ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-19-70000325-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDY METATAWABIN
Counsel
Ari Linds, for the Crown
Chris Nagel, for Andy Metatawabin
HEARD: September 29, 2021
R.F. GOLDSTEIN J.
[1] On June 5, 2018 James Tykoliz was recovering from surgery at the Michael Garron Hospital. A fellow patient came into his room. This patient took a butter knife and told Tykoliz “prepare to die”. The patient then stabbed Tykoliz in the right eye and fled from the hospital. The two patients did not know each other.
[2] The police identified Andy Metatawabin as the stabber. On June 12, 2018 the police arrested Mr. Metatawabin. The police charged him with attempted murder, aggravated assault, possession of a dangerous weapon, and uttering threats. Mr. Metatawabin was on bail at the time. The police also charged him with breaching his bail conditions.
[3] Mr. Metatawabin’s trial will be conducted in two phases. The first phase is scheduled to commence on October 18, 2021 and end on October 29, 2021. The second phase will deal with the question of whether he should be found Not Criminally Responsible. That phase is scheduled to commence on December 13, 2021 and December 17, 2021.
[4] The parties agree that the total delay in this case is 1285 days, or 42 months and six days. That time period obviously exceeds the ceiling of 30 months for matters in the Superior Court set by R. v. Jordan, 2016 SCC 27. Mr. Metatawabin’s counsel, Mr. Nagel, argues that there has been an obvious breach of his s. 11(b) right to be tried within a reasonable time. As a result, the charges should be stayed.
[5] I disagree. Had there been no Covid-19 pandemic, Mr. Metatawabin’s bifurcated trial would have commenced on May 11, 2020 and been completed on June 27, 2020. That would have been just over 24 months of delay, which is within the Jordan framework. All the delay between June 27, 2020 and December 17, 2021 is due to the exceptional circumstance of Covid 19. I dismiss the application for the reasons that follow.
BACKGROUND
Chronology: Arrest To First Trial Date
[6] This chronology includes the key dates. I have not included every date.
June 13, 2018
Mr. Metatawabin is taken before a justice of the peace for his first appearance.
June 18, 2018
Mr. Metatawabin is arrested on charges relating to assaults in the Toronto South Detention Centre.
June 20, 2018
Ms. Kelly is retained by Mr. Metatawabin.
July 11, 2018
Crown makes first tranche of disclosure to defence; discussions underway between Crown and defence counsel.
July 13, 2018
Crown pre-trial held.
July 30, 2018
Judicial pre-trial held.
July 31, 2018
Defence informs Crown counsel that there are no fitness concerns and will not seek a Form 48 assessment in relation to fitness.
September 7, 2018
Judicial pre-trial held. Dates for a 5-day preliminary inquiry are set for March 11-15, 2019.
September 26, 2018 to January 31, 2019
A series of further adjournments, judicial pre-trials, and other appearances. Further disclosure made by the Crown.
February 1, 2019
Crown counsel informs the Court and Ms. Kelly, that two witnesses are not available during the preliminary hearing from March 11 to 15. The date of April 25, 2019 is obtained for continuation of the preliminary inquiry.
March 11, 2019
First day of the preliminary inquiry. After the first witness Ms. Kelly concedes that Mr. Metatawabin will be committed for trial based on the evidence of the complainant. The preliminary inquiry continues with three more witnesses that Ms. Kelly wishes to cross-examine.
March 12, 2019
Second day of the preliminary inquiry. The Crown calls five witnesses.
April 25, 2019
Third day of the preliminary inquiry. The Crown calls two witnesses.
May 23, 2019
First appearance in the Superior Court of Justice.
July 29, 2019
Judicial pre-trial held with Justice Quigley. Trial estimate is for a 10-day judge-alone trial followed by a five-day Not Criminal Responsible application. Dates of May 11-27, 2020 and June 22-26 are set for trial. Defence formally re-elects trial by judge-alone.
September 25, 2019 to March 15, 2020
A series of judicial pre-trials is held. There is discussion of a third-party records application. Further disclosure is made by the Crown.
March 11, 2020
The World Health Organization declares a pandemic.
March 15, 2020
Chief Justice Morawetz orders that all criminal matters scheduled between March 17, 2020 and June 2, 2020 due to the Covid-19 pandemic. All criminal matters are adjourned to June 2, 2020. Mr. Metatawabin’s trial dates are vacated.
March 17, 2020
The Government of Ontario declares a state of emergency.
April 6, 2020
Date originally scheduled for an application to obtain records for “Michael Sutherland” (believed to be an alias of Mr. Metatawabin) from Michael Garron Hospital. Hearing is cancelled as a result of the suspension of court operations.
May 5, 2020
Chief Justice Morawetz extends the order dated March 15, 2020. Matters that had been adjourned to June 2, 2020 are adjourned to July 6, 2020. Jury trials remain suspended until at least September, 2020.
May 11, 2020
Anticipated commencement of first trial.
June 26, 2020
Anticipated end of first trial.
December 12, 2020
30 month presumptive Jordan ceiling.
[7] It is apparent from this chronology that the first trial would have been completed about six months prior to the presumptive Jordan ceiling if court operations had not been suspended as a result of the Covid-19 pandemic.
Chronology: First Trial Date To Second Trial Date
[8] Again, the chronology includes the key dates; and I have not include every date:
June 5, 2020
Mr. Metatawabin is tried in the Ontario Court of Justice on charges relating to the assaults in the Toronto South Detention Centre. A judge makes a finding of Not Criminally Responsible.
June, 2020
In an undated letter Ms. Kelly, counsel for Mr. Metatawabin, writes to Crown counsel giving formal notice that she will seek a finding of Not Criminally Responsible. She asks that the Crown consider making an application for an assessment under s. 671.12(3) of the Criminal Code.
June 17, 2020
In a practice direction incorporating his order of June 17, 2020 Chief Justice Morawetz extends the orders dated March 15 and May 5, 2020. Matters adjourned July 6, 2020 are adjourned to September 15, 2020.
July 6, 2020
Some Superior Court operations resume; trials are held by teleconference and to a limited degree in person.
July 25, 2020
Police execute a production order for the records of “Michael Sutherland”.
September 1, 2020
Crown counsel responds to the June 2020 letter. Crown counsel agrees to seek an assessment under s. 671.12(3) of the Criminal Code.
September 14, 2020
New trial dates set for October 18, 2021 for a two-week judge-alone trial followed by a one-week NCR application on December 13, 2021.
December 12, 2020
30 month presumptive Jordan ceiling.
October 18, 2021
Anticipated commencement of second trial.
December 17, 2021
Anticipated end of second trial.
[9] The second trial will be completed about twelve months after the presumptive Jordan ceiling.
ISSUES AND ANALYSIS:
[10] Under s. 11(b) of the Canadian Charter of Rights and Freedoms everyone has the right to be tried within a reasonable time. Under the framework set out in R. v. Jordan, 2016 SCC 27, cases tried in the Superior Court are presumptively unreasonable after 30 months of delay. It will be up to the Crown to show exceptional circumstances. Exceptional circumstances consist of either a discrete event or a particularly complex case. A clear and unequivocal waiver of time by the defence will result in a deduction of that time from the overall calculation. Frivolous and abusive defence tactics will also be deducted from overall delay. Reasonable defence tactics will not: Jordan, paras. 65 and 66.
[11] The Jordan framework was succinctly summarized by Gillese J.A. in R. v. Coulter, 2016 ONCA 704 at paras 34-40:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
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 (Jordan, para. 47. If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
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 (Jordan, para. 75).
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 (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[12] In this case, the total delay is 42 months and six days. Even if I accepted that there has been defence delay of 69 and 45 days (three months and 24 days combined), the total delay would still be well above the presumptive ceiling of 30 months. The delay is, therefore, presumptively unreasonable in the absence of exceptional circumstances. Exceptional circumstances can include either a discrete event or a complex case: Jordan at paras. 69, 77. Since it is obvious that there was an unanticipated discrete event the real question is how to determine its effect.
[13] Although counsel have raised many points (including a clerical error) the only real issue in this case is the effect of the Covid-19 pandemic. Little turns on defence delay, Mr. Metatawabin’s mental health status, or the complexity of the case.
[14] These are the issues to be resolved:
(a) How to characterize the delay from the suspension of court operations on March 15, 2020 to the first trial date of May 11, 2020?
(b) How to characterize the delay from the first trial date of May 11, 2020 to the setting of the second trial date on September 14, 2020?
(c) How to characterize the delay from the setting of the trial date on September 14, 2020 to the anticipated end of the second trial on December 17, 2020?
(d) Was there defence delay that should be deducted from total delay?
(e) Is this a particularly complex case?
(a) How to characterize the delay from the suspension of court operations on March 15, 2020 to the first trial date of May 11, 2020?
[15] Crown counsel argues that the entire time from the order suspending court operations on March 15, 2020 until the projected end of the second trial on December 17, 2021 should be considered as a discrete event. He argues that there are two distinct periods during that time: the first was the suspension from March 15, 2020 to the date that the second trial was set, September 4, 2020. That was an obvious discrete event caused directly by the Covid-19 pandemic.
[16] I respectfully disagree. The period of time from March 15, 2020 to June 26, 2020 is not attributable to the pandemic. That period of time would have counted towards the presumptive Jordan ceiling even if the pandemic had not struck. That was the approach taken by my colleagues Byrne J. in R. v. Gutierrez, 2020 ONSC 6810 at para. 12 and Woollcombe J. in R. v. Khattra, 2020 ONSC 7894 at para. 70. I adopt Woollcombe J.’s comment:
In my view, while the pandemic and suspension of in person operations of the Court was an unusual and exceptional event that began on March 17, 2020, it cannot be said to have had an effect of delaying the applicant’s case until his scheduled trial date of May 11, 2020. The delay up to May 11, 2020 was anticipated when that trial was set and would have led to the trial being completed under the presumptive ceiling. Accordingly, I reject the Crown’s position that all of the delay from March 17, 2020 should be deducted as resulting from the pandemic. I think the time up to May 11, 2020 should be counted in the Jordan delay.
(b) How to characterize the delay from the first trial date of May 11, 2020 to the setting of the second trial date on September 14, 2020?
[17] Defence counsel argues that the only period of delay that should attributed to the pandemic is from May 11, 2020 (when the first trial was to have commenced) to July 6, 2020. On July 6, 2020 the Crown and defence were in a position to set new dates. Thus, the pandemic is only responsible for this short period of time. A trial date could have been set earlier if the Crown had not taken more than two months to make decisions about whether to join the defence in recommending a finding of NCR or seeking a further assessment. Furthermore, there is anecdotal evidence that had the date been set in July 2020 the court could have provided dates in March, 2021. The defence relies on R. v. Robinson, 2021 ONSC 2445 in that respect. In Robinson, the Court was able to provide dates for a six-week jury trial in March 2021.
[18] With respect, I must disagree. As Mr. Nagel himself conceded, this submission is somewhat speculative. I cannot agree that if the parties had somehow raced to the trial coordinator’s door before the parties in Robinson that they might have scooped an earlier trial date. Indeed, in August 2021 Ms. Kelly, Mr. Metatawabin’s trial counsel, asked the trial coordinator if it was possible to determine dates available for a three-week trial as of July 6, 2020. That was when the court started scheduling matters again. The trial coordinator responded that it was impossible to answer the question. There is no doubt that there were multiple cases in the system, all of them important, all of them jockeying for new dates.
[19] As well, new cases continued to come into the system. Not everyone stayed home watching Netflix during the extended lockdowns. Much of the world – front-line workers, nurses, truck drivers, for example – went about its business. So did many criminals. People didn’t stop robbing, assaulting, and killing other people; drug dealers still sold drugs, fraudsters still scammed people, and drunk people still drove cars. The obvious result has been backlogs and scheduling difficulties. The system cannot be expected to give one case priority over all others. As Doherty J.A. famously said: “No 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.” See: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont.C.A.) at para. 27.
[20] I also cannot agree that the Crown could have made an instantaneous decision on the NCR issue. It is in this respect that Mr. Metatawabin’s other legal troubles are relevant. After his arrest on these charges, Mr. Metatawabin was charged with assault causing bodily harm, choking, and uttering a death threat. These events occurred while Mr. Metatawabin was in custody at the Toronto South Detention Centre. The victims were strangers to Mr. Metatawabin. In June 2020, a judge of the Ontario Court of Justice found Mr. Metatawabin Not Criminally Responsible. He was remanded to the jurisdiction of the Ontario Review Board. In August 2020 the Board found that he remained a threat to the safety and security of the public. The Board ordered that he be detained. Mr. Metatawabin has been held at the Waypoint Centre for Mental Health Care ever since.
[21] In June 2020 Ms. Kelly wrote to Crown counsel indicating that she would be seeking a finding of Not Criminally Responsible on the current charges. She asked that the Crown consider making an application for an assessment under s. 671.12(3) of the Criminal Code. On September 1, 2020 Mr. Linds wrote back indicating that the Crown would do so. The Crown did, and I signed the assessment order on consent.
[22] Mr. Nagel argued that the Crown should have been prepared to make a decision two months earlier. NCR had been a possibility from the beginning. It should not have been difficult call. Had the decision been made immediately, then the Crown and defence could have applied for dates in July 2020 and perhaps been accommodated months earlier. Moreover, whether Mr. Metatawabin was detained or not was irrelevant: prejudice is not a component of the Jordan analysis.
[23] I obviously agree with the defence that prejudice is irrelevant under the Jordan framework. That, however, is not the point. The point is that the Crown required time to make that decision. There were materials to review. The Ontario Review Board did not make a detention decision until August 2020. I do not think that two months to make a very serious decision about how to proceed in a case of this nature is unreasonable. Moreover, as I have already pointed out, even if the Crown had made an instantaneous decision, it is entirely speculative that earlier dates could have been obtained from the trial coordinator.
(c) How to characterize the delay from the setting of the trial date on September 14, 2020 to the anticipated end of the second trial on December 17, 2020?
[24] In my view, the correct approach to this period of delay was set out by my colleagues Woollcombe J. and Nakatsuru J. in R. v. Khattra, and R. v. Simmons, 2020 ONSC 7209. I adopt the following from para. 80 of Woollcombe J.’s decision in R. v. Khattra, quoting R. v. Simmons:
In his thoughtful reasons in Simmons, Nakatsuru J. wrestled with the issue of whether delay resulting from the pandemic stopped once the court was rescheduling jury trials or continued until a new trial date was set. He concluded that all of the delay to the new trial was part of the discrete event of the pandemic:
Mr. Simmons submits that I should take the same approach. In other words, the discrete event exceptional circumstance should only be from March 25, 2020 to September 2020. It should end when the courts were again scheduling jury trials.
With great respect, I do not think this is the right approach. In my view, the length of delay attributable to the COVID-19 public health crisis discrete event should be from March 16, 2020 to January 11, 2021. The whole time period to the new trial date should count. I conclude this for several reasons.
First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended…
Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and farreaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. 2020 ONSC 7894 - 23 - Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime
Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses…
[25] Woollcombe J. continued at para. 82 of R. v. Khattra:
I agree with my colleagues that, in principle, in most cases that were adjourned because the pandemic precluded the commencement of jury trials, the entire period of the delay until the new trial is fairly characterized as attributable to the pandemic. This makes sense. It reflects the reality that the administration of justice could not instantly re-start all those many cases that had been delayed on the very first day jury trials resumed. The justice system must acknowledge and take account of the fact that it required, and will in the future require a reasonable time for trials to be re-scheduled, bearing in mind the significant challenges that this poses for both the courts and for counsel.
[26] The weight of authority in this court overwhelmingly follows the approach taken in R. v. Simmons and R. v. Khattra. I will only cite a few cases: R. v. Drummond, 2020 ONSC 5495 at paras. 77-80; R. v. Henry, 2020 ONSC 3303 at para. 22; R. v. Ansari, 2021 ONSC 186 at para. 39; R. v. Smith, 2021 ONSC 3322 at paras. 55-58; R. v. Ali, 2021 ONSC 1230 at paras. 42 and 59.
[27] This is obviously a judge-alone case. Obviously while jury trials were suspended judge-alone cases were heard. I do not think it matters. The weight of authority in the Ontario Court of Justice also follows the approach taken in R. v. Simmons and R. v. Khattra: see R. v. G.R., 2020 ONCJ 578; R. v. Matthew, 2021 ONCJ 60 at para. 121; R. v. D.L., 2021 ONCJ 385 at para. 35; R. v. Olmstead, 2021 ONCJ 327 at para. 37.
[28] I agree with the defence that the Crown had a duty to take meaningful steps to mitigate the delay caused by the pandemic. I disagree that the Crown did not do so. For example, the Crown brought a third-party records application to obtain the records of “Michael Sutherland” from Michael Garron Hospital. That application was to have been heard in April 2020. The hearing was obviously cancelled. The records were sought by both the Crown and the defence. Rather than wait until the courts re-opened the Crown (with the knowledge of defence counsel) applied for a production order.
(d) Was there defence delay?
[29] The Crown argues that there were two periods of defence delay: 69 days from the June 13, 2018 first appearance until the appearance on July 11, 2018 and then from a defence communication on July 31, 2018 until the first judicial pretrial in the Ontario Court of Justice on September 7, 2018. The second period of time was 45 days from March 12 to April 25, 2019. March 12 was the second day of the preliminary inquiry. At that point defence conceded committal but still sought to cross-examine several Crown witnesses.
[30] I disagree that these periods of time should be attributed to the defence. To be fair, Crown counsel did not press this issue strenuously. He obviously recognized that it would not determine the outcome of this application.
[31] As Jordan makes clear, legitimate defence actions cannot be characterized as defence delay. Defence received its first tranche of disclosure on July 11, 2018. The Crown argues that since the defence requested adjournments for that initial month or so it should be characterized as defence delay. At the first appearance duty counsel asked for an adjournment so that Mr. Metatawabin could retain counsel and apply for legal aid. Ms. Kelly appeared subsequent appearances to ask for short adjournments so that she could have her client “in the building”; as well as for possible resolution discussions. The period from July 31, 2018 to September 7, 2018 featured further adjournment requests by the defence. Two things are clear from this period: first, full disclosure had yet to be made; and second, the defence was exploring options, including a guilty plea and a defence of Not Criminally Responsible.
[32] In my view, these were entirely legitimate reasons for adjournments. Mr. Metatawabin faced extremely serious charges. He has serious mental health issues and a finding of NCR could entail a lifetime in the jurisdiction of the Ontario Review Board. Furthermore, Ms. Kelly, who is experienced in these matters, needed to consider Mr. Metatawabin’s fitness to stand trial.
[33] I also do not agree that the decision by the defence to concede committal but seek discovery of Crown witnesses should also be characterized as defence delay. It should not be forgotten that the Crown sought the extra day in April because it had two witnesses were unavailable. The defence could have said nothing at all until the end of the Crown case and conceded committal at that point. In effect, the Crown is arguing that the defence should be penalized because it made a reasonable concession early in the process. If I were to find that this period constituted defence delay it would do nothing to encourage reasonable early concessions.
[34] I do not think there should be a hard and fast rule on this point. There are rare occasions where the decision to prolong a preliminary inquiry by frivolous cross-examination crosses the line from legitimate defence action to defence delay. This is not one of those cases. Focussed cross-examination of critical witnesses at a preliminary inquiry, even where committal is obvious, can be useful. It can make for a more focused Superior Court trial. It can result in guilty pleas. The Crown has not argued that the manner of the cross-examinations was prolix or frivolous. The preliminary inquiry witnesses were very important for the defence. Exploration of the Crown’s case is an entirely legitimate function of a preliminary inquiry. This is a case where the stakes are extremely high for Mr. Metatawabin. In my view, the defence should not be penalized for conceding the obvious while at the same time seeking discovery of important witnesses.
(e) Is this a complex case?
[35] I agree with the defence that this case is not particularly complex. Having case-managed it, I am familiar with the issues. The identity phase of the trial will not be complicated. The NCR phase will obviously be more challenging, but not especially complicated. Both phases will focus on one issue. If the Jordan ceiling had been breached after deducting the extraordinary events of the pandemic, the Crown could not have relied on complexity. It is not, however, necessary for me to make a finding on this issue.
CONCLUSION
[36] There is no doubt that had Mr. Metatawabin’s trial commenced in May 2020, the Jordan presumptive ceiling would not have been breached. There is also no question that the Covid-19 pandemic was a discrete exceptional event that caused his first trial to be delayed. It was clearly an exceptional event that could not have been foreseen, was unavoidable, and the Crown could do nothing to remedy: R. v. Jordan at para. 69.
[37] Accordingly, I find that the entire period from the commencement of the first trial on May 11, 2020 to the anticipated end of the second trial on December 17, 2021 is due to the exceptional circumstance of the pandemic. That period of 19 months and 6 days is to be subtracted from the total delay of 42 months and 6 days. The net delay is, therefore, 23 months, well within the Jordan presumptive ceiling. The application is dismissed.
R.F. Goldstein J.
Released: October 28, 2021
COURT FILE NO.: CR-19-70000325-0000
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDY METATAWABIN
REASONS FOR JUDGMENT
R.F. Goldstein J.