RULING ON CROWN’S APPLICATION TO SUMMARILY DISMISS THE ACCUSED’S S. 11(B) MOTION

Factual Background

[1] The respondent, Nawang Radufe, is charged with conspiring to extort the owner of a Mah-jong parlour in the City of Toronto. Upon his arrest on 23 June 2018 police discovered a loaded firearm in Mr. Redufe’s waistband. Ultimately, Mr. Redufe was further charged with extortion, uttering threats, and various firearms offences.

[2] A two-day preliminary inquiry was held at the Ontario Court of Justice on 16-17 May 2019 and the respondent was committed to stand trial on all offences. A two week jury trial was scheduled for 25 May 2020. However, on 15 March 2020, the Chief Justice of the Superior Court of Ontario issued a Notice to the Profession publicly halting all criminal matters at the Superior Court of Justice due to the health risks posed by the COVID-19 pandemic.

[3] During the course of 2020, the Superior Court of Justice modified its protocols and procedures to permit remote hearings and in-person proceedings, including trials, conducted by judge alone. However, jury trials remained suspended pending further notice. Sometime in May-June 2020, the Crown informed the respondent’s counsel it would be willing to consent to a re-election to a judge alone trial. However, the respondent re-affirmed his intention to be tried by a jury.

[4] Jury trials did resume, briefly, in the autumn of 2020 but were again suspended after COVID-19 case numbers dramatically increased. On 13 January 2021, the Chief Justice issued a further Notice to the Profession indicating the suspension of jury trials until 3 May 2021. On 19 February 2021, the respondent’s trial date was fixed for 18 April 2022.

[5] The respondent concedes that without the delays caused by the response to the pandemic the time to trial would be approximately 24 months. However, the respondent argues that the response itself was unconstitutional and violated his rights under s. 11(b) of the Charter of Rights and Freedoms.

Section 11(b) Legal Principles

[6] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada fundamentally changed the s. 11(b) framework which had governed delay applications since its decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

[7] The Court imposed strict timelines for the completion of criminal cases: 30 months for offences tried by indictment and 18 months for those dealt with summarily. Any delay beyond these time limits was presumed unreasonable.

[8] Jordan also introduced a new method of calculating delay periods. The time accruing from the date of charge to the end of the trial is “the total delay”. Any delay periods attributable to the defence (“defence caused delay”) must be subtracted from that total leaving a “net delay” figure.

[9] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[10] At para. 69, the Court set out its definition of what constituted “exceptional circumstances”:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[11] At para. 71, the Court described exceptional circumstances falling under two categories: discrete events and particularly complex cases. As noted below, the courts in Ontario have universally taken the view that the pandemic and its judicial consequences can only be described as exceptional circumstances.

[12] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario, set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial

(2) Subtract defence delay from the total delay, which results in the “net delay”

(3) Compare the net delay to the presumptive ceiling

(4) 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

(5) 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

(6) 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

(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Positions of the Parties

[13] The respondent concedes that the COVID-19 pandemic is real and has created an unprecedented situation impacting all aspects of life. However, in his s. 11(b) application the respondent argues that the spread of the virus should not have resulted in the closure of the courts.

[14] In support, he relies on the affidavit of Dr. Richard Schabas, a retired physician with impressive qualifications in the field of epidemiology, medicine and public health. Dr. Schabas was Ontario’s Chief Medical Officer of Health for 10 years and has given testimony at three separate Royal Commissions on public health issues including the Commission on SARS headed by the late Justice A. Campbell.

[15] Dr. Schabas is a vocal critic of the lockdown policy adopted by governments across the globe arguing there is no scientific foundation for the measure. In Dr. Schabas’ view, the lockdown measures were implemented on the basis of panic rather than meaningful scientific analysis. According to Dr. Schabas there is very little evidence beyond anecdote to justify the limitations of large gatherings given the variables involved in the transmission of the virus.

[16] Dr. Schabas suggests that the cancellation of jury trials was an “arbitrary” measure and adds they could have proceeded “with minimal risk by taking a few basic precautions” such as screening, social distancing and masking.

[17] The respondent agrees that COVID-19 is “an act of God that is no one’s fault” but also contends that the way in which the pandemic was handled must be reviewed. If the governmental and judicial response is found to be “lacking or unconstitutional”, any delay must be considered institutional for the purposes of s. 11(b).

[18] In para. 27 of his factum, the respondent writes: “In other words, was the shutdown of court operations itself reasonable? What was the rationale? Under what legal authority was that shutdown ordered? And what does that legal authority say about the criteria for such measures?”

[19] The applicant Crown seeks summary dismissal of the respondent’s s. 11(b) application. It argues the application has no reasonable prospect of success and any viva voce evidence called by the parties would prove to be of no assistance in deciding the application on its merits. It further submits that this meritless application will consume days of court time and resources which the justice system can ill afford.

Summary Dismissal Legal Principles

[20] The court’s power to dismiss an application without holding an evidentiary hearing or voir dire has long been recognised as a mechanism by which it controls its own process.

[21] In R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.), the court upheld a trial judge’s decision to deny a s. 9 Charter application without a voir dire. Writing for the court, Finlayson J.A. held, at p. 296, that:

In the interests of conducting an orderly trial, the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issues either before or at the outset of the trial. All issues of notice to the Crown and the sufficiency of disclosure can be sorted out at that time. Failing timely notice, a trial judge, having taken into account all relevant circumstances, is entitled to refuse to entertain an application to assert a Charter remedy.

[22] Justice Finlayson held that the judge had the power to ask the defence to summarise the nature of the evidence it would adduce on an application and “weed out” those motions “which have no basis in fact or law, and can decide how and when those with potential merit should be resolved”: at p. 302.

[23] Similarly, in R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.), the court held that a voir dire was not required to determine the validity of a search warrant alleged to contain misleading statements. The court held that even without the impugned statements the information to obtain the warrant was sufficient.

[24] The court in Vukelich, at para. 25, approved an earlier case, R. v. Hamill (1984), 1984 CanLII 39 (BC CA), 14 C.C.C. (3d) 338 (B.C.C.A.), where it was held, at p. 367, that:

In those cases where the accused does apply to exclude the evidence, it will be for the trial judge to decide what procedure should be followed but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue. It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence.

[25] In Ontario, these principles have been codified into Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, which provides:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[26] The power of a judge to summarily dismiss a motion was revisited in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, where, at para. 38, the court directed:

[T]rial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel -- Crown and defence -- should take appropriate opportunities to ask trial judges to exercise such discretion.

Analysis

[27] The respondent acknowledges that this court has found the closure of the courts to constitute an exceptional circumstance within the definition set out in Jordan: R. v. Belzil, 2021 ONSC 781, at para. 86; R. v. Khattra, 2020 ONSC 7894, at paras. 61-62; R. v. Simmons, 2020 ONSC 7209, at para. 60.

[28] However, the respondent also submits that in these cases, the applicants conceded the pandemic to be a discrete event and the court in each case was simply left with the task of determining how much time should be allocated to delay caused by the pandemic.

[29] That is not the case here: the respondent does not make any such concession. The respondent accordingly asserts that the decision to shut down the courts must be reviewed and poses the following questions:

• Was the shutdown reasonable?

• What was the rationale?

• Under what authority was shutdown ordered?

• What does that authority say about the criteria for the shutdown measures?

[30] In essence, the respondent’s s. 11(b) motion is an attack on the correctness of the Chief Justice of the Superior Court’s decision to halt jury trials in the face of the pandemic. He says that the courts were shut down without any discussion or debate and that the spread of COVID-19 cannot justify the infringement of his s. 11(b) rights.

[31] This is the flaw in the respondent’s position. The manner in which the world reacted to the threat of COVID-19 will be debated for many years to come. No doubt scientists on both sides of the debate will vociferously advance their position and claim that they are right.

[32] It may well be that sometime in the future, with the benefit of hindsight, society takes the view that the lockdown measures were indeed, as Dr. Schabas says, a panic move that was disproportionate to the threat posed by COVID-19. On the other hand, it may not.

[33] Whatever view prevails, there can be no dispute that the discretionary order of the Chief Justice to suspend jury trials, correct or not, was an exceptional circumstance within the Jordan framework. Even if the respondent is able to persuade this court that the Chief Justice was wrong to exercise his discretion in the manner that he did, the motion is doomed to fail because the decision could not be foreseen and could not be reasonably remedied by the Crown. It is worth noting that once the effects of the pandemic hit, the Crown took all reasonable steps to expedite the matter as best it could.

[34] I would also add that I cannot agree with the respondent’s suggestion that the court should permit the s. 11(b) motion to take place as it would take no longer than a day to complete. I note that, in addition to calling Dr. Schabas as a witness, the respondent has subpoenaed Dr. Martin Williams, recently retired Chief Medical Officer of Ontario to testify. I agree with the Crown that in order to rebut the assertions made by Dr. Schabas, particularly the allegations that the province acted out of panic, the Crown might need to call a significant number of witnesses to both rebut Dr. Schabas’ opinion and give evidence of how the decision making process relating to the lockdowns unfolded.

[35] This would not be a simple hearing and has the potential to turn into an inquiry about the lockdown rather than a motion to determine whether the respondent’s Charter rights were infringed. Whilst the respondent may have concerns about government policy regarding the pandemic, his criminal trial is not the correct forum in which to pursue them.

[36] For these reasons, the Crown’s motion is granted and the s. 11(b) application is dismissed without an evidentiary hearing.

S.A.Q. Akhtar J.

Released: 23 July 2021

COURT FILE NO.: CR-19-10000378-0000

DATE: 20210723

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NAWANG REDUFE

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Redufe, 2021 ONSC 5176

Case Summary

RULING ON CROWN’S APPLICATION TO SUMMARILY DISMISS THE ACCUSED’S S. 11(B) MOTION

Factual Background

Section 11(b) Legal Principles

Positions of the Parties

Summary Dismissal Legal Principles

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 3