COURT FILE NO.: CR18-0008 DATE: 2022-02-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Jonathan Peltier Accused/Applicant

COUNSEL: Richard Huneault, for the Crown/Respondent Ewan Lyttle, for the Accused/Applicant

HEARD: November 25 & 26, 2021

DECISION ON APPLICATION

K.E. Cullin, J.

Overview of the Application

[1] Mr. Peltier appears before this court charged with Voyeurism, Making Child Pornography and Possession of Child Pornography pursuant to ss. 162(1)(a), 163.1(2) and 163.1(4) of the Criminal Code, R.S.C., 1985, c.C-46. He has elected to have the trial of these charges proceed by judge and jury.

[2] Mr. Peltier has brought a pretrial application alleging that he has been denied his right to a trial within a reasonable period of time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”). Specifically, he alleges:

a. That the net delay in this case exceeds the presumptive 30-month ceiling established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631;

b. That, although the pandemic may be regarded as an exceptional, discrete event, there were periods when jury trials could have been conducted on Manitoulin Island and were not;

c. That, even if the court finds that the case does not exceed the presumptive ceiling, the delay is still unreasonable because:

i. The trial was delayed as the result of the Crown’s prioritization of another matter which was commenced after the applicant’s matter;

ii. The trial could have been conducted at an earlier date but was not as a result of the approach of the Ontario government to identifying alternative jury trial venues during the pandemic; and,

iii. The trial was delayed by the policy of “running lists” used for trial scheduling on Manitoulin Island.

[3] The applicant requests that the charges against him be stayed as a result of these alleged Charter breaches.

[4] The Crown requests that the application be summarily dismissed as it has no reasonable prospect of success. Alternatively, it requests that the application be dismissed on its merits.

[5] The Crown argues that the case does not exceed the presumptive ceiling and that the applicant has not met the onus of demonstrating unreasonable delay. Alternatively, if the case is found to exceed the presumptive ceiling, the Crown submits that the presumption of unreasonable delay is rebutted by the exceptional circumstances created by the pandemic. It argues that all reasonable measures have been undertaken to respond to the general impact of pandemic-related restrictions and to mitigate the specific impact of those restrictions on the applicant.

[6] An oral decision was rendered dismissing the Crown’s request for a summary dismissal at the hearing on November 25, 2021. An oral decision regarding the merits of the application was rendered on February 16, 2022. This written decision represents my fulsome reasons with respect to both decisions.

Summary of Facts and Evidence

Pre-Pandemic – Case Progress and Trial Scheduling

[7] The charges before the court arise from an incident which is alleged to have occurred on August 11, 2017. The Information was sworn on August 14, 2017. The applicant was subsequently arrested and was released on bail on September 22, 2017.

[8] The first appearance before the Ontario Court of Justice took place on October 10, 2017. A judicial pretrial was conducted on November 9, 2017.

[9] On November 28, 2017, the applicant’s first counsel brought a motion to remove himself from the record. The applicant appointed new counsel on the same date.

[10] A second judicial pretrial was conducted on May 4, 2018. The matter was adjourned at scheduled appearances on May 16, 2018 and June 20, 2018 to permit defence counsel to obtain instructions regarding the Preliminary Inquiry. On July 18, 2018, the applicant waived his right to a Preliminary Inquiry and consented to his committal to stand trial by judge and jury in the Ontario Superior Court of Justice.

[11] On August 13, 2018, the matter appeared in assignment court in the Ontario Superior Court of Justice. A judicial pretrial was scheduled and subsequently conducted on September 28, 2018.

[12] On November 13, 2018, the matter appeared in assignment court. A trial was scheduled to take place from October 21 to 25, 2019. The following alternatives were offered but were not scheduled as the defence was unavailable (the Crown and their witnesses were available):

a. A running trial list scheduled from May 8 to 24, 2019. Defence counsel was available during the sitting, but not for jury selection on May 6 and 7; and,

b. September 16 to 17, 2019 for jury selection, followed by trial on September 18 to 21, 23 to 27, and 30, 2019.

[13] On July 4, 2019, the applicant’s second counsel brought a motion to remove herself from the record. The applicant appointed his present counsel, Mr. Lyttle, on the same date.

[14] Also on July 4, 2019, a request was made to adjourn the trial scheduled to commence on October 21, 2019 as Mr. Lyttle was not available. The applicant was present and was asked by the court whether he was consenting to the adjournment and the associated delay of his trial. He confirmed that he was consenting to both.

[15] On August 1, 2019, the matter appeared in assignment court. The Crown noted that the time requested for trial by defence counsel had increased from five days to three weeks. The trial was tentatively scheduled from May 25, 2020 to June 12, 2020; counsel were directed to confirm the dates with the trial co-ordinator or to re-appear at assignment court on September 9, 2019. It was noted that April 14, 2020 to May 1, 2020 had been offered to defence counsel but was not available. During this appearance counsel acting as agent for Mr. Lyttle indicated on the record that the accused was waiving any s. 11(b) arguments for the period between the originally scheduled trial dates and the new trial dates.

[16] The May 25, 2020 trial date was subsequently confirmed with the trial co-ordinator.

Post-Pandemic – Jury Trial Suspensions – Court Orders and Notices

[17] On March 15, 2020, Chief Justice Morawetz ordered the adjournment of all criminal matters scheduled to be conducted between March 17, 2020 and June 1, 2020 as a result of the pandemic. All matters scheduled to be conducted in May 2020 were ordered adjourned to June 4, 2020. This was followed by a further order on May 5, 2020, adjourning all matters scheduled during May 2020 until July 8, 2020.

[18] On April 20, 2020, Chief Justice Morawetz issued a Notice suspending all criminal and civil jury selection and trials until September 2020, at the earliest.

[19] On November 21, 2020, Chief Justice Morawetz issued a Notice suspending jury selection for new jury trials in all areas of the Province except “Green Zones” until at least January 4, 2021. This impacted jury trials on Manitoulin Island which, at that time, was in the “Yellow Zone”.

[20] On December 14, 2020, a further Notice was issued extending the suspension of jury trials until at least January 29, 2021. On January 13, 2021, the suspension was extended to May 3, 2021, at the earliest.

[21] On March 17, 2021, Chief Justice Morawetz issued a Notice indicating that new jury selection and jury trials were anticipated to resume in the Northeast Region on July 5, 2021. On May 12, 2021, an update was issued advising that the court would not be resuming jury trials in June in some centres as originally planned, but that the court may be in a position to resume jury selection and jury trials in July, August, or September subject to the provincial and regional public health situation.

[22] On December 17, 2021, Chief Justice Morawetz issued a Notice suspending new jury selection in any court location until February 7, 2022. On January 19, 2022, that suspension was extended until February 28, 2022.

Post-Pandemic – Case Progress and Trial Scheduling

[23] On March 15, 2020, the applicant’s trial scheduled for May 25, 2020 was adjourned to June 4, 2020 pursuant to the Order of Chief Justice Morawetz. On May 5, 2020, it was further adjourned to July 8, 2020 pursuant to the Order of Justice Morawetz.

[24] On July 6, 2020, the matter was brought forward for a further judicial pretrial which was conducted before Justice Varpio. As a result of that pretrial, the estimated length of trial was reduced from three weeks to ten days. The matter was adjourned to the assignment court scheduled for September 17, 2020.

[25] On September 17, 2020, the matter appeared in assignment court. The court advised that there were, at that time, no jury trials being scheduled in Gore Bay as efforts were ongoing to secure an appropriate facility both on and off of Manitoulin Island. The option of a re-election was canvassed; defence counsel confirmed the applicant’s intention to proceed with a trial by judge and jury. The matter was adjourned to the October 6, 2020 assignment court.

[26] On October 6, 2020, this matter appeared in assignment court. Two issues were addressed namely, venue for trial and scheduling. With respect to scheduling, a jury trial was scheduled from April 19, 2021 to April 30, 2021. Dates in January 2021 were offered, however, defence counsel indicated that he was not available, and further that both he and his client would be commuting from Ottawa and Quebec and had concerns about travelling due to winter road conditions. With respect to venue, there was a discussion about a potential Charter application arising from a proposal to conduct Gore Bay jury trials in Sudbury; defence counsel indicated that he did not have instructions to undertake such an application but that he would likely seek instructions.

[27] On October 15, 2020, the matter appeared in assignment court. There was a lengthy discussion about the proposed Charter application regarding the venue of trial. Defence counsel indicated that he would be participating in the application in the event that it proceeded. All counsel advised that the target dates for the application were November 16, 2020 to November 20, 2020.

[28] On November 9, 2020, the matter appeared in assignment court. A Trial Management Conference was scheduled for March 9, 2021. It was also confirmed that jury trials would be conducted on Manitoulin Island as opposed to Sudbury and that the proposed Charter application would not be proceeding.

[29] On January 25, 2021, the matter appeared in assignment court. The suspension of jury trials until May 3, 2021 ordered by Chief Justice Morawetz on January 13, 2021 and the resulting cancellation of the accused’s trial scheduled for April 19, 2021 were discussed. The matter was adjourned to the assignment court scheduled for February 22, 2021 to discuss scheduling a new trial date.

[30] On February 22, 2021, the matter appeared in assignment court. At that time, it was noted that there was no information available regarding available trial dates or venues. It was noted that a Trial Management Conference scheduled for March 9, 2021 would still proceed. The matter was adjourned to the assignment court scheduled for March 29, 2021.

[31] On March 9, 2021, a Trial Management Conference was conducted before me. I referred the matter to the trial co-ordinator to schedule a further judicial pretrial to canvas issues of jury selection having regard to the Supreme Court’s decision in R. v. Chouhan, 2021 SCC 26 as well as potential s.11(b) issues being raised by the defence.

[32] On March 29, 2021, the matter appeared in assignment court. It was adjourned to the assignment court scheduled for May 17, 2021.

[33] On May 17, 2021, the matter appeared in assignment court. A judicial pretrial was scheduled for June 7, 2021 and the matter was otherwise adjourned to the July 2, 2021 assignment court.

[34] On June 4, 2021, defence counsel confirmed to the Crown by email that the applicant intended to pursue a s. 11(b) application. He conceded that the pandemic was a discrete event but indicated that he intended to scrutinize the adequacy of the government’s response. The judicial pretrial was conducted on June 7, 2021, following which counsel advised that two days would be required for the application.

[35] On July 7, 2021, the matter appeared in assignment court. It was adjourned to the assignment court scheduled for August 9, 2021.

[36] On August 9, 2021, the matter was tentatively scheduled for a jury trial to be conducted from January 17, 2022 until January 28, 2022. It was otherwise adjourned to the assignment court scheduled for September 20, 2021 to set a date for the s.11(b) Charter application and to confirm the trial dates.

[37] On September 20, 2021, the matter appeared in assignment court. The trial dates in January 2022 were confirmed, and it was noted that November 25 & 26, 2021 were being held for the s.11(b) Charter application.

[38] The January 17, 2022 trial was adjourned as a result of Justice Morawetz’s Notice of December 17, 2021. A trial date has since been offered to commence on March 28, 2022, subject to the outcome of this application.

Post-Pandemic – Identifying Alternate Court Facilities

[39] The Gore Bay jury courtroom was determined to be too small to safely conduct jury trials during the pandemic. As a result, the Ministry of the Attorney General (“MAG”) was required to identify a new venue in which to conduct jury trials during the pandemic.

[40] In July 2020, MAG identified possible alternative venues including the Gore Bay Community Hall (the “Hall”) and the Manitoulin Inn and Conference Centre (the “Inn”). In August 2020, an alternative venue was identified in Sudbury, namely Laurentian University.

[41] The option of conducting Gore Bay jury trials in Sudbury was opposed through submissions by several defence counsel at assignment court and through correspondence from the United Chiefs and Councils of Mnidoo Mnising (“UCCMM”), the Wiikwemkoong Unceded Territory (“WUT”), and the Manitoulin Law Association (“MLA”).

[42] On October 21, 2020, in response to the objections and concerns raised, the Northeast Regional Senior Justice confirmed that the court had requested that MAG identify a suitable location on Manitoulin Island to conduct jury trials. The consideration of Sudbury as a venue was thereafter abandoned.

[43] MAG and court officials participated in a tour of the Hall on November 18, 2020 and the Inn on December 10, 2020. The Inn was identified as the preferred venue. A contract was drafted to lease the Inn from December 2020 to September 2021 however its execution was deferred as a result of the suspension of jury trials on December 14, 2020. On February 25, 2021, MAG inquired about a contract to lease the Inn for three jury trial sittings between May 25, 2021 and September 17, 2021. The Inn declined the contract due to the previous deferrals and the expectation that it would have other business during the spring and summer as it was their busy season.

[44] As the Inn was unavailable, the Hall was chosen as the alternative venue, but not before several other alternatives were investigated. Architectural plans for the Hall were provided on May 7, 2021 and modifications adapting the Hall for court use were complete on August 23, 2021. The principal modifications involved the installation of satellite internet service; the sufficiency of internet service throughout Manitoulin Island was identified as a challenge during MAG’s investigations.

[45] It is important to note that no venues on First Nations were explored by MAG, notwithstanding correspondence to the court from the Tribal Chair of the UCCMM, and the Chief of the WUT identifying the availability of facilities. The evidence before me included information regarding the Aundeck Omni Kaning 4 Directions Complex (the “AOK Complex”), located on the Aundeck Omni Kaning First Nation, and the M’Chigeeng Community Complex, located on the M’Chigeeng First Nation. That evidence provided information regarding the physical facilities at those sites; there was no evidence about whether the sites would otherwise have met MAG’s requirements to serve as alternative venues.

Consultations with First Nations

[46] It is undisputed that the First Nations on Manitoulin Island were not directly consulted either about moving jury trials to Sudbury or about alternative venues that they could provide to accommodate jury trials. MAG did consult with its Indigenous Justice Division, but there was no evidence before the court about how those consultations specifically informed decision-making with respect to potential venues on Manitoulin Island.

[47] There was evidence before the court that the First Nations were vulnerable populations during the pandemic. In his correspondence to the Northeast Regional Senior Justice, dated October 20, 2020, the President of the MLA noted the following:

And specific groups on Manitoulin, particularly on First Nations, have serious health challenges with over fifty percent of the population on First Nations suffering from Type I and Type II diabetes with the attendant conditions that develop as a result of diabetes. And it is for that reason that First Nations such as M’Chigeeng, Whitefish River and Wiikwemkoong established check points at the outset of the pandemic to prevent anyone from travelling to their reserve and preventing residents on the reserve from leaving. And it is evident at the present time we are on the cusp of the second wave of the pandemic which, if we listen to the experts, could be much more serious than the original spread of the disease.

[48] The vulnerability of First Nations populations was also confirmed by Dr. Ignatius Fong, the infectious disease expert called as a witness by the applicant. Dr. Fong noted that members of Indigenous communities might be at a higher risk of severe disease and adverse outcomes, at least in part because they are socially disadvantaged.

Overview of the Law – Section 11(b) of the Charter

Presumptive Ceiling and Analytical Framework

[49] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.

[50] The application of s.11(b) was considered by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. In that decision, the court established a 30 month presumptive ceiling for cases proceeding in the Superior Court (para. 46). In discussing the application of the presumptive ceiling, the court noted the following at para. 56:

We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.

[51] An analytical framework to be used in the s.11(b) analysis was established by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras. 34 to 40:

A. The New Framework Summarized

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] 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).

[38] 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).

[39] 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).

[40] 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).

Defence Delay Defined

[52] The court in Jordan defined defence delay as follows (paras. 61 & 63):

[61] Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, per L’Heureux-Dubé J., at p. 1686).

[63] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence 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” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

[53] The court made it clear that defence actions undertaken to respond to charges do not fall within the purview defence delay (paras. 65-66). Preparation time, pretrial applications, and other “legitimate” actions in furtherance of an accused’s defence are not to be considered in calculating defence delay.

Exceptional Circumstances Defined

[54] The court in Jordan also provided guidance with respect to the identification of exceptional circumstances, although it noted that it was impossible to provide an exhaustive list of qualifying situations and that such determinations, “will depend on the trial judge’s good sense and experience” (para. 71). The court indicated at para. 69:

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.

[55] The court in Jordan observed that exceptional circumstances will generally fall within two categories: (1) discrete events; and (2) particularly complex cases (para. 71).

[56] Exceptional circumstances provide the only basis upon which the Crown can discharge its onus in the face of a presumptively unreasonable delay. Neither the seriousness of the charge nor the absence of prejudice can be relied upon to rebut the presumption (Jordan, para. 81).

Defence Onus

[57] In those cases in which the defence bears the burden of establishing unreasonable delay, it must demonstrate: “ (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.” (Jordan, para. 82)

[58] In assessing the efforts of the defence, Jordan noted at para. 84, “Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.” In applying this test, however, the court observed that the defence ought not to be held to a standard of perfection, but rather to a standard of reasonableness (para. 85).

Preliminary Issue – Summary Dismissal

[59] The Crown asked the court to consider a summary dismissal of the application as a preliminary issue. It argued that an application seeking a stay as a result of pandemic-related delays had no reasonable prospect of succeeding.

[60] In support of its argument, the Crown noted the considerable body of case law supporting its position that the pandemic was an exceptional, discrete event. It also highlighted numerous instances of defence delay, particularly the adjournment of the October 21, 2019 trial date which thrust the matter into the pandemic.

[61] The court’s jurisdiction to summarily dismiss an application arises pursuant to r. 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7, which provides:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

[62] The court’s discretion to summarily dismiss applications with no reasonable prospect of success was considered by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659, at para. 38:

In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.

[63] In R. v. Redufe, [2021] O.J. No. 4134, 2021 ONSC 5176, Akhtar J. summarily dismissed a s.11(b) Charter application which sought to review the reasonableness of the court’s pandemic-related shutdowns. In rendering his decision, he noted:

Whatever view prevails, there can be no dispute that the discretionary order of the Chief Justice to suspend jury trials, correct or not, was an exceptional circumstance within the Jordan framework. Even if the respondent is able to persuade this court that the Chief Justice was wrong to exercise his discretion in the manner that he did, the motion is doomed to fail because the decision could not be foreseen and could not be reasonably remedied by the Crown. It is worth noting that once the effects of the pandemic hit, the Crown took all reasonable steps to expedite the matter as best it could.

[64] While I concur that s. 11(b) applications rooted in pandemic-related delay can expect to face strong headwinds before the court, such applications must be reviewed on a case-by-case basis. The mere fact that a delay occurred during the pandemic does not make it sacrosanct and impervious to review; incidents of delay which would be regarded as unreasonable were it not for the pandemic will not be sheltered merely because they occurred in its shadow.

[65] The application before the court raises issues beyond the scope of pandemic-related delay. It asks the court to consider the role of scheduling conventions, the prioritization of cases, and the failure to consult with First Nations in delaying the timely disposition of the applicant’s charges. These are substantial concerns which warrant a full hearing of the application on its merits. In the circumstances, the Crown’s request to summarily dismiss the application is denied.

Analysis – Merits of the Application

Calculation of Net Delay

[66] For the purpose of my decision, I have considered the time period from the commencement date of the proceeding (August 14, 2017) to the proposed trial date on March 28, 2022. The total delay is therefore 55 months, 14 days.

[67] In reviewing the facts, I find that the following defence delay is deductible:

a. May 6, 2019 to October 21, 2019, being the time between the first available trial date and the scheduled trial date on which the defence was available. (Delay: 5 months, 15 days)

b. October 21, 2019 to May 25, 2020, being the time between the adjournment of the first trial date and the next scheduled trial date, which delay was explicitly waived by the defence. (Delay: 7 months, 4 days)

c. January 4, 2021 to April 19, 2021, being the time between the first post-pandemic trial date offered on which the Crown was available and the scheduled trial date on which the defence was available. (Delay: 3 months, 15 days)

[68] The Crown submitted that the court should attribute 1 month and 8 days of delay to the defence for the initial change in defence counsel. While there may be circumstances in which multiple changes of counsel constitutes unreasonable conduct demonstrative of defence delay, I do not find such circumstances present in this case. While the accused has retained three different counsel, the discharge of counsel always coincided with the immediate retainer of new counsel. Further, I note that disclosure of the impugned video had not occurred at the time of the first change of counsel; the absence of this disclosure would have made it impossible for the defence to move the matter forward within that month even if counsel had not changed.

[69] The Crown further submitted that the court should attribute 2 months and 2 days of delay to the defence following the judicial pretrial on May 16, 2018, during which time counsel sought instructions to waive the preliminary inquiry. In my view, this does not rise to the level of defence delay. The waiver of the preliminary inquiry was a significant step which would have required consultation with the applicant as well as a thorough review of disclosure to confirm whether there were any issues which should be explored at a hearing. There was also no evidence before me about the availability of appearance dates between May 16, 2018 and July 18, 2018 to assess whether the court’s schedule contributed to the delay.

[70] The delay attributable to the defence is therefore 15 months, 34 days (or 16 months, 4 days). When deducted from the total delay, this leaves a net delay of 39 months, 10 days.

[71] As the net delay exceeds the presumptive ceiling, the burden then falls to the Crown to demonstrate the presence of exceptional circumstances to rebut the presumption of unreasonable delay.

Exceptional Circumstances

[72] There can be no debate that the pandemic was a discrete, exceptional circumstance. It lay outside of the Crown’s control, was unforeseen and unavoidable, and was incapable of being reasonably remedied by the Crown. It was a textbook example of the type of discrete event contemplated by Jordan. As noted by Harris, J. in R. v. Fitzpatrick, 2021 ONSC 647 at para. 19:

The pandemic is obviously an exceptional discrete event within the Jordan rubric. If a once in a century pandemic with the impact we have seen upon every aspect of human life is not an exceptional circumstance, then what is? Any contrary position is unreasonable: see R. v. Simmons 2020 ONSC 7209 (S.C.J.) at paras. 68-77.

[73] The question then becomes what time period ought to be considered the “discrete event” arising from the pandemic.

[74] The Crown submits that the entire delay arising from the commencement of the pandemic to the rescheduled trial date ought to be attributed to the discrete event and deducted in the s.11(b) analysis. This position is well-supported by the case law: R. v. Simmons, 2020 ONSC 7209 at para. 69; R. v. Kattra, 2020 ONSC 5164 at para. 82; R. v. Metatawabin, 2021 ONSC 7168 at para. 26; 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.

[75] The applicant submits that, notwithstanding the pandemic, there were periods of time when it would have been possible to conduct jury trials on Manitoulin Island; those periods, he submits, should not be considered as part of the “exceptional discrete event” arising from the pandemic, but rather should be considered to be periods of delay.

[76] In support of his position, the applicant relies upon the evidence of Dr. Ignatius Fong, an infectious disease expert. It was Dr. Fong’s evidence that the case rates were exceptionally low in Manitouln District between November 2020 and September 2021and that it did not appear to him that it would have been any less safe to conduct a jury trial during that time than it was in September 2021 when the R. v. Jewell matter was tried before a jury. During cross-examination, Dr. Fong was forthright and acknowledged that he would not have recommended conducting in-person jury trials during the winter months; he would have recommended conducting trials during the summer months when infection rates were usually lower. Specifically, he testified that he would not have recommended conducting jury trials between November 2020 and April or May 2021. As previously noted, Dr. Fong also testified that Indigenous communities may be at a higher risk for severe disease and adverse outcomes; he testified that while he, “assumed” that Manitoulin Island had a large Indigenous population, he set that information aside for the purpose of preparing his opinion.

[77] On the evidence before me, I accept that the pandemic gave rise to a “discrete event” which ought to be deducted from the net delay; I find that the entire time from May 25, 2020 to March 28, 2022 ought to be deducted. The delay arising from this “discrete event” is 22 months, 3 days, which will be reduced by 3 months, 15 days to account for defence delay previously deducted for the period from January 4, 2021 to April 19, 2021; the resulting delay is 18 months, 18 days (assuming 30 days in a month).

[78] In reviewing the evidence, I considered whether a trial could have been scheduled in September 2020. There were no orders or notices which would have precluded a jury trial from being conducted in September 2020. There was evidence before me that a trial scheduled to commence in September 2020 had “collapsed” in July 2020. There was no evidence of any efforts by the Crown to fill the vacancy once it became available.

[79] Although I was left with questions about the efforts that had been made to schedule another matter for September 2020, it was clear from the evidence before me that there would have been no suitable court facilities in which to conduct a jury trial even if a matter had been scheduled. The Gore Bay jury courtroom could not safely accommodate a jury trial; an off-site venue was necessary. All of the off-site venues required infrastructure modifications to adapt to the court’s needs; if there was a site that did not require modifications, that evidence was not before me.

[80] The sworn Will State evidence of Michael Waby noted that it took several months to complete the necessary architectural plans, by-law resolutions, and equipment installations to prepare the Gore Bay Community Hall for use by MAG in September 2021. In the face of this evidence, I conclude that, even if MAG had proceeded with facility rentals in July 2020, those facilities would not have been ready for use on September 3, 2020 (when jury trials were to resume) or even by November 21, 2020 (when jury trials were again suspended). This lack of availability was directly related to the discrete, exceptional circumstances arising from the pandemic and was outside of the control of the Crown.

[81] I also considered whether the “discrete event” should be considered to have come to an end in September 2021 when the first post-COVID jury trial was conducted in Gore Bay. In the context of the applicant’s case, I have concluded that it should not. Throughout 2021 and continuing to the present date, the scheduling of the applicant’s trial continued to be impacted by the pandemic, a circumstance beyond the control of the Crown. The applicant’s trial date on April 19, 2021 was vacated as a result of the pandemic. It was scheduled for the first available jury trial date following that adjournment, being January 17, 2022; that date was also vacated as a result of the pandemic. Presently, jury trials are not scheduled to resume in the Province of Ontario until after February 28, 2022; a trial date of March 28, 2022 has been proposed for the applicant’s matter. Assuming no further pandemic-related adjournments, it is my view that the “discrete event” would come to an end at that time.

[82] The applicant has argued that the Crown could have reasonably remedied the trial delay by proceeding with his matter in September 2021 instead of the previously scheduled matter of R. v. Jewell. In response, the Crown relied upon evidence that the Jewell matter had been scheduled on October 6, 2020, that there had been no defence waivers as there had been in the applicant’s case, that the charges were more serious, and that resources had been allocated to preparing for that trial including subpoenaing witnesses.

[83] In R. v. Allen, 110 C.C.C. (3d) 331 (Ont.C.A.) at para. 27, Doherty, J.A. noted:

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. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[84] In R. v. Simmons, 2020 ONSC 7209, Nakatsuru, J. spoke to the exceptional circumstances arising from pandemic-related suspensions and trial cancellations and its impact upon trial scheduling. He noted that, “Rescheduling takes place in the reality of the courthouse” (para. 71) and that the pandemic, “has had a system-wide impact of unprecedented proportions, never seen before in our lifetime” (para.70).

[85] I do not accept the applicant’s submission that the “reasonable remedy” to the pandemic-related adjournment of his trial was to remove another previously-scheduled trial from the queue. Adopting that approach would create chaos within the court and for litigants. The uncertainty created by the pandemic is challenging enough without resorting to a scheduling system that would allow litigants to kick one another off the courthouse steps whenever proceedings were suspended.

[86] In my view, it was reasonable for the Crown to schedule cases displaced by the pandemic for the next unscheduled, available trial date, provided that pretrial delay was considered in allocating those dates; that was the approach adopted in this case.

[87] When the delay attributable to exceptional circumstances (18 months, 18 days), is deducted from the net delay of 39 months, 10 days, this leaves a remaining delay of 20 months, 22 days (assuming 30 days in a month). As the remaining delay falls below the presumptive ceiling, the onus shifts to the defence to demonstrate that this delay was unreasonable.

Remaining Delay

[88] In assessing whether the defence has met the burden of establishing unreasonable delay, I have considered: (1) trial scheduling in the summer and fall of 2021, including the prioritization of the R. v. Jewell matter; (2) MAG venue investigations and the failure by MAG to consult the First Nations on Manitoulin Island regarding the availability of facilities; and (3) the impact of running jury lists in contributing to delay.

Trial Scheduling, Summer and Fall 2021

[89] As noted, the applicant argues that the R. v. Jewell matter was inappropriately prioritized over the applicant’s matter and that the applicant’s trial either ought to have been scheduled in priority to Jewell, or that it ought to have been scheduled either immediately before or after Jewell.

[90] For the reasons previously given, I do not accept that the applicant’s matter should have been scheduled in priority to the Jewell matter when the trial date of April 19, 2021 was vacated. The issue to be considered in the context of unreasonable delay is then whether it should have been scheduled in the summer before the Jewell matter or in the fall immediately after the Jewell matter.

[91] After the applicant’s trial date on April 19, 2021 was vacated by the Notice of Justice Morawetz, a Trial Management Conference was conducted on March 9, 2021. At that time, defence counsel raised the issue of a s.11(b) application. The matter was referred for a judicial pretrial to discuss this potential application.

[92] The judicial pretrial was conducted on June 7, 2021. On June 4, 2021, defence counsel confirmed to the Crown that it was his intention to pursue a s.11(b) application. That process was initiated following the pretrial conference; the trial was scheduled to commence January 17, 2022 and the Charter application was scheduled for argument on November 25 and 26, 2021. Trial Management Conferences were conducted on October 12, 2021 and October 20, 2021 to ensure that defence counsel received the disclosure that he was requesting to proceed with the application as scheduled.

[93] There is no evidence before the court that the Applicant took any, “meaningful steps that demonstrate a sustained effort to expedite the proceedings” (Jordan, at para. 82) or to pursue an earlier trial date than the one scheduled for January 17, 2022. As noted by Cavanagh, J. in R. v. Drummond, [2020] O.J. No. 3908, 2020 ONSC 5495, at para. 84:

Under the Jordan framework, to satisfy the first criterion, it is not enough for the defence to make token efforts such as to simply put on record that it wanted an earlier trial date. It is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. It falls on the defence to show that it attempted to set the earliest possible trial dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conduct all applications reasonably and expeditiously. The defence is required to act reasonably, not perfectly. Jordan, at para. 85.

[94] In my view, once it became clear that jury trials would be resuming, “meaningful steps” by the applicant to expedite his proceedings would have included specific inquiries about the availability of late summer or fall trial dates. There is no evidence that such inquiries were made. There is also no evidence that the applicant explicitly objected to the Jewell trial proceeding in September 2021, notwithstanding that it was raised as an issue in this application subsequent to the completion of that trial.

[95] At the time that jury trials resumed in 2021, the applicant’s case had shifted from trial scheduling alone to scheduling a Charter application requiring an advance ruling followed by a trial. To be clear, the decision to pursue the application was the applicant’s right. That decision did not constitute defence delay and cannot operate to the prejudice of the defence. The addition of the application is, however, relevant when determining whether there was “unreasonable delay”. In my view, the fact that additional time would be required to schedule and conduct two events, one of which was contingent upon the outcome of the other, was both obvious and predictable. It would be challenging to characterize the resulting delay as, “unreasonable”.

[96] There is no evidence that supports a conclusion that, once jury trials resumed, the Charter application could have been completed and the trial scheduled sooner than they were. The disclosure process and the negotiation of an Agreed Statement of Facts with respect to the application were continuing as late as October 20, 2021. The applicant retained an expert witness to prepare a report and to testify at the hearing of the application; his witnesses’ report was dated November 9, 2021. These timelines would not have accommodated a trial in late summer 2021, in September 2021, or at any time prior to the suspension of jury trials on December 17, 2021.

MAG Venue Investigations and Consultations

[97] The evidence before me suggests that MAG could have been more diligent in its efforts to identify and secure facilities. It is also clear that MAG failed to engage the First Nations on Manitoulin Island in its consultation process during its investigations. The question is whether either contributed to any unreasonable delay in scheduling the applicant’s trial. I find that they did not.

[98] On the evidence before me, it appears that after being advised that the September 2020 jury trial in Gore Bay had “collapsed” and that no further jury trials were scheduled in Gore Bay in 2020, MAG’s investigation of possible trial venues lost its sense of urgency. Although it is clear from the evidence that inquiries continued throughout the fall of 2020, those inquiries did not appear to be driven by any imminent deadlines. By January 2021, MAG appears to have adopted a “wait and see” approach, as evidenced by its contract deferrals with the Inn until eventually that venue was no longer available.

[99] Once it became apparent that the Inn was going to be unavailable, one would have expected MAG to commence preparation of the Hall, which was identified as a suitable venue in the fall of 2020. Instead, MAG continued to investigate other venues, with resulting expense and delays, only to then return to the Hall. In my view, a clear explanation of MAG’s decision to meander onto this unnecessary path would have been warranted, particularly given that it ultimately settled on the venue that it had identified months earlier. It is possible that MAG was hoping to identify a venue which would require less investment into internet infrastructure, but this was neither clear nor obvious in the evidence before me.

[100] The failure to consult with the local First Nations, even after they extended the offer of their facilities, was also not explained. Again, it is possible that internet infrastructure was an issue. It is also possible that MAG was concerned about potential adverse impacts of conducting large-scale court operations in these vulnerable communities during the pandemic. If those were their concerns, they did not communicate that to the court through their evidence or, more importantly, to the First Nations leadership. The result of this lack of communication was the further alienation of a community that already felt marginalized by the justice system. Adopting a collaborative approach, as opposed to the paternalistic approach that was apparent here, would have avoided frustration and outrage with MAG’s decisions about the delivery of court services during the pandemic.

[101] Notwithstanding these shortcomings, it is my view that these failures did not result in unreasonable delay in scheduling the applicant’s trial. As I have noted, the window to schedule a trial in the fall of 2020 was extremely brief and it is my view from the evidence that none of the facilities would have been prepared prior to the suspension of jury trials on November 21, 2020 even with more diligent efforts by MAG or collaboration with the First Nations. Dr. Fong’s evidence that he would not have recommended conducting in-person jury trials in the winter months during the pandemic, and specifically between November 2020 and April or May 2021 is also relevant to this analysis.

[102] The failure to schedule jury trials during the summer of 2021 occurred as a result of the pandemic and not as a result of any delay by MAG in identifying and adapting a venue for trial. It is clear from the evidence that jury trial planning was still clouded by uncertainty even as of May 12, 2021 when Chief Justice Morawetz issued his Notice that jury trials would not be resuming in June. Once it became apparent that it was going to be possible to resume jury trials, it would have been too late to empanel a jury for July or August. In any event, by that point, the applicant’s litigation strategy had shifted, and he was planning a pretrial application that had to be scheduled and argued in advance of trial; this would have made a summer jury trial impossible.

Running Lists

[103] While it is possible that running lists may one day be the subject of a successful s.11(b) application, it is not an argument that can succeed on the facts of this case.

[104] With respect to the May 2019 sitting, it is clear from the transcripts that the court was prepared to accommodate defence counsel and that, indeed, defence counsel was available during the sitting but was not available for jury selection which was the only aspect of the sitting that was incapable of being accommodated. The court canvassed the option of having an agent attend for jury selection; there is no evidence that defence counsel entertained that option.

[105] While the applicant’s materials allude to the fact that his current defence counsel could not accommodate a running list until April 2020, that was not reflected on the record during assignment court. I note that, in the assignment court on July 4, 2019, it was noted on the record that counsel was not able to have two clear weeks (the time required for trial, not a running list) until April 2020.

[106] This argument, therefore, also does not meet the burden of establishing unreasonable delay.

Disposition

[107] I find that the Crown has rebutted the presumption of unreasonable delay in this matter by demonstrating the presence of exceptional circumstances that it could not reasonably remedy. This shifted the burden to the applicant, who has not satisfied his onus of demonstrating unreasonable delay. The application is therefore dismissed.

K.E. Cullin, J.

Released: February 18, 2022