COURT FILE NO.: CR-19-10000658-0000 DATE: 20210503
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NEVILLE HENRY Applicant
COUNSEL: Celia Lindo-Butler, for the Crown Brian Crothers, for the Applicant
HEARD: April 8, 2020
A.J. O’Marra J.
Section 11(b) Charter application
Ruling
[1] Neville Henry has brought an application for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed under s. 11(b) of the Charter of Rights and Freedoms has been infringed.
[2] On December 16, 2018 the Toronto Police executed a search warrant at 44 Willowridge, Unit No. 1101, Toronto wherein they seized an SKS 7.62 rifle with ammunition, a 9 mm Taurus handgun with ammunition and approximately 34 grams of cocaine and 3.8 grams of fentanyl. Mr. Henry and Christina Robinson were arrested and charged with possession of a loaded restrictive firearms, possession of a firearm while prohibited and possession of Schedule 1 substances for the purpose of trafficking.
[3] Mr. Henry’s first trial date with co-accused Christina Robinson by judge and jury was set to proceed on January 4, 2021. The drug charges relating to Ms. Robinson were dismissed at a preliminary inquiry on October 7, 2019. Mr. Henry was committed to stand trial on the drug offences and both accused were remanded to the Superior Court for trial on the firearm offences. The firearm related offences were withdrawn as against Ms. Robinson on December 7, 2020 prior to the trial date of January 4, 2021.
[4] The first trial date of January 4, 2021 for Mr. Henry was vacated and adjourned to March 7, 2022 for an 11-day trial by judge alone. The total time between the date that Mr. Henry was charged December 16, 2018 and the anticipated completion of the trial, March 21, 2022 is 39 months and one week, (39.25 months).
[5] In R. v. Jordan, 2016 SCC 27 the Supreme Court set a presumptive ceiling for delay in the Superior Court of Justice at 30 months calculated from the date of the charges to the actual or anticipated length of a trial. Any delay in excess of 30 months is presumptively unreasonable.
[6] In cases where the total delay, less delays either waived by the accused or exclusively caused by the defence, exceeds the presumptive ceiling of 30 months, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable due to exceptional circumstances.
[7] Particularly complex matters or discrete events that lie outside the Crown’s control as being reasonably unforeseen or unavoidable, and which delay the Crown could not have remedied due to those exceptional events is subtracted from the total delay to determine whether the presumptive ceiling has been exceeded.
Brief Overview of the Proceedings
- Mr. Henry’s first appearance was December 17, 2018. After a number of early appearances, January through to April 8, 2019 during which bail considerations, disclosure and judicial pretrial discussions took place, the preliminary inquiry date for the gun and drug charges was set for October 7, 8 and 9, 2019.
When the preliminary inquiry date was set an earlier date of September 11, 2019 was available to the Crown and Court, but not the defence. As a result, there was a one-month defence delay in the proceeding.
The time between the applicant being charged and the preliminary inquiry was nine months and three weeks (9.75 months), which counsel agree was within the timeframe appropriate for matters to be dealt with in the Ontario Court of Justice.
On October 7, 2019, the date for the preliminary inquiry due to changes in the rules requiring gun charges to proceed directly to the Superior Court, only the drug charges were dealt with at the preliminary inquiry. The drug charges were dismissed as against Ms. Robinson. The applicant was committed for trial and the accused were remanded to appear November 5, 2019 in the Superior Court of Justice.
On November 5, 2019, after a judicial pretrial conference a trial date, 12 days judge and jury, was set for January 4, 2021. An earlier court date of October 5, 2020 was available to the Court and Crown, but unavailable to defence counsel. As a result, there were three months defence delay.
In the interim, on March 11, 2020 the Director General of the World Health Organization declared a global pandemic due to the spread of the COVID-19 virus, a highly infectious and potentially lethal virus. Countries around the world needed to take urgent and aggressive action.
On March 17, 2020, in response to the declaration of the pandemic, the Government of Ontario declared a state of emergency in the province which resulted in the closure of all non-essential businesses. Two days prior, on March 15, 2020 the Chief Justice of the Superior Court of Justice issued an order adjourning all criminal matters scheduled between March 17 and June 2, 2020, except for urgent matters. All of the other matters set in that time period were adjourned to be re-scheduled. The Chief Justice’s Notice to the Profession and the Public, dated March 13, 2020 set out detailed instructions for anyone attending Superior Court of Justice Court Houses and in particular cancelled all “jury panels for upcoming civil and criminal trials”.
On May 13, 2020 a further notice was issued that there would be no jury trials until September 21, 2020. The court continued to conduct some judge alone proceedings, many by virtual hearings over an internet platform, Zoom. In September 2020 when it appeared that there had been an abatement of the pandemic and after a number of structural safety measures had been instituted in court houses, such as plexiglass barriers, and masking and social distancing requirements, a small number of jury trials were held. However, as a result of an alarming increase in the spread of infections and fatalities and a further extension of the government emergency orders, locking down certain businesses and stay at home orders, all jury selections were discontinued until after January 4, 2021. Then as infections continued to increase the Chief Justice cancelled all jury trials until “May 3, 2021” at the earliest.[^1]
On the date this application was heard, April 8, 2021 the Government of Ontario again extended the emergency orders for 4 weeks to May 6, 2021, then within days to beyond May 20, 2021. The Chief Justice of the Superior Court issued another notice, April 8, 2021 that stated in part the following:
The Court is an essential service and will remain open. However, during the province-wide stay-at home order that is in effect until May 6, 2021, in-person matters will not be held with the exception of only the most serious child protection matters, urgent family matters and critical criminal matters, where other options are absolutely unavailable. In determining whether a matter falls into this exceptional category, the Court will take into account the local public health situation and positions of the parties. The Court will continue to hear as many matters as possible virtually.
On December 7, 2020 the charges against Ms. Robinson were withdrawn. Counsel indicated Mr. Henry was considering making a re-election to proceed by judge alone.
On December 8, 2020 the Crown with carriage of the matter, signed the re-election form consenting to the accused’s re-election to be tried by a judge sitting alone. However, it was not until January 17, 2021 after the original trial date of January 4, 2021 had been vacated that counsel for the applicant executed the s. 561.1 Criminal Code intent to re-elect to judge alone trial.
On December 17, 2020 counsel for the applicant indicated his s. 11(b) Charter materials had been filed to comply with the requirement that they be filed within 30 days. He indicated that his client was “prepared to re-elect”. He said that he thought it was a perfect trial to run by Zoom (a virtual trial via the internet) and that he had been provided a list of eight judges to chose from, one of whom, Justice Copeland he said he would be content with. It was noted that the re-election could be done on January 4, 2021 the scheduled trial date. Mr. Henry’s matter was adjourned directly to the trial date of January 4, 2021.
On December 22, 2020 counsel for the applicant indicated that he had been in contact with the trial coordinator and that the judge he was prepared to re-elect in front of on behalf of his client, Justice Copeland was unavailable to preside on January 4, 2021.
Counsel for Mr. Henry indicated on the record: “Your Honour, I can advise that I was provided a list of four judges, I had previously spoken to my client prior to today, understanding we are not talking right now. And I had instructions on conditions which my client was prepared to re-elect. Not only re-elect but proceed by way of Zoom. We had chosen a judge out of that four list – out of that four-person list. I just gotten (sic) an email indicating the Crown does not consent.”
The Crown addressing the matter in court that date stated: “Mr. Crothers and the assigned Crown, had the understanding that if they could agree to five judges between the two of them, that one of those judges would likely be provided or made available on – and that didn’t happen. But certainly, the assigned Crown on the basis of that list, there were 19 judges that she would have consented to re-election so I think – more I think it’s fair to say for both defence from what Mr. Crothers has said and for the Crown, that there was a wide – a wide selection but it just so happens that a judge that the Crown can consent, the assigned Crown will consent to re-electing is not the judge who was available on January the 4th. So, the Crown is not consenting to the re-election.”
Mr. Crothers added: “This morning we were provided a list of four other judges as I indicated. I made a selection. I understand the Crown is not agreeing to that, as is their right. So, although we were prepared to re-elect and proceed by Zoom, I respect my friend’s decision to decline that. I think I – I’m in a bit of a quandary. I really do need to speak to my client. There was discussion about putting it over to a date in January for further judicial pretrial, January 12, 2021. The jury trial scheduled for January 4, 2021 was vacated by the court because the COVID-19 pandemic and that all jury trials had been cancelled.”
On January 12, 2021 the matter was spoken to in court via Zoom. It was confirmed that a judicial pretrial had been held on January 11, 2021 and that a new time trial estimate of 11 days had been agreed to based on the applicant re-electing his mode of trial to judge alone. Mr. Crothers noted that no new trial date had been set and that his trial date set in January had “obviously been adjourned due to the pandemic”. He asked to adjourn for a week to discuss the judicial pretrial matter with Mr. Henry and to confirm his client’s instructions to re-elect.
On January 19, 2021 an agent appeared on behalf of defence counsel and confirmed that Mr. Henry’s re-election notice had been filed. A request had been made through the trial coordinator’s office for a new trial date, but it had yet to be provided. The matter was put over to January 26, 2021 to confirm the new trial date at the request of the applicant.
On January 26, 2021 the earliest date offered by the trial coordinator’s office for the 11-day judge alone trial was March 7, 2022. Both defence counsel and the Crown said they were surprised only such a distant date was available. The Crown indicated the confirmation form had been returned to the Trial coordinator with an indication that the Crown would be prepared to proceed on the “earliest available date”.
Defence counsel asked that the matter go over to February 9, 2021 to set a date for the s. 11(b) application. The agreed date was April 8, 2021.
On February 18, 2021 the Crown emailed defence counsel with a request that he update the trial availability form with current dates available to him as she was trying to see if an earlier date could be arranged. In reply, counsel wrote the following: “Unfortunately at this moment the block of dates that I had originally offered (Feb, April, August – September) have been filled up with the crush of rescheduling Trials/PHs that were put off due to COVID. I don’t have 11 clear days available until February 7, 2022. I have the odd single day trials here or there (out-of-custody) over the next year that I could possibly reschedule to free up a block of 11 days if can you let me know what’s available. It would be a struggle, but I’ll do what I can do to try to get an earlier date.” No earlier dates were provided.
Analytical Framework
[8] The Supreme Court in Jordan set out the analytical framework to determine whether a s. 11(b) violation for unreasonable delay has occurred:
(a) calculate the Total Delay, which is the period from the charge to the actual or anticipated end of trial;
(b) subtract Defence Delay from the Total Delay, which results in the “Net Delay”;
(c) compare the Net Delay to the presumptive ceiling;
(d) if the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(e) subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached;
(f) if the Remaining Delay exceeds the presumptive ceiling, the court must consider whether there were exceptional circumstances such that the time the case has taken is justified and the delay is reasonable;
(g) if the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.[^2]
[9] Following the framework as set out the following times are allocated in this matter:
(a) The Total Delay, the period from the charges, December 16, 2018 to the anticipated end of the trial in this matter March 21, 2022 is 39 months and 1 week (39.25 months).
(b) The Crown and defence agree that there is 4 months and 2 weeks (4.5 months) Defence Delay. One-month delay in setting the preliminary inquiry date (September 11, 2019 to October 7, 2019; 3 months defence delay in setting the first trial date (October 5, 2020 to January 4, 2021); and 2 weeks in the applicant giving counsel final instructions to re-elect to proceed with a judge alone trial (January 4, 2021 to January 17, 2021).
(c) The Net Delay, as calculated by subtracting the Defence Delay from the Total Delay (39.25 months less 4.5 months) is 34.75 months - 4.75 months above the presumptive ceiling.
(d) In calculating the Remaining Delay, consideration must be given to whether the case was particularly complex or there was a discrete event the justifies the delay. Counsel agree that this matter is not a particularly complex matter.
Discussion
[10] Counsel for the applicant contends that no consideration should be given to the consequence of COVID-19 pandemic as a discrete event in the calculation. He characterizes it as institutional delay. He indicated his client’s willingness to re-elect a judge alone and to potentially take advantage of the two-week time period available January 4, 2021 however, a judge that the Crown and he had agreed to proceed before became unavailable. Both parties had their reasons for not providing consent, the basis for which do not form part of this application. The defence noted that there were conditions to be met before he could confirm that his client would re-elect, just as the Crown had to provide consent, which was required to proceed judge alone. There was no suggestion of an abuse of process in the Crown refusing consent December 22, 2020. Reasons are not required. Both consents, likely based on who would preside – often the unspoken condition for a request to re-elect are made when the as “of right time” period has passed for the applicant and Crown consent is required.
[11] As a matter set for January 4, 2021 as a judge and jury trial, it was not going to proceed because all jury trials were suspended due to the pandemic restrictions in assembling and selecting juries. It could only have proceeded with whatever condition was required to be met and instructions confirmed by the applicant and the Crown agreed to proceed as a judge alone trial. Counsel did not have confirmed instructions to re-elect from the applicant until after the available trial time window had closed.
[12] In this instance the window of opportunity to proceed as a judge alone trial was closed due to the choices of the parties. Court time and judges were available for a judge alone trial. However, the trial date was adjourned, not by the choices they were entitled to make, but because of the effect of the pandemic on the administration of the justice.
[13] In R. v. Belzil, 2021 ONSC 781 it was noted that the declaration and impact of the COVID-19 pandemic is a quintessential discrete event – an exceptional event that could not have been reasonably foreseen or anticipated. Also, as noted in R. v. Simmons, 2020 ONSC 7209, no reasonable person could contend otherwise.
[14] The declaration and consequence of the COVID-19 pandemic is a discrete event that must be considered in the overall calculus as to whether there has been unreasonable delay. It has been an unprecedented public health crisis the likes of which have not been seen since the Spanish flu pandemic in 1918 that has affected every aspect of community life and activity. Emergency stay at home orders, masking, social distancing, hand hygiene, avoidance of congregant settings and urgent research to produce safe and effective vaccines have been undertaken. In the courts, a massive re-scheduling of matters had to be undertaken and a new way of holding virtual hearings and trials had to be developed and undertaken to protect the participants and to keep the administration of justice moving forward.
[15] Up until January 4, 2021, the original trial date, Mr. Henry’s choice as to his mode of trial was to be tried before a judge and jury. His re-election had not been provided prior to that date. Had re-election been agreed to by the parties, it would have afforded the opportunity to proceed during that two-week time period available to the court, in court with the safety measures in place or by Zoom. His re-election was not given until January 17, 2021 and the January 4 trial date vacated.
[16] As was obvious by the comments made by counsel December 22, 2020 the matter was not going to proceed on January 4, 2021 as a judge and jury trial as all jury selections had been suspended due to the pandemic. Indeed, jury trials had been suspended largely since March 13, 2021 requiring adjournments to uncertain future dates.
[17] Many cases had to be adjourned because of the pandemic as acknowledged in counsel’s February 20, 2021 response to the Crown’s email inquiring as to whether he had earlier dates open for trial. He wrote, the trial dates he offered three weeks earlier had been “filled up with the crush of rescheduling Trials/PHs that were put off due to COVID”.
[18] It is reasonable to say in the circumstances that had it not been for the intervention of the pandemic restrictions this matter would have been able to proceed on January 4, 2021 as a judge and jury trial. Notwithstanding the consequence of the pandemic and the need to reschedule many trials, had there been a re-election with Crown consent on or before January 4, it could well have proceeded to a judge alone trial as the judicial resources were available.
[19] In my view, it is unreasonable to assert that the pandemic is not a discrete event to be considered and that all subsequent delay as institutional delay. The question is whether it is the entire time to the adjourned date or some part thereof.
[20] In Simmons, Nakatsuru J. held that the entire period from the original trial date that had to be adjourned because of the pandemic to the new trial date, 9 months and 26 days in that case, should be attributed to the discrete exceptional event of COVID-19. In support of the conclusion Nakatsuru J. provided several apt observations, which I adopt:
• Most trial courts have “deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed only the time period where trials have been actually suspended”.
• The impact of the 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 on how we do things and on the people who do them”. This 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 unprecedent proportions, never seen before in our time”.
• The public health crisis and its impact did not end on any specified date. Trials take place “in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and assessing what the Crown and the court can reasonably do to in mitigating the delay”.
• The impact of the COVID-19 pandemic on the judicial system is not over – “when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues”.
• Courts should be reluctant to cast blame or be overly critical of the justice system or its participants while meeting the challenges posed by the ongoing health crisis caused by COVID-19.
[21] Even as this matter was being heard the Ontario government declared another state of emergency, with a stay-at-home order in place for the next four weeks, later expanded to six weeks because of the increasing spread of the COVID-19 and variants that have caused an alarming increase in hospitalizations and fatalities, notwithstanding the vaccination program under way.
Conclusion
[22] In my view, the entirety of the time between January 17, 2021, the date of re-election and the anticipated completion date of the trial, March 21, 2022 is a discrete event of exceptional circumstances that contributed to the 14 months and 1 week delay (14.25 months), which shall be subtracted from the Net Delay of 34.75 months. The Remaining Delay (34.75 months less 14.25 months) is 20.5 months, a time period well below the presumptive ceiling of 30 months set by the Supreme Court in Jordan.
[23] Where the Remaining Delay is below the presumptive ceiling the defence bears the onus to demonstrate the case is nevertheless a clear one of unreasonable delay where the total delay follows below the presumptive ceiling. The applicant would have to establish that the defence took meaningful steps to demonstrate a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Further, where the presumptive ceiling has not been exceeded the grant of a stay will be rare and only in the clearest of cases. I am not satisfied that the applicant has established having taken meaningful steps to expedite the proceedings or that it has taken markedly longer than it should have.
[24] In the result, the application is dismissed.
[^1]: See R. v. MacKinnon, 2021 ONSC 2749 paras. 8-20 for a thorough review by Copeland J. of the effect of the pandemic on the general population and the courts in Ontario and the City of Toronto.
[^2]: See also R. v. Coulter, 2016 ONCA 704 at paras. 34-41.
A.J. O’Marra J.
Released: May 3, 2021
COURT FILE NO.: CR-19-10000658-0000 DATE: 20210503
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NEVILLE HENRY Applicant
SECTION 11(b) Charter APPLICATION Ruling
A.J. O’Marra J.
Released: May 3, 2021