19 (5 weeks). Ultimately, I rejected this position for the reasons set out above. Even if I had not rejected this position and I had deducted a further 5 weeks from the net delay, the presumptive ceiling would still be exceeded.
d. I do find that with respect to count #3, the 7-week period of April 19^th^ to June 7^th^ was a discrete event. The trial co-ordinator offered the ability for two trials to proceed the week of April 19^th^ and the last to proceed on June 7^th^. While counsel for the defence was unavailable the week of April 19^th^, ultimately this became irrelevant as the court notified the parties that due to the January 13^th^ notice to the profession, an in-person hearing would not be possible April 19^th^; only virtual. This inability to proceed on April 19^th^ was a direct cause of COVID-19 restrictions that were unavoidable for the court, the Crown or the defence. The Crown also did everything possible to mitigate the impact of this delay by agreeing to a virtual trial.
71In light of the foregoing, the net delay shall be reduced by 7 weeks for count #3, leaving the remaining delay at 34 months, 1 week. With respect to counts 4 and 5, the remaining delay is 33 months, 2 weeks.
CONCLUSION:
72In conclusion, with allowable periods of defence delay and discrete delay, the presumptive ceiling for all three counts remains exceeded. The charges must be stayed.
73If I am wrong in this conclusion and the period of delay falls below the presumptive ceiling, the burden would fall back on the defence to demonstrate that the delay is unreasonable. I have made no findings in this regard as the Crown and defence each requested the opportunity to make written submissions on this issue, if needed. It is not needed.
74It gives me no pleasure to make this decision, and it was not an easy one. The complainants, and indeed the Accused himself, deserved to have these charges determined and decided on their merits.
75I want to thank Crown counsel and Ms. Wood for their thorough factums and argument made at the hearing of this application. I also wish to thank them for their co-operation in making reasonable concessions during the course of their arguments when warranted. I note that Crown counsel who argued this application, and who argued the December 18^th^ application, was not counsel involved prior to December 2020.
76If there are any calculation errors contained in this judgment, counsel may schedule a brief appearance before me to address them.
The Hon. Justice T. Nieckarz
Released: April 28, 2021
COURT FILE NO.: CR-19-42-MO
DATE: 2021-04-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ANDREW SCHARDT
REASONS ON s.11(b) APPLICATION
Nieckarz, J.
Released: April 28, 2021
/sf
