COURT FILE NO.: CR-21-22
DATE: 20211027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DERON BENROY ARTHUR
Defendant
Sarah Sullivan and Mike Cousineau for the Crown
Jessica Read for the Defendant
HEARD: October 1, 2021
ruling on STAY APPLICATION
C. boswell j.
I.
[1] Anyone charged with a criminal offence in Canada has a constitutional right to be tried within a reasonable time: Charter of Rights and Freedoms, s. 11(b). Lawyers, scholars and jurists often differ about what a reasonable period of time looks like, in constitutional terms.
[2] In R. v. Jordan, 2016 SCC 27, the Supreme Court described the prevailing legal framework for assessing reasonable delay as plagued with “doctrinal and practical difficulties”. Jordan lamented a culture of complacency that had developed within the justice system towards delay. To combat these problems, the court developed a new analytical framework for applying s. 11(b) of the Charter.
[3] The core feature of the new framework was the implementation of presumptive ceilings: 18 months (from arrest) for cases going to trial in provincial courts and 30 months for cases going to trial in superior courts. These ceilings are conventionally referred to as the “Jordan Timelines”. They are rebuttable in limited circumstances, both above and below the presumptive ceilings, depending on case-specific factors.
[4] Mr. Arthur was arrested on October 27, 2019 and charged with one count of sexual assault. He is scheduled to proceed to trial in this court on March 18, 2022. The applicable presumptive ceiling is 30 months, or April 27, 2022. Accordingly, if all goes as planned, Mr. Arthur will have his trial within the Jordan Timelines and his s. 11(b) right to a trial within a reasonable time will have been respected.
[5] Mr. Arthur demurs. He submits that his s. 11(b) right to be tried within a reasonable time has not been respected. He offers two reasons in support of his position. First, he says that when Parliament enacted Bill C-75 in 2019, thereby substantially reducing the number of cases eligible for a preliminary hearing, they fundamentally shifted the landscape in terms of the delay analysis. He contends that an 18-month presumptive ceiling should now apply to cases proceeding in this court where the charges are not eligible for a preliminary hearing in the provincial court (“one-step cases”).
[6] Second, he says that the charge before the court is straightforward and that the delay he has experienced is markedly unreasonable in the specific circumstances of his case, even if a 30-month ceiling applies. He seeks a stay of proceedings against him.
[7] This ruling will unfold as follows. First, I will provide an overview of the Jordan decision and the presumptive ceilings it established for cases proceeding in this court (the “SCJ”) and in the Ontario Court of Justice (the “OCJ”). Next, I will provide an overview of Bill C-75 and describe the way it has affected criminal procedure. I will then turn to an assessment of the live issues raised by the application, which I perceive to fall into two broad groups:
A. In terms of the proposed reconsideration of the Jordan Timelines, I will canvass the impact of the vertical convention of precedent; prior jurisprudence involving one-step cases heard in this court; and, more generally, whether Parliament’s reduction of the number of cases eligible for a preliminary hearing warrants revisiting the established s. 11(b) ceilings; and,
B. In terms of the alleged unreasonable delay, I will assess the net delay after considering any periods waived, any defence delay and any exceptional circumstances. I will follow that assessment with an analysis of the assertion that this case has taken markedly longer than the time reasonably required in all the circumstances.
II.
JORDAN AND THE DELAY ANALSIS
[8] As Jordan makes clear, timely justice is a barometer of the general health of the criminal justice system. It is of central importance to a number of stakeholders, including accused persons, victims and the broader community.
[9] The liberty, security and fair trial rights of the accused are undoubtedly impacted by delays. At the same time, delay prolongs the suffering of victims who may be unable to move on with their lives pending the completion of the trial. And of course delays tend to raise questions in the broader community about the competence and efficiency of the justice system and can lead to a sense of frustration and disrespect.
[10] The bottom line, recognized by the court in Jordan, is that “timely trials further the interests of justice.”
[11] Prior to Jordan, s. 11(b) applications were governed by the framework set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The Morin framework directed application judges to balance four factors: the length of the delay; defence waiver; the reasons for the delay, including inherent time requirements, Crown delay, defence delay, institutional delay and others; and any prejudice to the accused person’s liberty, security and fair trial rights.
[12] The Supreme Court was starkly divided in Jordan about whether wholesale changes to the Morin framework were required. The four-judge minority was of the view that, with some tweaking, the Morin framework was an acceptable tool for ensuring that the right of an accused person to be tried within a reasonable time was defined and applied in a manner that appropriately balanced all relevant considerations.
[13] The five-judge majority of the court disagreed. In their view, the application of the Morin framework had proven, in practice, to be unpredictable. It was overly flexible and, in the result, led at times to the countenancing of inordinate delays. The analysis of prejudice was highly problematic and its treatment in the jurisprudence confusing, hard to apply and highly subjective. And it often led to complex, time-consuming and inefficient day-by-day accountings of the proceedings from charge to trial. In short, it was “too unpredictable, too confusing, and too complex.” (Jordan, para. 38).
[14] The majority elected to proceed in a new direction by imposing ceilings beyond which delay was presumptively unreasonable. The ceilings were described in the following language, at paras. 46-48:
[46] The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
[47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
[48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
[15] The ceilings were said to take account of factors that can reasonably contribute to the time it takes to prosecute a case, including the inherent time requirements of the case. They were described as accounting for “the significant role that process now plays in our criminal justice system.” (Jordan, para. 53).
[16] The presumptive ceilings are not intended to be aspirational. They are fixed ceilings, beyond which non-rebuttable prejudice to the accused is to be inferred.
[17] That said, the calculation of the ceilings is subject to extensions for defence delay and to account for exceptional circumstances. In other words, the ceilings are 18 and 30 months plus any amount of time attributed to defence delay or to exceptional circumstances.
[18] “Defence delay” is divided into two components: delay unequivocally waived by the defence; and delay that is caused solely by the conduct of the defence. (Jordan, paras. 61-63).
[19] Extending the ceiling for defence-caused delay is intended to prevent an accused person from benefitting from his or her own action or inaction that results in delay. It does not include the time reasonably required to legitimately respond to the charges. It does include deliberate tactics aimed at causing delay, including frivolous applications. See R. v. Cody, 2017 SCC 31 at paras. 29-33.
[20] Extending the ceiling to account for exceptional circumstances recognizes that even though the established ceilings account for a broad range of factors that can reasonably contribute to the time it takes to prosecute a case, there may be unforeseen or unavoidable circumstances, beyond the Crown’s control, that contribute to delay.
[21] The majority closed out its ruling by noting that “real change will require the efforts and coordination of all participants in the criminal justice system”. (Jordan, para. 137). They went on to outline the responsibilities of Crown and defence counsel and of the courts. They concluded with the following comments in terms of the role that legislators have to play:
For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial…Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations…
BILL C-75
[22] Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, was introduced by the Federal Government on March 29, 2018. It received Royal Assent on June 21, 2019.
[23] When enacted, Bill C-75 made a number of significant amendments to criminal procedure. Most notable, for the purposes of this case, is that it restricted the availability of preliminary inquiries to offences liable to a maximum sentence of 14 years or more of imprisonment.
[24] Prior to the introduction of the Bill, preliminary hearings were available, at the request of the accused or the Crown, where the accused was charged with an indictable offence and elected to be tried in the Superior Court by a judge or a judge and jury. After the Bill became law, only accused persons charged with indictable offences punishable by 14 or more years of imprisonment have the option of requesting a preliminary hearing.
[25] Mr. Arthur faces a maximum penalty of 10 years imprisonment if convicted of the charge against him. Prior to Bill C-75 he was eligible for a preliminary hearing. In the post-Bill C-75 world, he is not.
[26] The government published a Legislative Background to the Bill at https://www.justice.gc.ca/eng/rp-pr/csj-csj/jsp-sjp/c75/p3.html. They observed that preliminary inquiries, prior to Bill C-75, were associated with only about 3% of all completed cases in Canadian criminal courts. Nevertheless, restricting the availability of preliminary hearings to offences liable to a maximum sentence of 14 years would, they said, greatly reduce the number of preliminary hearings, thereby freeing up court time and resources in provincial courts.
[27] A number of House Debate Commentary transcripts filed by Mr. Arthur demonstrate that the government’s principal expressed concern in restricting preliminary hearings was the reduction of delays, particularly in light of the Supreme Court’s comments in Jordan. By way of example, the Bill’s sponsor, then-Justice Minister Jody Wilson-Raybould, said the following during the second reading of the Bill in Parliament:
…In the Jordan decision, the Supreme Court of Canada asked Parliament to take a fresh look at current processes and reconsider the value of preliminary inquiries in light of the broad disclosure rules that exist today. The Standing Senate Committee on Legal and Constitutional Affairs also recommended that they be restricted or eliminated. The proposed measures would reduce the number of preliminary inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.
III.
THE ISSUES
[28] The issues raised by Mr. Arthur’s application can be organized into two groups. The first group arise from Mr. Arthur’s assertion that the Jordan Timelines should be revisited. The second arise from Mr. Arthur’s assertion that this case has taken markedly longer than reasonably required, even if the appropriate Jordan ceiling is 30 months.
A. THE JORDAN TIMELINES
[29] Mr. Arthur urges the court to reconsider the Jordan Timelines in light of the impact of Bill C-75. He submits that no rational distinction can be made between a trial without a preliminary hearing in the OCJ and a trial without a preliminary hearing in the SCJ. Both should be subject to the same delay ceiling, specifically 18 months.
[30] There are three reasons why I reject Mr. Arthur’s position. First, I am, in my view, bound to follow and apply the Jordan Timelines by virtue of the vertical convention of precedent. Second, similar arguments made in prior cases have been universally rejected. Third, the reduction in preliminary hearings resulting from Bill C-75 is not, in any event, a compelling reason to revisit the ceilings established in Jordan.
(i) The Binding Nature of Vertical Precedent
[31] The Canadian justice system reflects a hierarchical pyramid. At the top of the pyramid is the Supreme Court. Immediately below the Supreme Court are the Provincial Courts of Appeal. Below them are the Superior and Provincial trial courts.
[32] The vertical convention of precedent holds that lower courts in the pyramid must abide by the decisions of courts above them. The doctrine of precedent, expressed by the Latin phrase stare decisis, is foundational to the common law. It provides certainty in the law, albeit at the expense of some degree of flexibility.
[33] That said, the Supreme Court has recognized that stare decisis should not be interpreted as “a straight jacket that condemns the law to stasis.” See Carter v. Canada (Attorney General), 2015 SCC 5, at para. 44.
[34] Our law recognizes two situations where trial courts may reconsider settled rulings of higher courts:
(a) Where a new legal issue is raised; and,
(b) Where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.
See Carter, para. 44 and Canada (Attorney General) v. Bedford, 2013 SCC 72 at para 42.
[35] A trial court is not, however, justified in reconsidering a binding vertical precedent on the anticipation that it is likely to be overruled. See Canada v. Craig, 2012 SCC 43. See also Debra L. Parkes, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135, at paras. 17-24.
[36] Neither party to this application advanced arguments about what, if any, jurisdiction this court has to “revisit” the Jordan Timelines. In the result, I have no indication as to which of the two recognized exceptions to the application of vertical precedent Mr. Arthur relies upon. That said, neither exception aids Mr. Arthur. I will consider them in turn.
[37] The first exception applies where a new legal issue is raised. Arguments not raised in Jordan may, for instance, be capable of constituting a new legal issue. A new legal issue may also arise where there have been significant developments in the jurisprudence.
[38] Mr. Arthur did not direct the court’s attention to any new legal issues or developments in the jurisprudence, save for the introduction of Bill C-75.
[39] As I perceive it, Mr. Arthur’s application is based on a legislated change in procedure for some cases tried in this court. In my view, the procedural amendments introduced by Bill C-75 do not constitute a new legal issue, but rather a change in the factual landscape. They result in a greater number of cases being tried in this court without first having had a preliminary hearing. That is a factual issue.
[40] I accept that a determination of which 11(b) ceiling applies to one-step cases tried in this court is a legal issue, but it is certainly not a new one.
[41] In R. v. Bulhosen, 2019 ONCA 600, Strathy C.J.O. observed that the Supreme Court rejected in R. v. Cody, as above, a submission by the Ontario Criminal Lawyers’ Association that invited the court to “carve out an exception to the 30-month ceiling for cases that have proceeded in a superior court without a preliminary hearing.” In other words, the Supreme Court has already considered and rejected a proposal to distinguish between one-step and two-step proceedings for cases tried in this court.
[42] I conclude that the first exception does not apply.
[43] The second exception applies where the applicant introduces evidence that “fundamentally shifts the parameters of the debate.” The manner in which Mr. Arthur’s application was framed tends, in my view, to indicate that he relies on this exception.
[44] The Supreme Court has instructed that lower courts are not entitled to ignore binding precedent. The exception to “revisit” precedent is a narrow one, not easily met. The evidence submitted on the application must establish that there has been a “fundamental shift” in the way that courts understand the legal issue.
[45] Bedford and Carter establish that such a fundamental shift may be demonstrated by a “significant evolution in the foundational legislative and social facts”. See R. v. Comeau, 2018 SCC 15 at para. 31.
[46] Bill C-75 will undoubtedly increase the number of cases proceeding to trial in this court without having had a preliminary hearing. But that fact, on its own, adds very little to the s. 11(b) debate.
[47] One of the stated goals of Bill C-75 is to alleviate pressures on provincial courts by significantly reducing the number of preliminary hearings they have to run. In theory, this reduction will reduce systemic delays in provincial courts, enabling cases to proceed more quickly through them to their conclusion by way of a trial in either provincial or superior court.
[48] A significant reduction in systemic delay in provincial courts may be a valid reason to revisit the Jordan Timelines. The Supreme Court indeed recognized, at para. 57 of Jordan, that the ceilings they established were based on current realities and may have to be revisited in the future.
[49] Presently, however, there is a dearth of empirical evidence about what, if any, impact Bill C-75 has had on delays in provincial courts. Less than a year after the Bill came into effect, the Covid-19 pandemic hit, wreaking havoc on court dockets. It may be some considerable time before any impact of Bill C-75 is seen. Absent such evidence, Mr. Arthur is unable to establish a significant evolution in legislative or social facts capable of fundamentally shifting the s. 11(b) debate.
[50] I conclude that the second exception does not apply.
[51] In the result, I am not persuaded that I have the jurisdiction to revisit the Jordan Timelines. Mr. Arthur has not met the threshold to reconsider as set out in Bedford. I am bound by the vertical convention of precedent to follow and apply the existing ceilings.
[52] My conclusion in this respect is sufficient to dispose of Mr. Arthur’s request that the Jordan Timelines be revisited. That said, I will briefly address the other two reasons why I do not accept that request.
(ii) The Jurisprudence Supports the 30-Month Ceiling
[53] Counsel did not refer me to any reported decisions addressing the impact, if any, that Bill C-75 has had on the Jordan Timelines. To my knowledge, there aren’t any.
[54] There are, however, a number of reported decisions involving arguments by accused persons that an 18-month ceiling should apply to cases where the Crown proceeds to trial in this court by direct indictment. In other words, where a case proceeds to trial in this court without having had a preliminary hearing in the OCJ. Those arguments have been universally rejected. See R. v. Millard, 2017 ONSC 4030 at paras. 56-61; R. v. Nyznik, 2017 ONSC 69 at paras. 22-35; R. v. Maone, 2017 ONSC 3537 at paras. 11-22; and R. v. Bulhosen, as above, at paras. 67-71.
[55] In Bulhosen, the Court of Appeal firmly rejected any suggestion that the Jordan Timelines make any distinction between one-step and two-step trials. As Chief Justice Strathy observed, at para. 69, “Nowhere in Jordan did the court speak of a one-step or two-step proceeding or suggest that different rules apply when an indictment is preferred in a superior court.”
[56] As I noted above, the Chief Justice further observed that the Supreme Court rejected in R. v. Cody, a submission by the Ontario Criminal Lawyers’ Association that an 18-month ceiling should be established for cases proceeding to trial in superior courts without having first had a preliminary hearing.
[57] There is no reasonable basis on which to distinguish the reasoning in Bulhosen from the circumstances of this case. The Crown may not have preferred a direct indictment against Mr. Arthur, but the core issue is the same: should an 18-month ceiling apply to one-step cases proceeding to trial in this court?
[58] I acknowledge that Bulhosen, Millard, Nyznik and Maone were all decided before Bill C-75 came into force. None squarely address the question here – whether Bill C-75 warrants a revisiting of the Jordan Timelines. That said, each of those decisions supports the conclusion that the absence of a preliminary hearing has no bearing on the applicability of the 30-month ceiling for cases tried in this court.
[59] In my view, the jurisprudence is clear: the sole determinative factor in terms of the applicable ceiling is which court the trial is proceeding in. Mr. Arthur’s trial is proceeding in this court. The ceiling is therefore 30 months.
(iii) A Reconsideration of the Ceilings is Not Justified
[60] Even if I were unencumbered by the vertical convention of precedent and prior decisions interpreting the Jordan Timelines as they relate to one-step proceedings in this court, I would still conclude that the Jordan ceilings do not need to be revisited in light of Bill C-75.
[61] I reach this conclusion because, as I have alluded to, the 30-month ceiling established for cases in this court is not dependent on a preliminary hearing having been requested and conducted.
[62] In Morin, the Supreme Court made a distinction between one-step and two-step proceedings. The court in Jordan rejected that distinction and opted for simple, straightforward ceilings distinguished solely by which court the trial was proceeding in.
[63] The principal drivers of the fixed ceilings were simplicity and predictability. The Jordan ceilings were designed to be simple in their application and predictable in their effect. They were intended to be easy to apply across the board. Litigants know up front what timelines are considered constitutionally compliant based on which court the case is proceeding in.
[64] Undoubtedly, the Supreme Court could have opted for a framework that paid closer attention to the unique factors that impact on time requirements in each specific case. Factors such as: whether the accused is charged with one or multiple offences; whether there are co-accused; the number of witnesses anticipated; whether there are experts; whether a preliminary hearing is requested; and whether the preliminary hearing is likely to be short or lengthy.
[65] But the court eschewed such an approach when they rejected the Morin framework. Instead, they opted for simple and predictable ceilings based on whether the case was being tried in the provincial court or the superior court.
[66] I understand the suggestion that it is illogical to distinguish between a one-step case that proceeds to trial before a provincial court judge and the same one-step case that proceeds to trial before a superior court judge or judge and jury. I do not accept it.
[67] All criminal cases in this province begin in the provincial court. The vast majority of them stay in that court until they are finally concluded by resolution or trial. Even for cases that eventually proceed to trial in this court, a great deal of useful activity takes place in the provincial court. As Code J. observed in Millard, as above, at para. 58:
Bail hearings are held, the accused has time to retain counsel, initial Crown disclosure is made and then reviewed by the defence, ongoing Crown disclosure is substantially completed and defence requests for further disclosure are made, counsel interview witnesses and preserve evidence that may be needed at trial, counsel take instructions from the client and negotiate resolutions, judicial pre-trials are held where the case against certain accused can be finally resolved and where admissions that shorten and simplify the case can be negotiated.
[68] Even without a preliminary hearing, it takes a significant amount of time for cases to work their way through the provincial court. The reason for this was explained by Sopinka J. in Morin where he observed, at para. 56, that provincial courts dispose of the vast majority of criminal cases. It takes longer, he said, to dispose of cases in those courts because of the volume demands placed on them.
[69] For cases that then proceed to trial in the superior court, additional time is inevitably required. Further pre-trial conferencing is required and trial time scheduled, all subject to the caseload demands on this court.
[70] All of that is to say, the timelines make sense even if no preliminary hearing is conducted in the OCJ.
[71] I am also satisfied that the Supreme Court contemplated the possible time savings that might follow if preliminary hearings were eliminated or restricted by Parliament. The majority in Jordan called upon Parliament to revisit the need for preliminary hearings given expanded disclosure requirements. Parliament appears to have taken them up on the suggestion when they introduced Bill C-75. In other words, Bill C-75 was responsive to the court’s comments in Jordan.
[72] It seems unlikely to me that the Supreme Court failed to consider what might happen if Parliament actually did eliminate or restrict preliminary hearings. In my view, the established ceilings accounted for that possibility.
[73] At any rate, if the majority in Jordan had wanted to establish a variable ceiling in this court based on whether a preliminary hearing was held, they could have done so. Indeed, they chose to establish such a variable ceiling for cases tried in the provincial court. At para. 46 of Jordan, the majority set the ceiling at 30 months for cases proceeding to trial in this court or cases going to trial in the provincial court after a preliminary hearing. In light of the clear language used by the majority, it is fair to proceed on the basis that the decision not to establish a variable ceiling for cases going to trial in this court was a considered one.
[74] In the result, I am not persuaded that there is any need to revisit the Jordan Timelines as a result of the impact Bill C-75 has had on criminal procedure.
[75] I will move on to examine Mr. Arthur’s alternative argument.
B. THE ASSERTION OF UNREASONABLE DELAY
[76] Mr. Arthur submits that even if the 30-month ceiling applies, a stay is still called for because this case has taken markedly too long to reach trial. Because Mr. Arthur’s trial date is scheduled to be completed within the Jordan Timelines, he bears an onus to establish: (1) that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
[77] I am prepared to accept that Mr. Arthur has taken meaningful steps that demonstrate a sustained effort to expedite these proceedings. But his application fails on the second branch of the test. According to my calculations, his case will have taken 22 months to get to trial after deducting delays attributable to Covid-related, exceptional circumstances. In my view, 22 months is not markedly too long for this case to get to trial.
[78] I will take a moment to set out the chronology of the case. I will consider what, if any, periods of delay were waived and what periods are properly characterized as defence delay or exceptional circumstances. I will then assess whether the net delay is markedly longer than what this case reasonably required.
The Chronology
[79] Mr. Arthur’s position necessarily engages the court in a Morin-esque examination of the delays to date and the reasons for them. The following overview is taken from Mr. Arthur’s Factum and the transcripts he filed with respect to the chronology of court appearances:
Date
Description
Comments
October 27, 2019
Mr. Arthur was arrested and charged with one count of sexual assault.
A co-accused, Mr. Josiah, was charged with the same offence, though I am not clear on the date of his arrest. The two accused were initially charged on separate informations.
December 18, 2019
Mr. Arthur made his first appearance in the OCJ. He was traversed to January 8, 2020 pending disclosure.
Mr. Josiah made his second appearance on this date. He had counsel retained and was awaiting disclosure. The Crown elected on this occasion to proceed summarily against Mr. Josiah.
January 8, 2020
Mr. Arthur made his second appearance in the OCJ. The Crown made an election to proceed by indictment. Adjourned to February 5, 2020 to permit Mr. Arthur an opportunity to retain counsel.
Mr. Arthur continued to be without counsel. He advised the court that he had not received disclosure. The Crown advised that it was available. Mr. Arthur indicated that he wished to retain counsel.
February 5, 2020
Mr. Arthur made his third appearance in the OCJ. He attended with a letter from his counsel, Ms. Read, who asked for an adjournment of six weeks so that she could review the disclosure and schedule a Crown pre-trial. Adjourned to February 26, 2020.
Crown counsel expressed concern about the length of the adjournment and asked whether Mr. Arthur would waive 11b. In the absence of a clear waiver, the Crown objected to the adjournment of that length.
February 26, 2020
Mr. Arthur made his fourth appearance in the OCJ. His counsel requested additional disclosure. Adjourned to March 25, 2020.
March 12, 2020
A Crown Pre-Trial was scheduled, but cancelled by the defence pending receipt of outstanding disclosure.
March 16, 2020
The normal operations of all Ontario courts were impacted by the Covid-19 pandemic. The OCJ adopted a reduced operational schedule beginning on this date.
Mr. Arthur has had no in-person appearances since this date.
March 23, 2020
Mr. Arthur’s counsel received additional disclosure through the online portal.
Two significant pieces of disclosure remained outstanding: the video statement of the complainant and the results of DNA testing with respect to semen recovered on swabs taken from the complainant.
March 25, 2020
Mr. Arthur was to appear in the OCJ on this date, but the courthouse was closed. His case proceeded by videoconference, in his absence, and was put over on a bench warrant with discretion to June 3, 2020 as per a Notice to the Profession dated March 15, 2020.
April 9, 2020
A Crown Pre-Trial proceeded.
Defence counsel advised the Crown about the outstanding DNA evidence. The Crown indicated that the police were proceeding to obtain DNA warrants.
June 3, 2020
Adjourned to August 12, 2020.
Automatic adjournment per Notice to the Profession
August 12, 2020
Adjourned to October 21, 2020.
Again, an automatic adjournment per Notice to the Profession.
September 24, 2020
Defence counsel wrote to the Crown seeking disclosure of the DNA results or the DNA warrant results.
Counsel asserted that the DNA results were required for the purpose of conducting a meaningful judicial pre-trial.
September 25, 2020
A judicial pre-trial (“JPT”) was scheduled for November 6, 2020. According to a local protocol the date was requested and granted over email.
October 21, 2020
This was the return date for cases subject to Covid-driven adjournments on March 25, June 3 and August 12, 2020. All counsel appeared by videoconference. It was noted that the Crown had not made an election. Crown counsel indicated that she was not prepared to make an election on this date, saying it was best left to the JPT.
Recall that the Crown had in fact elected to proceed by indictment against Mr. Arthur on January 8, 2020.
November 6, 2020
A JPT was held in the OCJ. The Crown confirmed they were proceeding by indictment on a joint information. The Court asked the Crown to “clean up” the multiple informations and to follow up on outstanding disclosure issues.
The JPT included both Mr. Arthur and his co-accused, Mr. Josiah. Mr. Josiah indicated that he wished to elect a trial before a judge and jury in the SCJ. Mr. Arthur indicated that he preferred a trial in the OCJ. Mr. Arthur asked the Crown to consider a severance. The Crown declined.
November 18, 2020
This was a “to be spoken to date” in the OCJ. Mr. Arthur was put over to December 7, 2020 to match up with Mr. Josiah’s matter, in anticipation of a committal to the SCJ and the scheduling of a JPT in the SCJ.
There was an expectation noted on the record that the Crown would be re-laying a joint information on the next date. In fact, the joint information had been re-laid at some point prior to June 3, 2020.
December 7, 2020
This appears to have been a wasted appearance due to confusion about the status of the joint information. The matter was put over to January 11, 2021 to sort out the information and to schedule a JPT in the SCJ.
January 11, 2021
This appears to be another wasted appearance. No joint information was before the court. Indeed, even the individual informations for Mr. Arthur and Mr. Josiah appear not to have been in court. The court noted that they were trying to deal with a list of over 1500 lines on this date. Adjourned to January 25, 2021 with the intention of scheduling a further OCJ JPT in the interim.
Crown counsel indicated that a new information had been re-laid and provided the number, 20-38103282. Mr. Josiah’s counsel was not present in court, frustrating the taking of the accused’s elections, though both accused appear to have filed written elections by this date. Mr. Arthur’s counsel expressed frustration with the delays in getting the elections taken and in getting disclosure of the DNA results.
January 25, 2021
Adjourned to March 1, 2021 for the purpose of obtaining a date for a JPT in the SCJ.
This appears to have been another unnecessary delay. No one appeared clear about how to obtain a JPT date in the SCJ. Mr. Arthur’s counsel put on record again that they were still awaiting the DNA disclosure.
February 5, 2021
Following communications with the SCJ trial co-ordinator, the joint information was brought forward to this date. A committal was made to the SCJ and a JPT date set for March 25, 2021.
The Crown formally elected to proceed by indictment on the joint information. The March 1, 2021 date was vacated.
February 25, 2021
Ms. Read wrote, again, to Crown counsel seeking disclosure of the DNA results.
To this point, a DNA warrant had not been executed on Mr. Arthur.
March 25, 2021
JPT conducted in the SCJ. A trial date was fixed for March 18, 2022. Adjourned to April 26, 2021 for a continuing JPT.
DNA disclosure remained outstanding.
April 26, 2021
Further JPT conducted in the SCJ. Pre-trial motions scheduled.
May 6, 2021
DNA results received.
[80] I do not have any evidence of the length of the trial as scheduled. I expect it is likely two weeks. If so, it should conclude by about March 25, 2022. Accordingly, the time between Mr. Arthur’s arrest on October 27, 2019 and the anticipated completion of the trial on March 25, 2022 is almost exactly 29 months, one month below the Jordan ceiling.
Waiver
[81] There were no delays that were unequivocally waived by Mr. Arthur.
Defence Delay
[82] The parties disagree about whether any of the delays in the OCJ are properly characterized as defence delay. Mr. Arthur says that none of the time in the chronology of events should be characterized as defence delay. The Crown suggests roughly four-and-a-half months should be.
[83] The Crown submits that the entire period between the judicial pretrial in the OCJ on November 6, 2020 and March 25, 2021 when the first judicial pre-trial was held in this court should be characterized as defence delay.
[84] I understand the Crown’s position to be that, following the November 6, 2020 JPT, both defence counsel were clear about the Crown’s position and what needed to be done to move the case forward. The matter was going to proceed by indictment on a joint information. Mr. Josiah was going to elect a trial by judge and jury in this court. The Crown was not prepared to sever the two accused, meaning that Mr. Arthur was also going to have a trial by judge and jury in the SCJ. In the result, the defendants needed to contact the SCJ trial co-ordinator to obtain a date for a JPT in this court. It was not until February 5, 2021 that a date was obtained for the SCJ JPT and, even then, it was because the Crown asked the court to hold the matter down long enough so that counsel could obtain that date and schedule it on that occasion.
[85] My review of the record does not support the conclusion that Mr. Arthur was to blame for the delay between November 6, 2020 and March 25, 2021. Instead, my review of the transcripts of proceedings on November 18, 2020, December 7, 2020, January 11, 2021, January 25, 2021 and February 5, 2021, reveals a period of confusion on the part of all constituents.
[86] During the OCJ JPT on November 6, 2020, the presiding justice directed the Crown to “clean up” the confusion surrounding the numerous outstanding informations. It is clear that the Crown had, at least by June 3, 2020, re-laid a joint information. Endorsements on that joint information began on June 3, 2020. But there were still individual informations outstanding with respect to both Mr. Josiah and Mr. Arthur. The Crown had elected to proceed summarily against Mr. Josiah but by indictment against Mr. Arthur on those individual informations. It had not made a formal election on the joint information. The confusion about the outstanding informations is not Mr. Arthur’s fault.
[87] Following the November 6, 2020 JPT, Mr. Josiah and Mr. Arthur were scheduled to next appear on separate dates. On November 18, 2020 Mr. Arthur was put over to December 7, 2020 to match up with Mr. Josiah. In other words, it essentially took a month following the November 6, 2020 JPT to marry up the two accused. That is not the fault of Mr. Arthur.
[88] On December 7, 2020 Mr. Josiah and his counsel did not appear. There was confusion on the part of the court as to what information was before the court. It appeared to be only the individual information against Mr. Arthur. Mr. Arthur’s counsel asked if the Crown had a suggestion about when the matter should be put over to have a JPT scheduled in the SCJ. The Crown suggested a five week adjournment and Mr. Arthur’s counsel agreed. It was certainly not Mr. Arthur’s fault that Mr. Josiah and his counsel did not appear, that there was ongoing confusion about the informations and that no one appeared to be clear about how to get a date for the JPT in the SCJ. The adjournment period was suggested by the Crown.
[89] On January 11, 2021 Ms. Read appeared for Mr. Arthur and expressed concern to the court about the ongoing confusion relating to the outstanding informations. The court was unable to clear up that confusion because, in fact, there were no informations before the court on this appearance. Ms. Read expressed concern about delay. She said she wanted to make Mr. Arthur’s election to be tried in the OCJ on this appearance, but she was aware that Mr. Josiah intended to elect to proceed in the SCJ. Unfortunately, once again, Mr. Josiah’s lawyer was not in court at the time the matter was called. Ms. Read also mentioned ongoing delay in receiving the DNA disclosure. The matter was put over to January 25, 2021 in the hope that a further JPT could be scheduled in the interim to clear up some of the confusion.
[90] The delay between January 11 and 25, 2020 does not fall at Mr. Arthur’s feet. Even if his counsel had contacted the SCJ trial co-ordinator in advance of the January 25, 2021 date, the SCJ pre-trial could not have been set. Elections could not have been taken in the absence of the joint information. Moreover, Mr. Josiah was not present to agree to any dates.
[91] On January 25, 2021, all of the stars aligned. Counsel to both Mr. Arthur and Mr. Josiah appeared in court at the same time. They confirmed their elections and agreed the matter was going to proceed to trial in the SCJ. They just needed a date for a JPT in the SCJ. Crown counsel indicated that she was content with any date suggested by the defence. But it was unclear to all parties, including defence, Crown and the court, how exactly SCJ pre-trials were being scheduled. In the result, it was agreed by all parties that the matter would go over to March 1, 2021 to allow counsel time to sort out dates through the trial co-ordinators’ office. Again, I fail to see how this delay falls at the feet of the defence. They were present and ready to set dates. No one knew how to do it.
[92] The confusion surrounding the process for setting JPT dates may seem odd, but it has to be kept in mind that the court’s processes were in flux given the ongoing impact of the Covid-19 pandemic. All of the participants were attending court from various locations, all remote from the courthouse. Some court staff, including the trial co-ordinators, were also working remotely. Pre-Covid, counsel could have simply walked down the hall to the trial co-ordinators’ office and sorted out a date. That option was no longer available.
[93] Perhaps defence counsel could have done more in advance of January 25, 2021 to figure out how JPT dates were obtained in the SCJ. But to be fair, Jordan was clear that all stakeholders have an interest in reducing delays. All have a role to play in doing so. A better effort could have been made by all constituents to obtain dates for the SCJ pre-trial. In my view it would be unfair to characterize the delay between November 6, 2020 and January 25, 2021 as defence delay.
[94] As things transpired, the matter was brought forward to February 5, 2021 to fix the date in the SCJ. In the meantime, Mr. Arthur’s counsel had been in touch with the SCJ trial co-ordinators’ office and had figured out the process for setting dates in this court. A JPT date was set for March 25, 2021. Again, this period is not properly characterized as defence delay. If anything, Mr. Arthur’s counsel was pro-active in contacting the trial co-ordinators’ office and having the matter brought forward to February 5, 2021. I have no evidence to suggest that there were JPT dates in the SCJ prior to March 25, 2021. I am proceeding, therefore, on the basis that counsel took the first date offered to them. Doing so cannot possibly amount to defence delay.
[95] In all the circumstances, I find the Crown’s assertion of defence delay to be unfounded. I find no defence delay.
Exceptional Circumstances
[96] The Covid-19 pandemic has had a profound impact on the operations of this court and of the OCJ. Everyone knows that. Nevertheless, whether the pandemic bears any responsibility for any of the delay in this case is a live issue.
[97] The Crown argues that certain delays in the chronology are properly characterized as “Covid” delays. Mr. Arthur agrees that the Covid pandemic is an exceptional circumstance, but denies that it had a direct role to play in any of the delay here.
[98] The Crown elected not to file any evidence on this application, apart from copies of Covid-related Notices to the Profession published by Ontario courts. In the circumstances, I lack any direct evidence about how the pandemic impacted on the operations of the Crown’s office; how it affected the local criminal filing office and the management of informations; what, if any, impact it had on the availability of pre-trial dates in the OCJ; how it affected the scheduling of JPTs in the SCJ; whether, and to what extent, it resulted in delays in the scheduling of trials in the SCJ; and how it may have impacted on the ability of the Barrie Police Service to obtain and execute DNA warrants.
[99] That said, the Notices to the Profession published by the OCJ make it apparent that at the outset of the pandemic, all non-urgent, out-of-custody accused persons were adjourned, en masse, on three separate occasions. For those, like Mr. Arthur, who were scheduled to appear on March 25, 2020, automatic adjournment dates were June 3, 2020, followed by August 12, 2020 and finally October 21, 2020.
[100] On October 21, 2020 Mr. Arthur’s case was adjourned for the purpose of a JPT, which was conducted on November 6, 2020.
[101] The Crown asserts that the period from March 25, 2020 to October 21, 2020 is properly characterized as delay due to an exceptional circumstance. As such, it ought not to be included in the calculation of the 30-month ceiling. I agree.
[102] Recall that exceptional circumstances are defined at para. 69 of Jordan, as follows:
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.
[103] The Covid-19 pandemic and its impact on the operations of the court is undoubtedly an exceptional circumstance. It is outside of the Crown’s control. The Crown could not reasonably remediate the effects of the pandemic, particularly in light of decisions made by court’s administration to reduce operations and to automatically adjourn matters, as they did in Mr. Arthur’s case.
[104] In my view, the period between March 25, 2020 and October 21, 2020 was clearly the direct result of emergency health measures taken by the OCJ to combat the spread of the Covid-19 virus. It must be accounted for as a delay due to exceptional circumstances. It accounts for roughly 7 months of delay.
[105] Whether Covid-19 had any part to play in any further delays beyond October 21, 2020 is not apparent to me on the current evidentiary record.
Analysis
[106] Mr. Arthur was charged with sexual assault in mid-October 2019, some five months before the Covid-19 pandemic took hold in this province and forced a suspension of this court’s operations and a substantial reduction in the cases being heard in the OCJ. Some 19 months later, and with over 80% of this province’s population doubly vaccinated, this court continues to be significantly hampered in the volume of criminal trials it can do – particularly ones requiring a jury. Backlogs have inevitably developed as the court’s already heavy caseload has been exacerbated by the pandemic. New cases are being added to the system at a quicker pace than existing cases can be cleared. Nevertheless, even without accounting for Covid-related delays, Mr. Arthur’s trial has been scheduled to occur within the Jordan Timelines.
[107] The majority in Jordan instructed that stays under s. 11(b) would be rare for cases tried below the established ceilings and only in clear cases. This is not one of those rare cases where a stay is clearly warranted.
[108] Taking into account the 7 months I characterize as delay due to extraordinary circumstances, Mr. Arthur’s trial should be completed at the 22 month mark – well below the Jordan ceiling.
[109] Mr. Arthur pointed to two factors that he says contributed significantly to delays in this case:
(a) The Crown’s refusal to sever him from the co-accused, Mr. Josiah. He says that he was prepared to have the case against him tried in the OCJ and, had the Crown agreed to a severance, he could have had a trial much sooner than the date presently scheduled in the SCJ; and,
(b) The delayed disclosure of the DNA evidence.
[110] I do not accept that either of the foregoing issues impacts the delay analysis in a significant way.
The Refusal to Sever
[111] While I have no direct evidence that Mr. Arthur could have obtained an earlier trial date if the Crown agreed to sever him from the joint information, I am prepared to accept, for the purposes of this application, that it is likely that earlier trial dates were available in the OCJ.
[112] The fact is, however, the Crown did not agree to sever him. They exercised their discretion to proceed against both accused on a joint information. The Crown’s position was not an arbitrary one. They want to avoid a multiplicity of proceedings and they do not want the complainant to have to testify twice. From my vantage point, their position appears reasonable.
[113] If Mr. Arthur wanted a severance, he could have applied for one. He chose not to.
[114] I am far from persuaded that the Crown ought to have agreed to a severance in order to protect Mr. Arthur’s s. 11(b) right. As I noted, the net delay in this case is 22 months. That is hardly territory where the salutary effects of a severance would be likely to outweigh the deleterious ones.
The Delayed DNA Warrant
[115] For edification purposes, both accused are alleged to have sexually assaulted the complainant on the same evening. Though I have no evidence on the point, I understand that a swab taken from the complainant was tested at the Centre of Forensic Sciences and found to contain the DNA of at least one unknown male. It is of some significance to each accused to know if the DNA matches him or the other accused, or neither.
[116] From what I understand, neither accused was prepared to voluntarily provide a DNA sample. I certainly respect their right to take that position. I think it a little incongruous, however, in light of that position, to complain about how long the police were taking to obtain a DNA warrant.
[117] At any rate, Mr. Arthur complains that the Barrie Police Service did not act promptly to obtain and execute a DNA warrant. I agree. They were very slow in doing so. I have no evidence to explain why there was such a lengthy delay.
[118] That said, it does not appear to me that the timing of the DNA disclosure informs any of the delays in this case. Defence counsel understandably complained regularly about the delayed disclosure, but nevertheless the matter moved forward through both the OCJ and the SCJ, notwithstanding the absence of that disclosure.
[119] The delayed disclosure argument is, in my view, a red herring.
CONCLUSIONS
[120] In summary, I find the applicable Jordan ceiling is 30 months. Mr. Arthur’s trial date is scheduled to be completed under that ceiling and, in the result, is presumptively s. 11(b) compliant. I further find that Mr. Arthur has failed to demonstrate that his case has taken markedly longer than its reasonable time requirements have demanded. In fact, in my view, it is not even a close call.
[121] In the result, the application is dismissed.
C. Boswell J.
Released: October 27, 2021