COURT FILE NO.: 341-18
DATE: 2021-05-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NATHAN SMITH
Applicant
Charles Yih, for the Respondent
Geoff Snow, for the Applicant
HEARD: April 28, 2021
THOMAS, RSJ:
The Application
[1] The applicant has brought this application requesting a stay of proceedings on the grounds that there has been a violation of his right to a trial within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, (“Charter”). The applicant calculates the net delay as 47.8 months demonstrative of systemic delay and complacency, and therefore presumptively unreasonable. I disagree and for the reasons set out below, I dismiss this application.
The Charges
[2] The applicant is charged with two counts of sexual interference and sexual assault contrary to ss. 151 and 271 of the Criminal Code.
[3] The complainant is a 13-year-old female. It is alleged that on July 10, 2017, the complainant was assaulted while she was walking with her younger sister and her dog. DNA samples were obtained from the complainant’s clothing as part of a sexual assault examination kit. Testing identified the applicant as the source of the deposits.
[4] On November 16, 2017, the applicant was arrested and charged. He was released on December 19, 2017 and has been out of custody throughout.
Procedural History
[5] By November 22, 2017, the applicant had retained Mr. Snow, his present counsel.
[6] A Crown pre-trial was conducted on March 20, 2018. A judicial pre-trial in the Ontario Court of Justice was held on April 23, 2018.
[7] On May 22, 2018, the applicant elected trial by judge and jury and a preliminary hearing was scheduled for October 30, 2018. The preliminary hearing was completed on that date.
[8] On November 13, 2018, the applicant appeared in a Superior Court of Justice assignment court and a judicial pre-trial was scheduled for November 30, 2018.
[9] On December 11, 2018, the applicant was back in assignment court and a five day jury trial was scheduled for October 21, 2019.
[10] On October 8, 2019, Mr. Snow received a transcript of the applicant’s interview with police. Disclosure of the video of the interview had been made in the normal course more than a year earlier, and like all other disclosure, it was stored and viewed on a cloud-based platform. He perceived that a “skip” in the video had caused him to miss a portion of his client’s statement where the applicant told police about his discussion with the complainant.
[11] Counsel was concerned that this information might require a s. 276 application to be admitted in the trial. He raised his issue with the Crown and with the presiding judge at the trial readiness court appearance on October 16, 2019, five days before the trial was to commence.
[12] On that date, Mr. Snow advised the Court that:
On reading the transcript while playing the video, I noticed this skip. There was about 20 pages of transcript. In that portion of the interview, the accused makes reference to things the complainant said to him before the alleged sexual assault took place. He says, “She told me she had many boyfriends. She told me she has participated in various acts”. Upon seeing that, I realized that this might be an issue. I don’t believe it is. It’s my submission it’s not. That may call for a 276 application. What I’m seeking initially is a ruling on whether a 276 application is required. If a 276 application is required then because of the amended legislation, the complainant needs to be served a copy of the materials, needs to be given an opportunity to consult with independent counsel.
There just isn’t enough time to deal with that before the trial date, and then it would be – I don’t have instructions to waive 11(b), but in my submission, if this were ever reviewed, an 11(b) – in an 11(b) framework, it’s abundantly clear this is – this is my fault.
[13] Counsel’s acceptance of fault seems appropriate in that 8 months before the preliminary hearing in February 2018, he was in possession of a summarized transcript of the applicant’s videotaped statement. The summary disclosed the same concerning information:
Applicant:
“She would have done whatever I wanted. She told me things like 3somes and things that she did with other girls. It just came up. I told her you look good, do you go to the gym, you must have a boyfriend she said now. Can’t remember how came up. She told me she’s been with other girls.”
Asked by Officer Bonnett:
“Conversation about previous sexual behaviour, before or after asking her age”
Applicant:
“This came up during our time together, don’t remember how came up”
[14] In the busy trial readiness court of October 16, 2019, Justice Garson was unable to resolve the need for a s. 276 application and reluctantly vacated the trial dates so that a hearing could be scheduled and a new trial date set.
[15] The charges next appeared on November 12, 2019 in an assignment court before Justice Grace, the Local Administrative Justice. Upon reviewing the explanation for the lost trial date, Justice Grace adjusted the Jordan date to late October, 2020. At the time, he was clearly relying upon the endorsement of Justice Garson, who had himself relied upon the submission of Mr. Snow that the adjournment lay at the feet of the defence and therefore should be considered defence delay.
[16] The earliest date available was the week of December 7, 2020, and while available to the Crown, Mr. Snow was already booked that week. The second trial date was then set for December 14, 2020.
[17] The s. 276 application proceeded over three days before Justice George on August 10, October 16 and November 12, 2020. It was ultimately dismissed.
[18] On March 15, 2020, Chief Justice Morawetz of the Superior Court, issued a province-wide order adjourning all criminal matters scheduled to be heard between March 17, 2020 and June 2, 2020 as a result of the COVID-19 pandemic.
[19] On April 20, 2020, Chief Justice Morawetz issued the notice set out below:
Notice to the Profession, Public, Accused Persons and the Media Regarding the Suspension of Criminal and Civil Jury Trials
April 20, 2020
To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) suspended in-person operations, effective Tuesday, March 17, 2020, and until further notice.
By order, all criminal matters scheduled for any type of appearance between March 17, 2020, and June 1, 2020, were adjourned.[^1] All civil matters scheduled to be heard on or after March 17, 2020, were adjourned with no fixed return dates. The effect of those orders was to suspend most jury proceedings.
Since March 17, 2020, the Ontario Superior Court of Justice has continued to hear high priority non-trial matters.
Given the on-going public health situation, the Ontario Superior Court of Justice will not recommence criminal or civil jury selection or jury trials until September, 2020, at the earliest.
The Court will monitor the public health situation and issue further direction in early May.
In the meantime, all dates for criminal matters that are currently scheduled for trial or for any other reason in June will remain in place until that further direction is issued.
For civil jury matters, each region of the Court will consider how it can best reschedule civil jury trials that were to have been heard during this suspension of regular operations. Details will be shared in regional notices to the profession as they become available.
Geoffrey B. Morawetz Chief Justice Ontario Superior Court of Justice
[20] In the summer of 2020, Court Services Division (CSD) of the Ministry of the Attorney General (MAG) explored the possibility of off-site jury trials and specifically concentrated on RBC Place in downtown London. Tentative plans were drawn, and costs explored.
[21] On August 27, 2020, MAG redirected its efforts and it was announced by the Manager of Court Operations at the London Courthouse that jury selection and jury trials would not be proceeding off-site, but would instead recommence at the London Courthouse with the following safeguards:
a. A reduced number of jury panels would be called in at staggered start times;
b. Additional space allocated as a jury assembly area;
c. A video link would be set up so the jury panel could hear the opening remarks by the presiding judge;
d. An expanded jury box and/or utilization of the public gallery to allow for distancing; and
e. A jury deliberation room set up in a vacated space.
[22] Renovations were made to the London Courthouse but because of the necessary safety precautions including distancing, the Courthouse could only accommodate one jury trial at a time. Multiple courtrooms were used to allow for jury selection, deliberation and the trial itself.
[23] Three criminal trials were completed in London, one multi-accused homicide and two sexual assault trials. The first trial commenced on September 8, 2020, the last on November 16, 2020. All accused in the trial matters were in custody.
[24] On November 21, 2020, Chief Justice Morawetz released a notice advising that jury trials would not commence in any court location except those in a “Green Zone” as defined by the Provincial Government. The notice affected the period November 23, 2020 until at least January 4, 2021. The relevant potion of the notice is set out below:
November 21, 2020
Notice to the Profession and Public Regarding Court Proceedings
On November 21, 2020, the Ontario Superior Court of Justice suspended new jury selection for new jury trials in all areas of the province except Green Zones until at least January 4, 2021.
By this update, the profession and public is notified that
In view of the public health situation, effective Monday, November 23, 2020, the Court will not commence any new jury selection in any court location except in those in a Green Zone as defined by the Ontario Government as of the date of this notice https://www.ontario.ca/page/covid-19-response-framework-keeping-ontario-safe-and-open.
This will remain in effect until at least January 4, 2021. An update will be issued on December 29, 2020.
To be clear, only court locations in Green Zones as of the date of this Notice will commence new jury selection until at least January 4, 2021.
Jury trials currently in progress can proceed, subject to the discretion of the trial judge.
[25] At the time of the Chief Justice’s notice, there were no areas in the Southwest Region designated as “Green Zone.”
[26] The applicant’s charges were brought forward by the Court and Justice Grace held a trial management conference on November 27, 2020 to ascertain, in part, whether there might be a re-election to a judge alone trial. With no re-election forthcoming and no change in trial status, the matter was adjourned to the assignment court of December 8, 2020 to assign a new trial date.
[27] On December 8, 2020, before Justice Grace, Mr. Snow advised that a s. 11(b) application was contemplated and therefore an 11(b) pre-trial date would need to be set. Reacting to that defence position, expressed then for the first time, the Court offered a trial date of January 18, 2021. The defence was unavailable on that date and the Crown was missing a material police witness.
[28] The Court then offered March 8, 2021 with a similar response from both defence and Crown. The Court offered April 6, 2021, and while the Crown could proceed on that date, the defence could not.
[29] The fourth date offered by the Court was September 27, 2021. It could not be accepted by either defence or Crown. The fifth date offered was the week of October 18, 2021, and that date was accepted and set as the third trial date.
[30] On December 14, 2020, Chief Justice Morawetz extended the suspension of jury trials in all areas except “Green Zones” until January 29, 2021. On January 13, 2021, by further notice of the Chief Justice, the suspension of jury trials was continued to May 3, 2021 at the earliest.
[31] On March 17, 2021, the Chief Justice, subject to a further direction from the Regional Senior Justice and further public health information, anticipated that jury trials in Toronto, Northwest, Northeast and Southwest Regions would commence on July 5, 2021 at the earliest.
[32] In reaction to the affects of the “third wave” of the COVID-19 pandemic, Chief Justice Morawetz released his latest notice on April 20, 2021. That notice suspended all but the most critical virtual proceedings until May 7, 2021, is set out below:
Notice to the Profession and Public Regarding Court Proceedings – April 20, 2021 UPDATE
April 20, 2021 update
In view of the strengthened stay-at-home order and the critical situation with the pandemic, over the next several weeks until May 7, to reduce the number of court staff, counsel or parties required to leave their homes to participate in court proceedings, the Court will defer as many matters as possible. This includes virtual hearings.
The Court will focus on hearing
• the most serious child protection matters
• urgent family matters
• critical criminal matters, and
• urgent commercial or economic matters where there are employment or economic impacts.
Subject to the discretion of the trial judge, matters that are in-progress can continue. The positions of the parties and staff should be strongly considered and alternate arrangements should be made for those who do not wish to attend in-person.
The Court is seeking the cooperation of counsel to defer as much as possible.
[33] As of the writing of these reasons, there are six criminal jury trials set in London for the period July 12, 2021 to August 30, 2021. It is unknown whether all, or any, will proceed.
Position of the Parties
The Applicant
[34] Mr. Snow, counsel for the applicant, accepts responsibility for the cancelled trial date of October 21, 2019. He argues however that the adjournment does not meet the definition of “defence delay” discussed in R. v. Jordan, 2016 SCC 27, paras. 63-65 and R. v. Cody, 2017 SCC paras. 28-31, but rather should be seen as a discrete event. It is the applicant’s position that the Court should have worked harder to find a date and that a new trial date and s. 276 application dates should have been found within 6 months of the cancelled trial date.
[35] It is also the applicant’s position that the setting of the third trial date evidences a similar lack of effort by the Court consistent with the kind of complacency regarding timely trials which was criticized by the Supreme Court of Canada in Jordan.
[36] It is the defence position that the “unilateral” suspensions of trial dates by Chief Justice Morawetz is not consistent with the Rule of Law. Mr. Snow states that directions of this nature should be made following a hearing where an evidentiary record is made public. He argues that there is nothing in the record in this application that explains why the Chief Justice took these steps; no evidence of consultation; no explanation of why off-site facilities were not utilized; no evidence of an effort to balance the applicant’s constitutional rights to a timely trial against the efforts to keep the public safe.
[37] As a result, the defence maintains that even with a reduction of 6 months for the adjournment of the first trial date, this case is well beyond the 30 month ceiling set by Jordan and cannot be saved.
The Respondent
[38] The Crown maintains that defence counsel was in possession of disclosure that should have alerted him to the potential of a s. 276 application well before the adjournment of the first trial, particularly considering the material in his possession, the conduct of OCJ pre-trials and the preliminary hearing. It is the Crown’s position that the entire period from the setting of the first trial date (December 11, 2018) to the second trial date (December 14, 2020) a period of 24 months and 7 days should be attributed to defence delay.
[39] The Crown’s position is that on December 8, 2020, upon the setting of the third trial date, the Court and Crown were able to proceed on April 6, 2021 while the defence was not. It argues that the period of 5 months and 21 days from April 6, 2021 to September 27, 2021 should also be seen as defence delay.
[40] Finally, the Crown submits that the time period of 10 months and 16 days from December 14, 2020 to the third trial date of October 26, 2021 should be viewed as a discrete event due to the unforeseen and unavoidable effects of the pandemic.
Analysis
[41] The Supreme Court of Canada has directed that a presumptive ceiling be set at 30 months for cases going to trial in the Superior Court. (Jordan, para. 46). The ceiling is the point at which delay to trial completion becomes presumptively unreasonable for s. 11(b) purposes. (Jordan, para. 56).
[42] In R. v. Coulter, 2016 ONCA 704 at paras. 34-40, the Ontario Court of Appeal directed the following analytical framework:
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
[35] Subtract defence delay from the total delay, which results in the “Net Delay”.
[36] Compare the Net Delay to the presumptive ceiling.
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached.
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[43] Counsel in this matter agree that the total delay is 1440 days which they have chosen to calculate as 48 months.
[44] The analysis then turns to any examples of defence delay. Defence delay is seen to have two components. The first is delay waived by the defence. The waiver may be explicit or implicit, but at all times must be clear and unequivocal. (Jordan, para. 61). The second component considers defence conduct and is intended to prevent the defence from benefitting from its own delay-causing action or inaction. Defence must be given time to prepare and time to bring non-frivolous applications.
[45] Where a date is available to the Court and the Crown, but not available to the defence, the delay occasioned must be defence delay and deducted. That is so regardless of when the date is offered. This follows since delay in that circumstance is not the responsibility of the Court or the Crown and therefore not constitutionally relevant. (Jordan, para. 123).
[46] In Cody at paras. 33-35, the Court expanded on what circumstances might be considered defence delay:
[33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).
[34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.
[35] We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.
[47] As previously mentioned, the applicant now attempts to characterize the adjournment of the first trial as a discrete event rather than defence delay. This new position is contrary to the submissions of counsel at the trial readiness court on October 16, 2019 when Mr. Snow said “…in my submission, if this were ever reviewed, an 11(b) – in an 11(b) framework, it’s abundantly clear this is my fault.” In another appearance as the matter progressed, Mr. Snow referred to the adjourned first date as the responsibility of the defence.
[48] I agree with counsel’s initial acceptance of fault. The late adjournment of the first trial date is the kind of defence inefficiency spoken of in Cody. Defence inaction or omission may also render defence action illegitimate and amount to defence delay. The 10 page statement summary disclosed to defence 8 months prior to the preliminary hearing contained all of the necessary information to alert counsel to the potential application of s. 276 in a case such as this where the defence hinges on the applicant’s perception that the complainant was 18-years-of-age.
[49] Defence counsel now argues that the video “skip” was unforeseen and therefore a discrete event not worthy of defence delay. As mentioned, he believes the Court should have recognized the age of this proceeding and found a trial date within 6 months.
[50] The loss of the first trial date is exceedingly important to this decision. Had the matter proceeded as first scheduled, none of the further adjournments necessitated by the COVID-19 pandemic would have impacted the proceeding. The applicant would have completed his trial by October 26, 2019.
[51] I find the entire period from the first trial date: October 21, 2019 to the second trial date: December 14, 2020 (420 days or 14 months) to be defence delay. Subsumed within that time period and therefore of little consequence is the 7 day defence delay from December 7, 2020 to December 14, 2020, when the Court and Crown were available, and the defence were not.
[52] Finally, to complete the assessment of defence delay, there are the attempts to set the third trial date. On December 8, 2020 the date of April 6, 2021 was offered by the Court. That date was acceptable to the Crown but not the defence. Therefore the period April 6, 2021 to September 27, 2021, when both Crown and defence were unavailable, should be deducted as defence delay. That period is 5 months and 21 days.
[53] It is appropriate then to deduct defence delay of 19 months and 21 days from the total delay of 48 months. That leaves net delay of 28 months and 9 days, a delay below the presumptive ceiling of 30 months.
[54] Consistent with the structured analysis directed by Jordan and Cody, I could leave matters here and dismiss the application. To do so, however, would ignore the impact of the global pandemic on the criminal justice system and specifically its impact on this trial. In addition, if I am wrong in my assessment of defence delay, the pervasive effect of the pandemic is a complete answer to this application.
The COVID-19 Pandemic
[55] After the first trial date was vacated, there was an overwhelming global scourge that can only be considered a discrete event and therefore an exceptional circumstance as described in Jordan. (Jordan, para. 68).
[56] As Justice Rambow stated in R. v. Folster, [2020] MJ No 187, at para. 28:
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.
[57] There have now been numerous cases across the country that have considered the impact of the COVID-19 pandemic on the calculation of time to trial. A number of those cases chose to deduct the entire time from the start of the pandemic.
[58] Justice Javed in R. v. Pinkowski, 2021 ONCJ 35, rendered one of those judgments drawing on the reasoning of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209:
28 It would appear Mr. Yeghoyan’s core complaint is focused on the court not being ready as of July 2020 to accommodate Mr. Pinkowski’s trial. There are cases in Canada that have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended.[^12] None are decisions of senior appellate courts which are binding on me but in my view, the legal reasoning of Nakatsuru J. in Simmons, supra is instructive. Justice Nakatsuru offered five compelling reasons why this should be the correct approach. These five reasons include: (i) the jurisprudence supports an approach to deduct the entire time impacted by COVID-19, (ii) the pandemic had far reaching impacts beyond the period impacted by the suspension of court proceedings, (iii) the effect of the discrete event of the pandemic does not end when courts are ready to resume normal court operations, (iv) the discrete event caused by the pandemic continues into the future and (v) courts should be reluctant to cast individual blame during a pandemic during extraordinary circumstances: supra, at paras. 69-77. Simmons involved a jury trial in the SCJ in Toronto. Mr. Pinkowski’s case does not involve a jury and while the jury factor is an important distinguishing feature, I agree with the overall reasoning of Nakatsuru J. and find it has direct application to this case.
(R. v. Pinkowski, para. 28)
[59] In response to the applicant’s claim that the Court and Crown should have done more to move his charges to trial, I offer Justice Nakatsuru’s comments at para. 20 of Simmons:
…The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This is [sic] turn had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials has become complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was.
(R. v. Simmons, 2020 ONSC 7209)
[60] The depth of the impact of the virus on criminal justice can be seen beyond the courtrooms in Ontario and throughout this country. In the Commonwealth of Virginia v. Vila, Criminal Number FE-2019-0000939, the Circuit Court of Fairfax County adopted the language of numerous State Courts and called the pandemic “a national disaster”. The Court said:
The Chief Justice’s March 27, 2020 Order states that in determining a speedy trial issue, such as the one now before the Court, “considerations may include the liberty interests of the defendant, and the health and safety of the parties, attorneys, court personnel, and others necessarily involved and the ability of the court to safely proceed, taking into account the ability of the court to use technology as authorized by law, social distancing and other measures.”
The “liberty interests” of the defendant is clear. He is incarcerated pending trial. Any period of delay necessitated by this natural disaster will result in further incarceration of the defendant. Against this circumstance the Court must consider the “health and safety” of all trial participants and the “ability of the court to use technology as authorized by law, social distancing and other measures.”
For the following reasons, the Court finds that it cannot protect the “health and safety” of the trial participants if it conducts a jury trial in the midst of this judicial emergency and pandemic.
[61] In California in United States v. Olsen, No. 20-50329, the United States Court of Appeals for the Ninth District considered a lower court ruling on the implications of the pandemic on the Sixth Amendment guarantee to a criminal defendant of “the right to a speedy and public trial”. In setting aside the lower court, the Ninth Circuit said the following:
The Central District of California did not cast aside the Sixth Amendment when it entered its emergency orders suspending jury trials based on unprecedented public health and safety concerns. To the contrary, the orders make clear that the decision to pause jury trials and exclude time under the Speedy Trial Act was not made lightly. The orders acknowledge the importance of the right to a speedy and public trial both to criminal defendants and the broader public, and conclude that, considering the continued public health and safety issues posed by COVID-19, proceeding with such trials would risk the health and safety of those involved, including prospective jurors, defendants, attorneys, and court personnel. The pandemic is an extraordinary circumstance and reasonable minds may differ in how best to respond to it. The District Court here, however, simply misread the Speedy Trial Act’s ends of justice provision in dismissing Olsen's indictment with prejudice.
[62] Section 14(1) of the Courts of Justice Act, R.S.O. 1990, c C.43 provides that the Chief Justice of the Superior Court shall direct and supervise the sittings of the Court and the assignment of its duties.
[63] To suggest that Chief Justice Morawetz should have held a hearing and created an evidentiary record before directing the suspension of jury trials in the Province defies common sense. There was no absence of information from government, the medical profession and the media regarding the infectious nature of this virus. Exigencies demanded that the Court take swift and direct action to safeguard the health of all justice system participants, including groups of the public summonsed to attend courthouses for jury selection.
[64] To suggest that this was a unilateral decision without proper foundation is unsupportable. While it is true the record before me does not provide evidence of the consultative process engaged in by the Chief Justice prior to issuing directives, it is folly to harbour the thought that he simply moved forward on his own. Part of the public record includes the comments of Chief Justice Morawetz at the September 22, 2020 Opening of Courts Ceremony:
On March 15, 2020, with the unanimous support of RSJ Council and supported by public health advice, I issued a Notice to the Profession suspending the Court’s regular in-person operations but providing for hearings of urgent matters by teleconference. As Chief Justice, I was compelled to do my part to protect the health and safety of all who work in or must attend a courthouse.
Immediately thereafter, a series of events unfolded.
I conducted daily emergency management meetings with the Court’s COVID-19 Emergency Response Team: Associate Chief Justice Marrocco, Justice Michael Brown, Mohan Sharma, Norine Nathanson, Josh Patlik and Jennifer Knight. The Council of Regional Senior Judges met frequently and worked tirelessly to advise me on how best to continue the court’s operations in these unprecedented times, keeping in mind regional pressures. I was also in regular contact with the Attorney General and my fellow Chief Justices. Together we pursued every conceivable way to enable continued access to the Court.
Our Court’s response to the pandemic was supported by bar associations and the Attorney General. We convened Working Groups for Family, Civil, Criminal and Small Claims Court matters. These Working Groups included not only judges but representatives from the Ministry of the Attorney General and other Ministries, bar associations, legal aid and other organizations. I wish to acknowledge the commitment and leadership of the judiciary and lawyers in my office for making these Working Groups a success. I also wish to thank the individual lawyers and the Ministry and organization representatives who have served on these Working Groups. Because of your dedication and hard work, we have accomplished so much: new practices and processes, new technology and a new flexible approach to the administration of justice. We came together as never before to respond to this crisis.
[65] After the loss of the October 21, 2019 trial date, applicant’s counsel suggests this trial could have been rescheduled within 6 months. A trial scheduled 5 to 6 months after October 21, 2019 would have been suspended by the notice of March 17, 2020 suspending all in-person proceedings.
[66] The second date of December 14, 2020 was vacated due to the rising level of infections and the determination by the Chief Justice that juries could only be assembled in “Green Zones”. To suggest that the RBC Convention Centre in London would have somehow assisted this trial is speculation. Significant renovations were made to the London Courthouse in late summer 2020 and three in-custody jury trials took place in the brief period before trials were suspended in November, 2020. In R. v. Allen (1996) 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (C.A.), p. 348, Doherty J.A. reminded us that “No case is an island to be treated as if it were the only case with a legitimate demand on court resources.”
[67] There has never been a period of time since November, 2020 when jury trials could be done safely in London or anywhere in the Southwest Region. While I am hopeful that the present trial date of October 18, 2021 is secure, there is no guarantee as the virus continues in waves.
[68] The Superior Court of Ontario along with the Courts in the Province have worked with the Ministry of the Attorney General to reinvent how the criminal justice system operates in this Province. Massive efforts have been expended to get matters back into courtrooms safely. We have not come to a place yet where we can attack the massive backlogs created, but that is not the result of complacency. As Justice Nakatsuru put it … “A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was.”
[69] In Pinkowski at para. 34, Justice Javed commented on the similar notices provided by the Chief Justice of the Ontario Court of Justice:
34 In Jordan, at para. 40, Justice Moldaver implored all justice system participants to avoid “a culture of complacency” which had previously plagued the justice system resulting in problems of delay. In my view, the various Notices of the Office of the Chief Justice did just that in midst of an uncertain and evolving public health crisis. Litigants were being instructed how to avoid being complacent, by reassessing criminal prosecutions, conducting mandatory pre-trials and exploring whether remote technology could be used to conduct proceedings.
[70] While my previous calculation left net delay at 28 months and 9 days after the deduction of defence delay, it is more accurate to conclude that there was never a period from the first trial date of October 21, 2019 to the present trial date of October 18, 2021 when these charges could have been tried. The net delay is therefore more accurately assessed at 23 months and 8 days, or the time from the laying of the charges to completion on the first trial date.
[71] For the above reasons, the application is dismissed.
Regional Senior Justice B. G. Thomas
Released: May 5, 2021.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NATHAN SMITH
REASONS FOR JUDGMENT
Thomas, RSJ.
Released: May 5, 2021.
[^1]: Matters set in March were adjourned until June 2, 2020; matters set in April were adjourned until June 3, 2020; and matters set in May were adjourned until June 4, 2020.
[^12]: For example, see R. v. Simmons, 2020 ONSC 7209 per Justice Nakatsuru; R. v. G.R., 2020 ONCJ 578 at para. 3 per Doorly J.; R. v. Stack, 2020 ONCJ 544 at para. 44 per Mackay J.; R. v. Morrison, 2020 SKPC 28, at para. 110; R. v. Folster, [2020] M.J. 187, at paras. 28-30; R. v. Ismail, 2020 BCPC 144, at para. 105.