OSHAWA COURT FILE NO.: CR-21-15493
DATE: 20211001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH CHAVES
Defendant/Applicant
Kristen Pollock, for the Crown
James Mencel, for the Defendant/Applicant
HEARD: June 25, 2021
REASONS FOR DECISION
DE SA J.:
[1] The Applicant stands charged on a seven-count indictment related to domestic violence allegations against his former partner. The Applicant was initially charged on two separate Informations: 18-45119 (Information #1) and 19-21842 (Information #2) stemming from his arrests on January 20, 2019 and March 30, 2019, respectively.
[2] The Applicant’s trial is anticipated to conclude on December 17, 2021. By that point, 34 months and 28 days will have passed since his initial arrest on January 20, 2019 for the charges originally contained on Information #1.
[3] In this case, no delay has been explicitly or implicitly waived by the Applicant.
[4] Much of the impugned delay flows from the Crown’s decision to join up the charges on Information #1 with the allegations in Information #2.
[5] The Applicant submits the delay flowing from this decision was unreasonable and the charges from January 20, 2019 ought to be stayed. According to the Applicant, the Crown was required to prioritize the Applicant’s s. 11(b) rights in deciding how to proceed.
[6] In my view, the Crown’s decision was a reasonable one. When considered in context, the delay is not unreasonable.
[7] The application is dismissed.
[8] The reasons for my decision are outlined below.
The Offences
[9] On January 20, 2019, the Applicant was arrested in relation to charges stemming from an alleged assault on May 4, 2018. The complainant, the Applicant’s former partner, alleges that the Applicant assaulted her during a car ride. At the time, the Applicant was on a probation order prohibiting contact. The Applicant was charged with Assault, contrary to s. 266 of the Criminal Code, and three counts of Fail to Comply with Probation, contrary to s. 733.1 of the Criminal Code (Information #1).
[10] On March 30, 2019, the Applicant was arrested and charged again in relation to new domestic allegations involving the same complainant. These allegations are alleged to have occurred between May 4, 2018 and March 30, 2019.
[11] In relation to the newer allegations, the Applicant was charged with Assault, contrary to s. 266 of the Criminal Code, Utter Threats, contrary to s. 264(1)(a) of the Criminal Code, Mischief under $5,000, contrary to s. 430 of the Criminal Code, Obstruct Justice, contrary to s. 139(2) of the Criminal Code, Fail to Comply with Probation, contrary to s. 733.1 of the Criminal Code (x4), and Fail to Comply with Recognizance, contrary to s. 145(3) of the Criminal Code.
Procedural History
[12] On February 5, 2019, the Applicant received disclosure and advised the Court he had received a legal aid certificate. The Applicant scheduled a Crown Pre-Trial for March 8, 2019 and a Judicial Pre-Trial for April 1, 2019.
[13] On March 31, 2019, the Applicant appeared in bail court after being arrested on the charges covered on Information #2. On April 1, 2019, the Applicant conducted a JPT on Information #1 and was released on a global bail on both Informations. The matter was remanded to April 10, 2019 to schedule trial dates on Information #1 with the trial coordinator.
[14] On April 10, 2019, it was confirmed that trial dates on Information #1 had been scheduled for February 10, 2020 in the Ontario Court of Justice, as the Crown had elected to proceed summarily.
[15] On Information #2, the Applicant was charged with Obstruct Justice, pursuant to s. 139(2) of the Criminal Code. This provision is straight indictable, and on July 22, 2019, the Applicant elected to be tried by judge and jury in the Superior Court of Justice with a preliminary inquiry. That same date, the Applicant scheduled preliminary hearing dates for June 1-2, 2020.
[16] On February 10, 2020, the Applicant appeared for his trial on Information #1 and was prepared to proceed. Unfortunately, the complainant did not attend, and the Crown sought a material witness warrant. As the complainant was properly subpoenaed, there was no basis for the defence to oppose an adjournment.
[17] Counsel for the Applicant and Crown attended the trial coordinator’s office and scheduled new dates. The dates of May 4 through May 6, 2020 were selected for trial and Information #1 was remanded to the new scheduled trial dates.
[18] Ultimately, the court shutdown occasioned by the COVID-19 pandemic forced an adjournment of the Applicant’s scheduled trial dates from May 4-6, 2020. Similarly, the Applicant’s preliminary hearing scheduled in June 2020 for Information #2 was adjourned due to the pandemic.
[19] On July 16, 2020, the Crown contacted counsel for the Applicant and advised that the Crown’s intention was to join both Informations, “so that one judge can assess credibility and for reasons of judicial economy.” The Crown also viewed the charges as factually intertwined given the presence of an obstruct justice charge.
[20] On July 27, 2020, a mandatory JPT was held on both sets of charges and the Crown laid a replacement information joining Information #1 and Information #2. At that time the Crown stated on the record that part of the rationale for proceeding in that fashion was “to one, avoid a multiplicity of proceedings” on charges that involved the same complainant and the same series of events. The applicant’s notice of election to proceed by judge and jury was transferred to the joint information.
[21] When asked if the Applicant was consenting, counsel for the Applicant stated that he did not consent, but also had no basis to object as the proposed action did not constitute an abuse of process, particularly as the Crown conceded to a preliminary inquiry on all charges. On the issue of delay, counsel for the Applicant stated:
With respect to the set of allegations that were proceeding by summary conviction, they were actually up for trial in February. The complainant did not attend. There was a material witness warrant issued and then that matter was scheduled – re-scheduled for trial to commence in May which unfortunately also had to be adjourned because of the pandemic. So I alerted my friend that obviously joining these charges is going to significantly delay the allegations that were proceeding summarily and I, I did alert my friend that there might be some Jordan concerns about that down the line. So I just wanted to put that on the record, that the Crown is on notice about that issue.
[22] The request to reschedule was submitted on the first date permitted: August 31, 2020. On October 21, 2020, the trial coordinator offered the following dates for preliminary hearing: January 13-15, 2021; January 18-20, 2021; January 26-28, 2021; and February 3-5, 2021. The matter was scheduled for the earliest date offered.
[23] Had the Crown not re-elected, the Applicant’s trial on Information #1 could have proceeded on January 13, 2021.
[24] The Applicant conducted his preliminary hearing on January 13, 2021. He was discharged on two counts from Information #2: Obstruct Justice, contrary to s. 139(2) of the Criminal Code, and Utter Threats, contrary to s. 264(1)(a) of the Criminal Code. Following committal, the Applicant accepted the first available date in the Superior Court of Justice – February 5, 2021.
[25] At the judicial pre-trial in Superior Court, the parties agreed on a 1 week estimate for a jury trial. The Crown indicated on the Pre-Trial Conference Report that should the Applicant wish to re-elect to a judge alone trial, the Crown would consent.
[26] Once in the Superior Court, the Applicant conducted a Judicial Pre-trial and scheduled dates for a 5-day trial with judge and jury. Ultimately, although counsel for the Applicant was unable to accept the first available date of November 29, 2021, the second available date of December 13, 2021 was selected.
[27] The Applicant’s trial is anticipated to conclude on December 17, 2021. By this point, 34 months and 28 days will have passed since his initial arrest on January 20, 2019 for the charges originally contained on Information #1.
Analysis
The Jordan Framework
Presumptive Ceiling
[28] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada redefined the approach to s. 11(b). The existing framework provided no incentive to be efficient, but rather encouraged strategies which were directed at shifting blame or providing excuses for inefficient practices.
[29] To address these issues, the Supreme Court set a presumptive ceiling for delay of 18 months for Provincial Court and 30 months for those cases going to Superior Court.[^1]
[30] Under the Jordan framework, delay exceeding the presumptive ceiling is presumptively unreasonable and a stay will issue unless the Crown can show exceptional circumstances.: R. v. Jordan, supra, at para. 46.
[31] If the delay falls below the presumptive ceiling, the onus shifts to the defence to demonstrate that the defence took meaningful, sustained steps to expedite the proceedings and that the case took markedly longer than it reasonably should have.
[32] Stays are rare and limited to clear cases when the Jordan threshold is not exceeded.: R. v. Jordan, 2016 SCC 27, at paras. 84-87; R. v. Belzil, 2021 ONSC 781, at para. 95.
Subtracting Defence Delay
[33] Delay is calculated from the time the charges are laid until the actual or anticipated end of trial.[^2] Any defence delay – waived or caused by the defence – is subtracted from the total.[^3]
[34] Delay that is explicitly waived by the defence is deducted from the total and is not counted toward the ceiling. Any waiver by the defence however must be “…clear and unequivocal [t]he accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.”: R. v. Jordan, supra, at paras. 60, 63-65; R. v. Cody, 2017 SCC 31, at para. 30; and R. v. Godin, 2009 SCC 26, at para. 11.
[35] Delay that is caused solely by the conduct of the defence, such as delay caused by defence tactics to deliberately sidetrack the trial, will also be deducted from overall delay and not counted towards the ceiling.
[36] The defence will also have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. R. v. Jordan, 2016 SCC 27, at para. 64; R. v. Mallozzi, 2018 ONCA 312, at para. 3.
[37] Jordan is explicit, however, that defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. As the Supreme Court noted:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.
R. v. Jordan, supra, at paras. 49, 61, 63, 65, and 66.
R. v. Cody, supra, at paras. 29.
Exceptional Circumstances: Discrete Events and Complex Cases
[38] The presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The Supreme Court has also been clear that the absence of prejudice is not a basis to justify delays exceeding the presumptive guideline.
[39] Two forms of exceptional circumstances are identified in Jordan: discrete exceptional events or circumstances; or that the case was particularly complex requiring an inordinate amount of court or preparation time. As explained in Jordan:
To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity.
Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.
R. v. Jordan, supra, at para. 81.
1) Discrete Events
[40] If relying on ‘discrete events’ to justify delay, the Crown must establish that discrete events claimed were outside Crown counsel’s control in the sense that:
- They were reasonably unforeseen or reasonably unavoidable; and
- Crown counsel could not reasonably remedy the delays emanating from those circumstances once they arose.
[41] The Crown must show that it took reasonable available steps to avoid and address the problem before the delay arose if it was foreseeable. The Crown must also take steps to reduce the delays occasioned by discrete events. Mechanisms such as case management processes, seeking the assistance of the court and defence to streamline evidence and issues for trial, or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. R. v. Jordan, supra, at paras. 69 and 70.
2) Complexity
[42] The Crown may also point to complexity of the case as a justification for time taken beyond the presumptive ceiling. These are cases where, because of the nature of the evidence, or the nature of the issues, there are inordinate time requirements.
[43] In those circumstances, factors such a voluminous disclosure, large numbers of witnesses, significant expert evidence, numerous charges or pre-trial applications and novel or complex legal issues, may justify the extension of the time period. However, the Jordan court noted that even the ‘typical murder trial’ would be unlikely to be of sufficient complexity to trigger this exception. R v. Jordan, supra, at paras. 77-78.
[44] In Jordan, the Court noted that the ‘complex case’ exception to the presumptive timelines would be accessible only where prosecutors can show that “…having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity.” R. v. Jordan, supra, at para. 79.
Attributable Delay in the Case at Bar Exceeds the Ceiling in Jordan
[45] In this case, the total delay is almost 35 months to the anticipated completion of the Applicant’s trial. R. v. Jordan, supra, at paras. 76 and 81.
[46] None of this delay can be attributed to unreasonable or illegitimate defence action or waiver. The Applicant has clearly made all reasonable efforts to be tried within the Jordan ceiling.
[47] The Court and the Crown were available for trial dates beginning on November 29, 2021. Had the defence been available for those dates, the anticipated end date for the trial would have been December 3, 2021.
[48] Accordingly, the two-week period between the earliest available trial date and the date defence counsel was available for trial should be deducted from the total delay, leaving a net delay of 34 months and 14 days.
[49] As the net delay exceeds both the 18-month and the 30-month ceilings, the Crown bears the onus of justifying the delay. At this stage of the analysis, the delay is presumptively unreasonable.
Are there Exceptional Circumstances in this Case?
[50] As noted above, the Crown can only justify delay exceeding the Jordan ceiling based on exceptional circumstances.
[51] The parties agree that this case is not particularly complex. It is a charge of simple assault and three counts of failing to comply with probation. It involves one primary witness - the complainant.
[52] However, the Crown takes the position that there are a number of discrete exceptional events that must be taken into account that justify the delay in this case.
1) The non-attendance by the complainant - February 10, 2020 – May 4, 2020 (2 months & 24 days)
[53] The unavailability of a witness is an example of a discrete event, including where a complainant fails to appear in accordance with a subpoena. R. v. Francis, 2019 ONCJ 173, at para. 29 and R. v. Coulter, 2016 ONCA 704, at para. 49.
[54] In this case, the non-attendance of the complainant at the first trial was not within the Crown’s control. There is a reasonable expectation that witnesses will obey court orders. In response to the complainant’s failure to do so in this case, the Crown sought the remedy of a material witness warrant, which was not opposed by the defence. As the presiding judge noted, an adjournment of the trial became inevitable as a result.
[55] The new trial dates were only 2 months and 24 days from the original trial date.
[56] The Crown takes the position that the delay between the first trial date and second trial date resulted from a discrete event and should be deducted from the net delay.
[57] I agree that this period should be deducted from the total delay.
2) COVID-19: May 4, 2020 – January 13, 2021 (8 months & 9 days)
[58] As a result of the pandemic, the Applicant’s trial on Information #1 and his preliminary inquiry on Information #2 both had to be adjourned and ultimately rescheduled.
[59] Even if the Crown had not joined the two Informations, the earliest date offered by the trial coordinator was January 13-15, 2021. The Crown takes the position that the period of time between the adjourned trial date of May 4, 2020 and the first available date of January 13, 2021 resulted from a discrete event that was outside of the Crown’s ability to remedy. The Crown submits that the 8 months and 9 days should be deducted from the net delay.
[60] The COVID-19 pandemic has been appropriately described as “the quintessential discrete exceptional circumstance” as defined in Jordan. It could not be foreseen or avoided. Very little could be done to remedy or mitigate the ongoing court delays and mass adjournment of cases arising out of this crisis. R. v. Belzil, 2021 ONSC 781, at para. 86 and R. v. Robinson, 2021 ONSC 2445, at para. 101.
[61] In the circumstances, I agree that the delays occasioned by the initial adjournment and rescheduling of the matter should be deducted. The Crown and the Court took reasonable steps to re-schedule the matter in the face of the delays flowing from COVID-19.
[62] Deduction of this period leaves a remaining delay of 23 months and 11 days.
3) COVID-19: January 13, 2021 – December 17, 2021 (11 months & 4 days)
[63] The Applicant elected to proceed by judge and jury. Jury trials were suspended in Central East Region pursuant to direction from the Chief Justice for much of the period that the Applicant’s matter has been before the Superior Court.
[64] The suspension has created a backlog of cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.” R. v. Robinson, 2021 ONSC 2445, at para. 102.
[65] The congestion has reduced the Crown’s capacity to make up for delays occasioned by other discrete events. This backlog has no doubt attributed to the delays in this case.
[66] It is difficult to quantify the actual delay associated with this congestion. In my view, this type of congestion created by COVID-19 should be a contextual factor considered in assessing the reasonableness of delay.
[67] The Crown is still obliged to expedite matters to the extent possible. However, 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. R. v. Henry, 2021 ONSC 3303, at para. 20.
The Crown’s Decision to Join both Matters
[68] Considering the delays associated with COVID-19 alone, the Crown could clearly justify the delay if the appropriate presumptive guideline was 30 months.
[69] The Applicant argues, however, that the COVID-19 pandemic cannot be considered an exceptional circumstance to excuse the delay, as the jurisprudence is clear that that reasonable efforts must be made to mitigate the delay once it becomes apparent. R v. Jordan, supra, at para. 105.
[70] The Applicant argues that the Crown should have elected to prioritize the re-setting of the Applicant’s trial dates on Information #1 and secured the first available dates for trial in the Ontario Court of Justice. The dates that were used for the preliminary hearing (January 2021) could have been easily used for the Applicant’s trial on Information #1. At that time, the applicable guideline for the charges on Information #1 was 18-months.
[71] Rather than prioritizing the Applicant’s s. 11(b) rights, the Crown pursued a course of action where the risk of excessive delay was readily apparent, particularly given the prolonged suspension of jury trials.
[72] The Applicant places reliance on the statements of the Ontario Court of Appeal in R v. Manaserri, 2016 ONCA 703. In R v. Manaserri, the Ontario Court of Appeal ordered a stay of proceedings with respect to a delay of 86 months. On the issue of co-accused delay, the Court stated:
Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates.
Once the ceiling has been breached, the Crown cannot simply point to a past difficulty and assert mission accomplished. The Crown must also show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. [Citations omitted] [Emphasis added.]
R. v. Manaserri, 2016 ONCA 703, at paras. 323, 343.
[73] The Applicant also relies on the remarks of the Ontario Court of Appeal in R. v. B.H. where the Court upheld a stay of proceedings as a result of delay of 35.5 months in a case where significant delay was occasioned by the joinder of Informations. The Court commented at para. 3:
The delay in this case was quite extraordinary for a fairly simple case scheduled to last three days. The principal reason for the delay was the Crown’s desire to join this prosecution to a second sexual assault charge, involving a different complainant, laid against the respondent a year after the first. Not surprisingly, the respondent sought to sever the two charges from each other. For a variety of reasons, the court administration was not able to identify who would be the trial judge. Accordingly, the application was adjourned on several occasions for almost exactly a year. In addition, on several occasions, the trial was delayed because the Crown decided to prioritize other trials. Moreover, at no time did the Crown raise the potential s. 11(b) issue, even after the case was well offside the Morin guidelines. These delays, both institutional and Crown initiated, when coupled with the respondent’s demonstrated eagerness on several occasions to take steps to proceed to trial, justified the trial judge’s conclusion that the delay in this case was “unreasonable and unacceptable.
R. v. B.H., 2009 ONCA 731, at para. 3.
[74] I acknowledge the concerns raised by the Applicant regarding the Crown’s decision to join both sets of charges. There is no doubt that the Crown was well aware that the decision to proceed in the manner that it did would inevitably increase the delay for Information #1. However, I accept that the Crown’s decision, in context, was a reasonable one.
[75] Unlike the cases referenced by the Applicant, the Crown’s actions do not reflect indifference to the Applicant’s s. 11(b) rights. Both matters had to be rescheduled due to the COVID-19 pandemic. Delays associated with re-scheduling were inevitable. While there is no doubt that the Crown could have used the January 2021 date for the trial of the charges on Information #1, this would have meant delaying the progress of the charges on Information #2.
[76] The charges themselves were also clearly related. A negative outcome on a separate trial on Information #1 would have created problems with relying on the evidence in a subsequent trial (Information #2). The concern for the complainant having to testify at multiple trials, and the interests of having all relevant evidence before the trier of fact were also important factors for the Crown to consider in exercising its discretion to proceed with both sets of charges together.
[77] There were also incidental benefits to the Applicant and the justice system, which include:
• Court time was saved that could be used for other matters and the Applicant’s matters could collectively be heard earlier in the OCJ because only 3 days had to be set, instead of 4 days over 2 separate proceedings;
• By joining matters, the delays with Information #1 were offset by the earlier dates obtained on Information #2. The joint preliminary inquiry was eligible to enter the re-setting queue on August 31, 2020, whereas the Applicant would have had to wait until September 8, 2020 to enter the queue to reschedule his preliminary inquiry on Information #2; and
• The Applicant, his counsel and the complainant were only required to attend court in person for one proceeding instead of two, limiting their exposure to an indoor, public setting during the pandemic.
[78] Finally, when the decision was made to join the proceedings, it was not just the Applicant’s matters that needed to be rescheduled. In preparing for the resumption of matters in the Ontario Court of Justice, the Crown had to consider all accused who needed court time, not just the Applicant.
[79] As stated in R. v. Allen, that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.” R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), at para. 27.
[80] The 11(b) analysis requires all factors be taken into account in assessing the reasonableness of the delay. I note the comments of the majority in R. v. Jordan at paras. 58 and 71:
Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework “reduces reasonableness to two numerical ceilings” (para. 254). As we will explain in greater detail, this is clearly not so. The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken. As our colleague acknowledges, pursuant to our framework, “the judge must look at the circumstances of the particular case at hand” in assessing the reasonableness of a delay (para. 301). [Emphasis added.]
[81] While the primary purpose of s. 11(b) is the protection of an accused’s individual rights, s. 11(b) also engages the interests of Canadian society as a whole: R. v. Seegmiller, 2004 46219 (ON CA). The interests involved do not just include the accused’s liberty and security interests and his or her interest in a fair trial. The interests of a complainant and the proper prosecution of a matter are also valid and important considerations.
[82] Section 11(b) is framed in terms of reasonableness. R. v. Kovacs-Tatar, 2004 42923 (ON CA), at p. 78. In Morin, Sopinka J. described the exercise in these terms at p. 1130:
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra [R. v. Smith (1989), 52 C.C.C. (3d) 97], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 105).
[83] In the circumstances, I am satisfied that the delay in this case is not unreasonable. In my view, the Crown has justified the delays given the unique circumstances of this case.
[84] Accordingly, the application is dismissed.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSEPH CHAVES
Defendant/Applicant
REASONS FOR DECISION
Justice C.F. de Sa
Released: October 1, 2021
[^1]: Ibid, at para. 49.
[^2]: R. v. Morin, 1992 89 (SCC), [1992] 1 SCR 771, at p. 788.
[^3]: R. v. Jordan, supra, at paras. 60-63.