COURT FILE NO.: CR.19-0019

DATE: 2021-11-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

-and-

JUSTIN DUMPFREY Applicant

COUNSEL: A. Lepchuk, for the Crown Attorney J. Erickson, for the Applicant

HEARD: November 22, 2021

RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24 OF THE CHARTER

A.J. GOODMAN, J.

1This is an application brought by the applicant for a stay of proceedings by virtue of breach of s. 11(b) and pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”).

2The applicant, Justine Dumpfrey, (“Dumpfrey”) argues that his constitutional rights have been infringed due to the inordinate delay in proceeding with this trial. The trial is set to commence in one week, on November 29, 2021.

3At the conclusion of the hearing, I dismissed the s.11(b) application with written reasons to follow. These are my reasons.

Background and Issue:

4The applicant was charged on January 18, 2018. The trial is slated to commence on November 29, 2021 and lasting until December 17, 2021.

5During the course of the hearing, the parties agreed on the period of delay attributable to the defence or otherwise waived by the defence from the date of the applicant’s charge to May 3, 2021. While the Crown argues that there is one additional period of delay attributable to the defence prior to May 3, it is conceded by the parties that for the purposes of this application, the period from January 18, 2018 to May 3, 2021 is 25 months of actionable delay.

6It is the timeframe from May 3, 2021 to the end of the trial that is at issue in this application.

Positions of the Parties:

7The applicant submits that his s. 11(b) rights under the Jordan framework have been infringed and that they are entitled to an appropriate remedy.

8The parties agree that the total delay from arrest and charge to the completion of trial is 47 months. The applicant submits that when eliminating the period of time attributable to the defence, including s. 11(b) waivers, the unavailability of defence counsel from November 8 to 29, 2021, and the one month period from May 3 to June 7, 2021 conceded to be an exceptional circumstance, the net delay in this case is 30½ months, just falling outside of the presumptive 30-month ceiling.

9The Crown disagrees with some of the applicant’s calculations of total delay in this case. The Crown argues that a discrete exceptional event includes the COVID-19 pandemic and the cessation of jury trials in Hamilton. The entire period of delay is 25 months, well short of the presumptive ceiling. The Crown says that even if this court accepts the defence calculations, one additional month must also be deducted for the defence unavailability in June 2021. Taking the defence calculations at its highest, the net delay is just over 29 months.

10The Crown submits that the applicant has not met his burden of demonstrating a violation of his rights under s. 11(b) of the Charter because the net delay is under the 30 month presumptive threshold.

Legal Principles:

11Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights to security of the person, liberty and a fair trial. The right to a speedy trial guaranteed by s. 11(b) of the Charter reflects the principle that “[t]imely justice is one of the hallmarks of a free and democratic society”: R. v. Jordan, 2016 SCC 7, [2016] 1 S.C.R. 631, at para. 1. Section 11(b) is also designed to protect the interests of society in the expeditious resolution of criminal proceedings.

12In the seminal case of Jordan, the Supreme Court of Canada reworked the entire rubric of delay and effectively overruled the previous analysis and procedure in R .v Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

13In Jordan, the Supreme Court of Canada reformulated its s. 11(b) framework. It noted at para. 38, that the pre-existing framework had become “too unpredictable, too confusing, and too complex,” and had “become a burden on already over-burdened trial courts.” According to the Supreme Court, a pervasive “culture of complacency” fostered delay throughout the system: at para. 4.

14The Supreme Court of Canada set a presumptive ceiling of 30 months for cases proceeding in the superior courts.

15In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next step is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.

16If the net delay then exceeds the ceilings outlined in Jordan (18 months for the provincial court and 30 months for superior court cases), it is presumptively unreasonable.

17Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two components: “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69.

18Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.

19If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable.

20If the Crown is not able to rebut the presumption, the charges against the accused will be stayed: Jordan, at paras. 37-39.

21On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. To show that delay under the presumptive ceiling is unreasonable, the defence must demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.

ANALYSIS:

22A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance of a stay of proceedings in criminal matters, appellate courts remind trial judges to ensure that such a remedy is used only as a last resort: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at p. 466. It is a right that is not to be taken lightly. A stay of proceedings has substantial ramifications not only for the applicants, but to the justice system as a whole when the state is found to have breached an accused’s fundamental Charter rights.

23As mentioned, the Court of Appeal in Coulter, at paras. 34-40, set out the following steps which the court is required to analyze for s. 11(b) motions:

a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;

b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;

c) Compare the Net Delay to the presumptive ceiling;

d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;

e) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);

f) 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;

g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

i. Calculating the Total Delay Period

24The starting point for the Jordan analysis is calculating the Total Delay: the time between the charge laid on January 18, 2018 and the anticipated end of trial currently set for December 17, 2021. In this case, the total length of delay is 47 months.

25The next step is to subtract defence delay. It is now well-established that every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution as the evidence in the cases against them grows stale over time. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole”: Jordan, at para. 21.

26Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction subtracted from the total delay. Because the Charter governs state conduct, the conduct of the accused person or defence counsel that delays the trial does not count against the presumptive ceilings: Jordan, at paras. 21, 49, 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 1, 32-33.

27Defence caused delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.” In situations where the Crown and the court are ready to proceed, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”.

28Time needed for trial preparation will be classified as inherent delay within the Jordan framework. Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” Such determinations are “highly discretionary”: Jordan, at paras. 60-66; Cody, at paras. 28-31.

29In determining whether a step taken by the defence is legitimate requires considerations of both substance and procedure. The decision to take a step as well as the manner in which it is conducted may attract scrutiny. Even where there is some merit, “a defence action may be deemed not legitimate […] if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay”: Cody, at paras. 31-32.

30In this way, defence inaction or omission may also render defence action illegitimate and excluded from the total delay. Such a finding need not amount to professional or ethical misconduct. Instead, the assessment of legitimacy “takes its meaning from the cultural change demanded in Jordan,” which requires that all justice system participants advance an accused’s right to a trial within a reasonable time: Cody at paras. 30-36.

31The relevant time period runs from “the charge to the actual or anticipated end of trial.” This period encompasses the date charges were laid until the actual or anticipated date of the verdict: Gopie, at para. 79.

Defence Waiver and Defence Conduct Amounting to Delay:

32I need not conduct a detailed analysis. It is conceded by the parties that with the defence waivers, or delays attributable to the defence, the period of time from the January 18, 2018 charge to May 3, 2021 is 25 months.

33Thus, as mentioned, the remaining period is from May 3, 2021 to the anticipated end of the trial. Notionally, this period is above the 30 month threshold.

ii. Exceptional Circumstances:

34In instances where, after deducting defence-caused delay and waiver, the time period remains above the 30 month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “lie outside the Crown’s control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.” The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Jordan, at paras. 69-71; Cody, at paras. 44-46, 48, 54; and St. Amand, 2017 ONCA 913, at paras. 81-82.

35Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling: Jordan, at para. 51.

36When determining how to allocate delay during trial, courts will distinguish a reasonable period of delay to deal with a discrete event, which may be subtracted from the net delay, from systemic or institutional delay which causes further delay. Delay caused by a shortage of judicial resources is not deductible from total delay.

37As discussed, discrete events are reasonably unforeseen or avoidable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. It will be for the trial judge, relying on his/her good sense and experience, to determine whether a particular event is properly determined to be exceptional: Jordan, at paras. 73-4; Cody, at paras. 46, 48, 58-59, 163-165.

Exceptional Circumstances – COVID-19 is a Discrete Event

38Finally, and without any reservation, the current COVID-19 pandemic is the quintessential discrete exceptional circumstance as defined in Jordan. It could not be foreseen or avoided, and nothing could be done to reasonably remedy, or mitigate the ongoing court delays arising out of this crisis.

39I take judicial notice of the pandemic and its ongoing effects on the justice system, as well as the Government’s ongoing response, pursuant to ss. 17 and 22(1) of the Canada Evidence Act (R.S.C., 1985, c. C-5), ss 17, 22(1).

40One of the obvious impacts of the pandemic is the Superior Court of Justice’s ongoing inability to schedule jury trials. Pursuant to the Superior Court’s Notice to the Profession, Litigants, Accused, Media and Members of the Public (June 25, 2020), “[j]ury matters will continue to be deferred until at least September 2020.” The Central South Region’s Notice to the Profession Re: Civil, Family, Criminal Expansion (June 26, 2020) reiterated this estimation, adding: “A reminder to counsel that there are currently no jury trials being conducted until September 2020 at the earliest.” On July 6, 2020, the courts reopened. Unfortunately, that was short-lived and a second suspension of jury trials started in late Fall 2020. Despite the best efforts of judicial participants and the trial coordinators, the cessation of jury matters in Central South Region remained in effect until medical authorities and the Chief Justice granted permission to re-commence those trials. In Hamilton, that only occurred in August 2021.

41The applicant acknowledges that the pandemic is an exceptional circumstance. However, the applicant does not attribute the entire period of delay to this issue. Instead, while acknowledging that the delay from the anticipated conclusion of the matter until the resumption of court in August 2021 can be fairly categorized as an exceptional circumstance, he take the position that there is only one month attributable to this period, namely from May 3, to June 7, 2021, not due to exceptional circumstances as dates were being offered by the trial coordinator. I reject this submission and find that there is no basis in fact or law to support this abbreviated timeframe.

42The applicant elected to have his trial by a Superior Court judge sitting with a jury. That remains his constitutional right. However, the COVID-19 pandemic precluded the parties from setting realistic trial dates. While attempts were made to set dates, it is beyond dispute that this situation was completely unforeseeable and still cannot not be remedied by either of the parties.

43For the purpose of this application, I reiterate my holding on this particular issue as outlined in R. v. Belzil, 2021 ONSC 781. Further, I adopt Nakatsuru J.’s detailed discussion and sage analysis on this very issue in the case of R. v. Simmons, 2020 ONSC 7209 at paras. 67 - 76.

44Accordingly, it is beyond question that the pandemic creates an unfortunate situation whereby trials are delayed. During the time that jury trials are suspended, any delay falls under a discrete event. Ontario courts have determined that he whole of the delay to the next scheduled trial date is to be deducted where that period can be said to have been entirely caused by the exceptional circumstance of the pandemic: R. v. Drummond, 2020 ONSC 5495, R. v. Gutierrez, 2020 ONSC 6810, R. v. Khattra, 2020 ONSC 7894, R. v. Ali, 2021 ONSC 1230.

45I note that much time in this hearing was spent with the parties arguing about the setting of dates offered by the trial coordinator for either June 7 or July 5, 2021. The Crown attorney was available in June, but defence was not.

46Nonetheless, this point is moot. While the trial coordinator did attempt to offer dates, it was clearly tentative and subject to the whether the court would be in a position to offer a jury trial in an environment with safe protocols. Again, unfortunately, the pandemic prohibited jury trials from commencing or being heard in Central South Region until August 2021.

47At the May 21, 2021, Assignment Court, the defence accepted the trial date of November 29, 2021 and the accused was remanded directly to the trial date in November. No other comments were placed on the record.

48I am not persuaded that the defence was available at the outset of the commencement of jury trials in Hamilton in August or September 2021. In fact, counsel accepted the date of November 29, 2021 for the commencement of trial, not being available three weeks earlier. In any event, even if I add the period from August 2021 to November 2021, the period is still less than the presumptive Jordan threshold

49In my opinion, with the pandemic and the cessation of jury trials until August 2021, this entire period falls under a discrete exceptional circumstance. In summary, I agree entirely with the Crown’s submissions.

Summary of Delay in the Present Case

50Total Delay: 47 months. The period of delay from January 18, 2018 to May 3, 2021 results in a net 25 months of delay. From May 3, 2021 to the commencement of the trial, November 29, 2021, subtract discrete events of six and a half months for the COVID-19 pandemic and the cessation of jury trials in Hamilton. Add one month for the completion of the trial and the final result is 26 months, which is below the 30-month threshold in Jordan.

Delay Below the Presumptive Ceiling – The Applicant has not met his Onus

51Where the Jordan threshold is not exceeded, stays of proceeding will be “rare” and “limited to clear cases.” A stay will only be imposed if the accused establishes that the defence took “meaningful steps that demonstrate a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. “Meaningful steps” means more than token efforts, such as simply putting on the record that the defence had earlier dates. The defence must be proactive and must cooperate with the Crown and the Court to avoid delays and put the Crown on timely notice when issues arise that may delay the trial: Jordan at paras. 48, 82-91.

52Despite the very able submissions of counsel, I accept the evidence adduced by the Crown and note that the record is principally silent on positive measures undertaken by the applicant to expedite the proceedings in this court to the pace he now demands. The defence did not press this issue in argument and has not met his onus to persuade me otherwise.

CONCLUSION:

53Having regard to the overall s. 11(b) and Jordan analysis, I conclude that there was a total delay of 47 months. The parties agree that the period of actionable delay from the date of the charge to May 3, 2021 is 25 months, when taking into account s. 11(b) waivers and defence caused delay.

54The period from May 3, 2021 to the commencement of the trial on November 29, 2021 is captured by a discrete exceptional circumstance due to the pandemic and the cessation of jury trials. At the May 21, 2021 Assignment Court, the date accepted by counsel for trial was November 29, 2021. The remaining net delay of 26 months does not exceed the Jordan guidelines for a jury trial in the Superior Court and is presumptively reasonable.

55The applicant’s rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have not been breached. The application is dismissed.