ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty, for the Appellant
Appellant
- and -
MANDEEP KAUR
D. Lent, for the Respondent
Respondent
HEARD: September 24, 2021 via video conference
REASONS FOR JUDGMENT
[On appeal from the stay of proceedings of
Justice Cleghorn dated February 23, 2021]
André J.
1The Crown appeals the decision of Cleghorn J. staying drinking and driving charges against Mandeep Kaur on the ground that her rights under s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) had been infringed. Crown counsel raises three grounds of appeal, namely a) non-compliance with the applicable rules related to pre-trial motions; b) the trial judge’s failure to consider exceptional circumstances that would have brought the overall delay period within the acceptable range; and c) the trial judge’s failure to treat the Covid-19 Pandemic as an exceptional circumstance in analysing whether Ms. Kaur’s s. 11(b) Charter rights had been infringed. The Respondent’s counsel submits that the trial judge did not err in staying the charges.
BACKGROUND FACTS
2The Respondent was arrested on July 25, 2019. The Crown alleged that she was driving on the wrong side of the road in the middle of the night when she caused a serious head-on collision with another vehicle. Her blood alcohol concentration was greater than 180 milligrams of alcohol in 100 millilitres of blood, which is well over twice the legal limit.
3The information was sworn on August 7, 2019, and the accused received disclosure on August 29, 2019. On that date, the matter was adjourned to September 26, 2019, so that a Crown pre-trial (CPT) could be held in the interim. On August 30, 2019, defence counsel’s office sent the Crown an email requesting a CPT. This email was missed, as there was no response from the Crown. Defence counsel’s office did not follow up before the next court date.
4On September 26, 2019, defence counsel’s agent told the court that he had not received a response from the Crown. The matter was adjourned until October 24, 2019. On the latter day, defence counsel’s office sent another email to the Crown asking to set a date to hold a CPT. The Crown responded and a CPT was held a week and a half later, on October 7, 2019.
5At the CPT on October 7, 2019, the Crown advised defence counsel that this case would need a judicial pre-trial (JPT) due to the number of witnesses. Rather than setting a JPT right away, defence counsel waited two and a half weeks until the next court date to do so. On October 24, 2019, a JPT was set for December 17, 2019. After three days that are conceded to be defence delay, trial dates of February 22-24, 2021, were set on December 20, 2019.
6When the trial date was set, defence counsel did not indicate that s. 11(b) of the Charter was an issue. On the trial verification sheet, defence counsel stated that there would be no motions or applications. There is no evidence that defence counsel approached the Crown to advise that the trial dates may cause a s. 11(b) issue, or ask if earlier trial dates were available. Instead, defence counsel simply brought a s. 11(b) application on the trial date, despite the Rules requiring such applications to be heard at least 60 days in advance of trial.
7On February 22, 2021, the Crown asked for the s. 11(b) application to be summarily dismissed for non-compliance with the Rules. In addition, the Crown asked for the application to be deferred until the end of trial to avoid losing the scheduled trial dates and to avoid inconveniencing the witnesses who were waiting to testify.
8The trial judge denied the Crown’s requests. She did not permit the Crown to make submissions concerning the Respondent’s failure to comply with the Rules. On February 23, 2021, the trial judge granted the application and stayed the charges against the Respondent.
TRIAL JUDGE’S DECISION
Non-Compliance with the Rules
9As noted above, the trial judge decided to hear the s. 11(b) application before the trial. She held that any prejudice to the Crown could be cured by adjourning the trial. The Crown demurred by insisting that given the attendance of his witnesses, the trial should proceed without any delay, after dismissal of the s. 11(b) application for non-compliance with the Rules. The trial judge indicated that she was not prepared to summarily dismiss the application and proceeded to hear it.
Defence Delay in October 2019
10The Crown submitted to the trial judge that the two-week delay between October 7, 2019 and October 24, 2019, should be attributable to the defence because of their delay in setting a date for a JPT. In rejecting this submission, the trial judge noted at p. 2 of her Ruling on February 23, 2021, that:
The Crown argues that a further 17 days should be deducted as defence delay, the period between October 7th 2019 until October 24, 2019. To provide some context for that argument, some sense of the procedural history of the case during that period is necessary. There was a court appearance on September 26 2019, during which it was noted that the defence had been unable to arrange a Crown pre-trial before that date. Accordingly, the defence requested an adjournment to October 24th 2019 to allow a pre-trial with the Crown to take place in the interim. Ultimately, the defence was able to schedule a pre-trial with the Crown on October 7th 2019. Following that, when the case was before the court on October 24th 2019, a judicial pre-trial was scheduled for December 17th 2019. That was the first date offered by the court.
Mr. Quilty argues that defence counsel had an obligation, once the Crown pre-trial had occurred on October 7th 2019, to move the case forward, and that by failing to do anything to expedite the case between that date and the next scheduled court appearance on October 24th 2019, the defence bears responsibility for the 17 days that passed between those two dates. With respect, this argument misunderstands “defence delay” as defined in Jordan: see Jordan, at paragraph 61 through 65. As the Supreme Court noted in Jordan, the Court “accounted for procedural requirements in setting the ceiling”: see Jordan at paragraph 65. Therefore, time necessary to schedule a Crown pre-trial, or to schedule a judicial pre-trial, is not subject to further deductions as defence delay.
Accordingly, the period between October 7th 2019 and October 24th 2019 does not qualify as defence delay and is not deductible.
Exceptional Circumstances
11The trial judge noted at p. 3 and 4 of her reasons, that according to the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 47, if the presumptive delay period is exceeded, the Crown can only rebut the presumption of unreasonableness by demonstrating the presence of exceptional circumstances. She then concluded on page 4 that:
The Crown has failed to establish the existence of any exceptional circumstances in this routine drinking and driving case taking more than 18 months to get to trial.
ANALYSIS
12This appeal raises the following issues:
What is the applicable standard of review?
Did the trial judge err in failing to summarily dismiss the s. 11(b) application?
Did the trial judge err in failing to treat the delay in having a Crown pre-trial a discrete event?
Did the trial judge err by failing to find that the delay period from October 7, 2019 to October 24, 2019, was defence delay which had to be subtracted from the overall delay period?
Did the trial judge err in law by failing to regard court delays caused by the Covid-19 Pandemic as an exceptional circumstance that justified the case taking more than 18 months to get to trial?
A. Standard of Review
13In R. v. Pauls¸ 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R v. Yusuf, 2021 SCC 2, 453 D.L.R. (4th) 189, at para. 2, the Court of Appeal stated that a trial judge’s factual findings should be afforded deference. However, the characterization of various delay periods and the determination of whether an overall delay period was unreasonable, is reviewable on a standard of correctness: see also R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused [2018] S.C.C.A. No. 325; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 73; R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.
B. Did the trial judge err in failing to summarily dismiss the s. 11(b) Application?
14The Appellant submits that the trial judge erred in failing to dismiss the s. 11(b) application. He submits in his factum that:
Without ever hearing submissions from the Crown, the trial judge stated that she would not summarily dismiss the application. She held that any prejudice to the Crown could be cured by hearing the application immediately and adjourning the trial dates. While recognizing that the witnesses would be inconvenienced, the trial judge stated that this was “unfortunate but that’s how our system works.” The next day she granted the application and stayed the charges.
15Rule 2.4 of the Criminal Rules of the Ontario Court of Justice, SI/2012-30, states that s. 11(b) applications should be heard at least 60 days prior to the trial, unless the court orders otherwise.
16Rule 3.1(2) of the Practice Rules of the Ontario Court of Justice gives a trial judge the discretion of waiving the time requirements in Rule 2.4 for the bringing of a s. 11(b) application.
17Undoubtedly, the Respondent’s counsel did not comply with the Rules when he filed his s. 11(b) application some 38 days before the trial date. The fact that the Crown had ample time to prepare and file responding materials and to anticipate that the trial judge would not automatically dismiss the application due to non-compliance does not alter this fact. First, it was inappropriate for the trial judge to have denied Crown counsel an opportunity to make submissions regarding whether she should dismiss the application. Second, the trial judge, at the very minimum, should have sought an explanation for defence counsel’s failure to comply with the Rules. These Rules are not window dressing adorning the portals of the criminal justice system. They are meant to avoid the very scenario which the trial judge suggested to the Crown: an eleventh hour adjournment of the trial and the concomitant waste of valuable trial time. Indeed, the Court of Appeal in R. v. Oliver, 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92, at para. 29, stated that counsel are expected to comply with time schedules set by the court: noted in R. v. Tash, 2008 CanLII 1541 (ON SC), 166 C.R.R. (2d) 358, para. 15. The same court noted in R. v. Loveman (1992), 1992 CanLII 2830 (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.), at p. 125, that: “A trial judge must control the trial proceedings so as to ensure fairness to all concerned and preserve the integrity of the trial process”. Finally, in R. v. Darrach, 2000 SCC 40, [2000] 2 S.C.R. 443, at p. 476, the Supreme Court noted that “the right to make full answer and defence does not include the right to defend by ambush”.
18The trial judge’s decision also ran counter to the post-Jordan dispensation that all parties in the criminal justice system have an important part to play in ensuring that Rules are adhered to in order to ensure that court time is used as efficiently as possible. To properly guard against the cavalier erosion of the Criminal Rules of the Ontario Court of Justice, it may be necessary that applications should be denied absent compelling reasons such as, for example, where an accused is unrepresented or where defence counsel belatedly found out that the Crown has not met its disclosure obligations in a timely manner.
19Despite these concerns, the refusal to summarily dismiss the s. 11(b) application for lack of compliance does not, as the Appellant readily concedes, justify overturning the trial judge’s decision. The trial judge’s decision not to dismiss the application is an exercise of judicial discretion which is ordinarily deserving of deference on review (Tash, at para. 15) and reversed “only if exercised on an erroneous principle or if it resulted in a miscarriage of justice”: Oliver, at para. 28.
C. Did the trial judge err in failing to treat the delay in having a Crown pre-trial a discrete event?
The Law
20In Jordan, at para. 71, the court stated that where the total delay minus defence delay exceeds the presumptive ceiling, the Crown may show that the delay is reasonable by establishing exceptional circumstances which fall into two categories, namely 1) discrete events and ii) particularly complex cases.
The Facts
21On August 30, 2019, the defence sent the Crown an email to schedule a CPT. The Crown did not respond. Defence counsel repeated the request on September 26, 2019. Only then did the Crown respond and a CPT was conducted in early October 2019.
Crown’s Position
22The Crown submits that its failure to respond to the first request should have been considered a “discrete exceptional circumstance”, or “inadvertent oversight”. The defence could have easily had a CPT between August 30, 2019 and September 26, 2019, given that a resolution Crown is available in the Brampton Courthouse every working day. Had defence counsel availed himself of this resource prior to September 26, 2019, a JPT could have been set on September 26, 2019, rather than on October 24, 2019. Consequently, this delay period should be deducted from the overall period of delay.
Trial Judge’s Decision
23At p. 62 of the transcript dated February 22, 2021, the trial judge appeared to rely on Monahan J.’s decision in R. v. Greenidge, 2021 ONCJ 57, where the Crown inadvertently failed to respond to an email requesting a CPT. The court held that the failure was on account of human error and was a discrete event which should have been deducted.
24It is important to reproduce the relevant portion of Monahan J.’s decision since it was contrary to Cleghorn J.’s decision not to find any similar delay a discrete event which should be deducted from the overall delay period. Monahan J. noted at paras. 45 to 48 of his decision:
45In this case, there was a human error when the Crown's administrative assistant inadvertently deleted Defence counsel's email of September 12, 2019 seeking a Crown pre-trial date. Defence counsel fixed the situation for the Crown when she followed up on October 2nd, 2019. Human error can be a discrete event/exceptional circumstance: see the R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at paragraph 58.
46The delay caused by this human error was 20 days. This is the time between the email of September 12 from defence counsel offering the dates and the time of October 2 when defence counsel followed up and the problem ultimately was remedied. I am not critical of defence counsel but when a person does not respond to an email after a week or so, there is a reasonable prospect that the email has been overlooked or some error has been made. Obviously, the email should not have been deleted, but defence counsel should have followed up earlier on the point.
47There is nothing to suggest that the error here was part of a systemic issue. A new process has now been put in place for scheduling Crown pre trials. The delay here was not particularly long and I take that into account in my determination of this issue. The error should not have happened, but human error and mistakes do occur. No one is perfect and we need to allow some latitude when human errors are made.
48In the circumstances of this case, I am prepared to deduct 20 days as an exceptional circumstance/discrete event associated with the deleted email. It is not enough to bring this case under the presumptive ceiling.
Analysis
25While defence counsel submits that the trial judge was correct in concluding that no exceptional circumstances existed, it is clear that, at the very minimum, the trial judge, given her reliance on Greenidge, should have deducted the delay period between August 30, 2019 and September 26, 2019.
26In response to the Crown’s submission that a CPT was readily available on any given working day in the Brampton Courthouse, counsel for the Respondent submits that it was impractical for every defence counsel to line up outside a courtroom for a CPT. That may be so. But for a defence counsel intent on doing what is necessary to ensure that his or her client’s section 11(b) rights are protected, it is a necessary step prior to setting a trial date as soon as is reasonably possible. In my view, counsel have to avail themselves of institutional resources implemented to reduce systemic delay in setting a matter down for trial, particularly in a jurisdiction that has been plagued by delay issues for decades.
27For these reasons, the trial judge should have deducted the delay period between August 30, 2019 and September 26, 2019.
D. Did the trial judge err by failing to find that the delay period from October 7, 2019 to October 24, 2019, was defence delay which had to be subtracted from the overall delay period?
The Law
28Prior to analyzing the trial judge’s decision on the issue, it is necessary to state the Jordan framework in analyzing s. 11(b) of the Charter. This framework was stated in Pauls between paras. 19 to 23:
19For cases proceeding in the provincial courts, Jordan establishes a ceiling of 18 months beyond which delay is presumed unreasonable. However, to assess whether the presumptive ceiling has been exceeded it is first necessary to deduct defence delay from the total delay. Defence delay can take two forms: i) delay waived by the defence; and ii) delay caused solely by the conduct of the defence.
20Where the total delay minus defence delay exceeds the presumptive ceiling, the Crown may still show the delay is reasonable by establishing exceptional circumstances. Exceptional circumstances have two components: i) they are reasonably unforeseen or unavoidable; and ii) the Crown cannot reasonably remedy the ensuing delay once exceptional circumstances arise.
21In general, exceptional circumstances fall under two categories: i) discrete events; and ii) particularly complex cases. Where discrete events give rise to unavoidable delay (i.e., delay that the Crown or the system could not reasonably have mitigated), that delay must be deducted to determine whether the presumptive ceiling has been exceeded.
22Where the remaining delay exceeds the presumptive ceiling, the delay may still be reasonable if the case was particularly complex. A particularly complex case is one where the nature of the evidence or the issues “require an inordinate amount of trial or preparation time such that the delay is justified”: Jordan, at para. 77.
23Where the remaining delay falls below the presumptive ceiling, an accused may still show it is unreasonable by demonstrating i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and ii) the case took markedly longer than it reasonably should have.
Analysis
29The trial judge followed the Jordan framework by first assessing the overall period of delay and then subtracting defence delay. She found that the overall delay was 18 months and 17 days. She then deducted what she found to have been 3 days of defence delay, leaving an overall period of delay of 18 months and 14 days, which she concluded exceeded the Jordan limit. The trial judge disagreed with the Crown’s contention that the 17 day delay period between October 7 and October 24, 2019 constituted defence delay, which would have brought the overall period of delay below the Jordan ceiling. The trial judge relied on Jordan, at para. 65, for the proposition that the court in that case “accounted for procedural requirements in setting the ceiling.” She then concluded that the “time necessary to schedule a Crown pre-trial, or to schedule a judicial pre-trial, is not subject to further deductions as defence delay.”
30In Jordan, the Supreme Court of Canada noted at para. 65 that:
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. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
31In my view, this passage cannot be taken to mean that defence counsel should fail to promptly take the necessary steps to move a matter forward. Neither does it entitle counsel to cherry-pick which measures instituted in a jurisdiction to follow in order to move a matter forward.
32I disagree with the trial judge’s characterization of this delay period for the following reasons. The pre-Jordan jurisprudence treated the time required to set a JPT as part of the inherent requirements of a case and therefore neutral: See for example, R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 34; R. v. Emanuel, 2012 ONSC 1132, 255 C.R.R. (2d) 180, at para. 15 and R. v. Rutherford, 2012 ONSC 2969, at para. 42. Even if Jordan maintained fidelity to this position, the court nevertheless recognized that trial judges are obliged to “gauge the legitimacy of defence actions”: at para. 65.
33In my view, the appropriate question that the trial judge should have asked is whether the delay between October 7, 2019 and October 24, 2019 was either delay waived by the defence or delay “caused solely by the defence”.
34If the trial judge is correct that the time necessary to schedule a JPT is not subject to further deductions as defence delay, then defence counsel can delay as long as he or she wishes to set a JPT and then rely on this delay to argue that his or her client’s s. 11(b) rights have been infringed. Such a scenario could not have been contemplated by the court in Jordan. It could result in delay attributed to the defence not being a factor in assessing whether the Jordan ceiling has been exceeded. Furthermore, such an interpretation of “defence delay” would run counter to the court’s statement in Jordan that the court, Crown and defence all have to “work in concert to achieve speedier trials”: See Jordan, at para. 116. Additionally, the trial judge’s position that the time necessary to schedule a JPT is not subject to further deductions as defence delay is contrary to the Court of Appeal decision in R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, at paras. 186-189.
E. Did the trial judge err in law by failing to regard the Covid-19 Pandemic an exceptional circumstance which justified any delay over the Jordan ceiling?
The Law
35In Jordan, at para. 69, the Supreme Court of Canada noted that:
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.
36In R. v. Khattra, 2020 ONSC 7894, at paras. 61-62, Woollcombe J. noted that:
61There can be no question that the global pandemic has had, and will continue to have, far reaching impacts on the administration of justice in Ontario. Indeed, I cannot imagine that when the Supreme Court of Canada crafted the Jordan framework, it contemplated the dramatic effect that a global pandemic and consequent lockdowns, shutdowns of the courts and suspension of jury selection and trials would have on the right to be tried within a reasonable time. While the Jordan framework is the analytic tool that must be used to assess this application, I do so knowing that it was created to redress what was perceived as a culture of complacency towards delay, not to impose a straight-jacket on courts struggling to do justice in the face of the widespread, unforeseeable consequences to the administration of justice of a global health pandemic.
62It is reasonable to take judicial notice that in Brampton, one of the busiest jurisdictions in the country, the unprecedented closure of the courts and suspension of jury selection for months over the course of 2020 and into 2021, has and will have a dramatic effect on the scheduling and completion of criminal cases. In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209, at para 63:
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 far-reaching 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. 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.
Appellant’s Position
37The Appellant submits that the current pandemic is an exceptional circumstance because it was unavoidable, and the Crown could not do anything to remedy the delay once it arose. He submits that the proper approach must be to realize that the Jordan ceiling cannot be strictly applied for the near future and relies on R. v. Khan, 2021 ONCJ 195, at paras. 11-12, for that proposition.
Respondent’s Position
38The Respondent insists that Covid-19 has no relevance in this matter and is a red herring in this case. The trial was set in December 2019 long before the onset of the pandemic, and the pandemic was not a factor in the date set for the trial. He submits that the Appellant expressed no concerns about the date set, and did not seek to take any steps to obtain an earlier trial date. To that extent, the trial judge did not err by failing to consider the pandemic as an exceptional circumstance that justified a delay that exceed the Jordan ceiling.
Application of the Law to the Facts
39There is no doubt that the pandemic created an existential crisis in the justice system that fundamentally altered the manner in which the court’s business is conducted. The spectre of closed or retrofitted courtrooms, zoom hearings, sombre accounts of cases of infections in court buildings, and proactive steps to reduce the risk of infection have collectively haunted the judicial landscape since March 2020. Additionally, the Ontario Court of Justice shut down on March 16, 2020, reopened in a limited capacity on July 6, 2020, and resumed full capacity in November. Thus, although the trial date in this case was set prior to the onset of the pandemic, the deleterious effects of the pandemic would have rendered any attempt to obtain an earlier trial date a futile exercise.
40That said, Jordan requires that it is only where the discrete exceptional event caused the period of delay that the delay must be subtracted from the total period of delay “for the purpose of determining whether the ceiling has been exceeded”: para. 75. The court in R. v. Schardt, 2021 ONSC 3143, at para. 68, similarly noted that:
[I]t is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling.
41In my view, the Covid-19 pandemic, if considered a discrete event, did not cause the delay in this case. To that extent, the trial judge did not err in failing to consider the pandemic as an exceptional circumstance that has relaxed the Jordan ceiling.
CONCLUSION
42In my view, the trial judge erred in law in concluding that the delay in having a CPT and in setting a JPT were not attributable to the defence. When these delay periods, which amount to over three weeks, are subtracted from the overall delay period, the applicable delay period is below the Jordan ceiling and is reasonable in the circumstances. To that extent, the trial judge’s decision to stay the proceedings is set aside and a new trial is ordered.
43The matter is remanded to December 9, 2021, at 9:00 a.m. in Courtroom 104 of the Ontario Court of Justice; TBST.
44Ms. Kaur is remanded out of custody accordingly.
André J.
Released: November 15, 2021
COURT FILE NO.: SCA(P) 734/21
DATE: 2021 11 15
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
MANDEEP KAUR
Respondent
REASONS FOR JUDGMENT
André J.
Released: November 15, 2021
