Court File and Parties

COURT FILE NO.: 778/21 DATE: 20220323

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – CYPRIAN OSEI

Counsel: C. Coughlin, for the Crown A. Lobel, for the Applicant

HEARD: March 11, 2022

11(b) Application (Corrected decision)

MILLER J.

Endorsement

[1] Cyprian Osei is charged with, on February 11, 2019, knowingly possessing an unauthorized firearm; occupying a vehicle knowing a firearm was present; and possession of a loaded, prohibited or restricted firearm.

[2] Mr. Osei applies for a stay of proceedings as a s. 24 (1) remedy due to a violation of his right, pursuant to s. 11(b) of the Charter, to trial within a reasonable time.

[3] The parties agree that the time from February 12, 2019, when the information was laid, to the anticipated end of trial, exceeds the 30 month presumptively unreasonable delay (for matters in Superior Courts) as set out in R. v. Jordan, 2016 SCC 27 and is therefore properly subject to s. 11 (b) scrutiny with respect to defence delay and exceptional circumstances.

[4] The parties agree that the COVID-19 pandemic and the resultant impact of public health restrictions on the courts amounts to an exceptional circumstance. The parties disagree as to how and for how long the exceptional circumstances should apply to reduce the net delay pursuant to s. 11 (b).

[5] The position of Mr. Osei is that there is no delay attributable to the defence but that after deducting a reasonable period of time attributable to the exceptional circumstances of the COVID-19 pandemic, the remaining delay remains 1,076 days or 35.86 months and is presumptively unreasonable.

[6] The position of the Crown is that there are defence delays and when these, and time properly attributable to the exceptional circumstances of the COVID-19 pandemic, are deducted, the remaining delay is below the Jordan threshold and is reasonable.

Timeline

[7] Mr. Osei was arrested February 11, 2019, and the information was sworn February 12, 2019. He was co-accused with another individual.

[8] The original preliminary inquiry dates were scheduled for June 22 and 23, 2020. Following the setting of the preliminary inquiry dates, the co-accused elected to be tried in the Superior Court with a jury. Mr. Osei made no election at that time but was bound, by virtue of the joint charges, by the election of the co-accused.

[9] The preliminary inquiry dates were adjourned following the court shutdown beginning March 17, 2020, necessitated by the COVID-19 pandemic. On June 22, 2020, the matter was presumptively adjourned to August 31, 2020.

[10] In the interim, on June 23, 2020, the trial coordinator’s office contacted counsel to schedule a mandatory “COVID JPT.”. The same date counsel for both accused and the Crown reply with their availability. The JPT was booked for June 29, 2020.

[11] On June 29, 2020, a JPT was held. Counsel all confirmed that the two-day preliminary inquiry estimate was still valid. The next step was to book a meeting with the trial coordinator to schedule new preliminary inquiry dates.

[12] Pursuant to the OCJ Notice to the Profession and the Public re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates published July 2, 2020, defence counsel was responsible for filling out a Trial / Preliminary Inquiry Scheduling Form and filing it with the Court and appropriate Crown’s office.

[13] On August 31, 2020, Crown and duty counsel appeared. Mr. Osei did not and there was a bench warrant issued to be held with discretion until the presumptive COVID remand to October 5, 2020.

[14] On October 1, 2020, counsel for Mr. Osei contacted the Crown regarding the steps required to book preliminary inquiry dates. The Crown replied suggesting that counsel locate a form online and inquire into whether the matter can proceed via discovery. The same date counsel for both accused submitted the requisite form. It is not clear whether these forms reached the trial coordinator.

[15] On October 5, 2020, neither counsel for Mr. Osei nor the co-accused appeared. The matter was remanded to the presumptive adjournment date of November 9, 2020, with the bench warrants extended to that date.

[16] In the interim, on October 15, 2020, the Crown re-sent the above-noted forms to the trial coordinator, and on October 20, 2020, the trial coordinator acknowledged receipt of the forms.

[17] November 9, 2020, counsel for the co-accused appeared as agent for counsel for Mr. Osei and advised that he and counsel for Mr. Osei were waiting to hear from the trial coordinator regarding setting a new date. The matter was remanded to December 14, 2020.

[18] December 7-8, 2020, the trial coordinator contacted counsel to schedule a meeting to book preliminary inquiry dates. The meeting was scheduled for December 9, 2020. On December 9, 2020, preliminary inquiry dates were booked for March 30-31, 2021.

[19] On December 14, 2020, the matter was adjourned to the first date of the re-scheduled preliminary hearing.

[20] The preliminary inquiry was held on March 30th, 2021. At the end of evidence on March 30, 2021, Mr. Osei conceded committal on all three counts. On March 31, 2021, the co-accused was discharged on all counts.

[21] The matter proceeded to the Superior Court and Mr. Osei’s trial is scheduled to begin June 13, 2022, for seven to ten days with pre-trial motions (of three to five days) scheduled to begin the week of April 25, 2022.

[22] In written argument, counsel for Mr. Osei took the position that the period from the date of arrest, February 11, 2019, and the anticipated last date of the trial, June 28, 2022, will be 1,230 days, or about 41.13 months. The Crown’s position is that the total delay in this case is 1,227 days or approximately 40 months. The Information was sworn on February 12th, 2019, and Mr. Osei’s seven-to-ten-day jury trial is scheduled to conclude on June 24th, 2022. After some discussion with counsel during the hearing, I understood counsel for Mr. Osei to concede that the Crown’s calculation of the total time at 1,227 days is correct.

The Presumptive Ceiling

[23] The crux of the Jordan framework is set out at paragraphs 47 and 48:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[24] As noted by Woolcombe J. in R. v. Khattra, 2020 ONSC 7894, a useful summary of the process of such an evaluation was set out in R. v. Coulter, 2016 ONCA 704, by Gillese J.A., at paragraphs 34-40 as follows:

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

[25] The Crown submits there is defence delay which should be deducted from the total.

[26] The Crown relies on evidence that on July 18, 2019, counsel for Mr. Osei was unavailable for two preliminary inquiry dates that the co-accused, Crown and Court offered. The Crown submits that seven days of defence delay should therefore be deducted.

[27] The Crown further relies on evidence that at the time the preliminary inquiry was being re-scheduled (December 9, 2020) the Court, Crown and counsel for co-accused were available for the preliminary inquiry on February 3, 2021, whereas counsel for Mr. Osei was not available until the March 30th, 2021 date which was selected. The Crown submits that another 55 days of defence delay should therefore be deducted.

[28] The Crown further relies on evidence that on the April 23, 2021, first appearance in the Superior Court Assignment Court a Judicial Pretrial was scheduled for May 28, 2021, to accommodate the schedule of counsel for Mr. Osei although the Court and Crown were prepared to set May 14, 2021 for the Judicial Pretrial. As well, the agent who appeared for Mr. Osei indicated they would set trial dates after the Judicial Pretrial rather than before. The Crown submits that another 14 days of defence delay should therefore be deducted.

[29] The total time to be deducted for defence delay, according to the Crown, is 76 days.

[30] The position taken by counsel for Mr. Osei is that there was no defence delay.

[31] The majority in Jordan indicated at paragraph 64 that:

…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[32] The defence delay identified by the Crown falls into this category. I am satisfied that 76 days of defence delay should be deducted from the total delay of 1,227 days for a net delay of 1,151 days or 38.35 months.

[33] As the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances.

The COVID-19 pandemic as an Exceptional Circumstance

[34] The Crown submits that the period from mid-March 2020 to end of Mr. Osei’s preliminary inquiry March 31, 2021, is properly characterized as an exceptional circumstance due to the COVID-19 pandemic and its effects on the criminal justice system.

[35] Counsel for Mr. Osei concedes that the COVID-19 pandemic and its effects on the criminal justice system amounts to an exceptional circumstance as contemplated in Jordan.

[36] Counsel for Mr. Osei disagrees as to the amount of time to be deducted from net delay because of the exceptional circumstance. Counsel for Mr. Osei submits that the exceptional circumstance deduction should run from the time of Mr. Osei’s originally scheduled preliminary inquiry June 22, 2020, to the end of the completed preliminary inquiry March 31, 2021.

[37] Counsel for Mr. Osei further submits that the deduction for the exceptional circumstance should be reduced for the period of time he alleges that the Crown was not proactive in moving the matter forward.

[38] Many courts have recognized that the COVID-19 pandemic and its effects on the criminal justice system amounts to an exceptional circumstance as contemplated in Jordan. Different decisions attribute different amounts of time to this exceptional circumstance.

[39] In the case at bar there was a preliminary inquiry date scheduled for June 22 - 23, 2020 which, because of the COVID-19 court shutdown, had to be adjourned. It was eventually held March 30, 2021.

[40] Other cases in the Superior Court have addressed the situation where a trial date scheduled to proceed after the COVID-19 court shutdown had to be adjourned. These cases have recognized the broader impact of the backlog created by the court shutdowns and have treated the time from when the case had to be re-scheduled to the time of the re-scheduled trial as one block period of exceptional circumstance. These cases recognized the extraordinary steps taken by the administration of justice to adapt to the reality of the pandemic and the public health restrictions and to re-schedule cases so that they could be heard with a minimum of delay. These cases also recognize the particular effect of the pandemic on the ability of the courts to proceed with jury trials.

[41] In R. v. Simmons, 2020 ONSC 7209, at paragraph 63, Nakatsuru J. noted that:

…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.

[42] In Khattra, decided December 15, 2020, Woolcombe J. held that the period of time from when the courts shut down in Ontario – March 17, 2020 - to the originally scheduled trial date of May 11, 2020, was to be included in the net delay, whereas delay after the original trial date was part of the exceptional circumstances to be deducted from net delay.

[43] In R. v. Brooks, 2022 ONSC 115, decided in January 2022, Copeland J. held that, although the original trial date was in May 2020, the time from mid-March 2020 when the COVID-19 court shutdown was declared should be included in the exceptional circumstance deduction. She held at paragraph 25:

To exclude the period of mid-March 2020 to May 2020 has the effect of excluding from the calculation the delay impacting the entire court system during this period and the impacting the resetting of trial dates of all of the trials which could not proceed in that time period.

[44] In R. v. Hyacinthe, 2022 ONSC 1444, decided March 4, 2022, Harris J. came to a similar conclusion. In that case the pre-trial motion dates for April 2020 and the jury trial dates for May 2020 previously set were vacated due to the pandemic and re-scheduled. The trial in that case is scheduled to proceed March 21, 2022. Harris J. held at paragraph 17 that:

…everything that occurred in the two year period between March 2020 and the upcoming trial date of March 21, 2022 lies under a blanket of exceptional delay attributable to the pandemic. Jury trials have been very rare over the last two years. I agree with the opinion voiced in the caselaw that generally the entire two year period ought to be regarded as an exceptional circumstance even though, theoretically, a jury trial could have been heard if the timing was precisely right and all the stars magically aligned. Cognizance must be taken of the reality that only a select few of the multitude of backlogged jury trials could fit into the few spaces in the court docket that were available: see Khattra at paras. 62, 79-83. There was a significant domino effect which affected this case and the vast majority of other jury trials. The entire waiting period caused by COVID in my view constitutes exceptional delay.

[45] Ultimately, Harris J. held, at paragraph 18, that the COVID-19 exceptional circumstance period ended at March 1, 2022, the date on which we now know the Ontario government ended physical distancing restrictions in Ontario courthouses.

[46] Other cases in the Ontario Court of Justice, where the Jordan presumptive ceiling is 18 months and jury trials are not in play, have taken a different approach.

[47] In R. v. Greenidge, 2021 ONCJ 57, Monahan J. noted that it was not a case where the trial was scheduled to take place under the presumptive ceiling during the COVID-19 partial court shut-down and then had to be adjourned to a later date. In that case the trial date was set before the pandemic to a date beyond the presumptive ceiling. At paragraph 31 Monahan J. found that:

…the evidence the Crown has put forward on this application falls short of establishing that the Crown would have, but for the pandemic, succeeded in having this case tried in under 18 months or that it would have been able to secure earlier dates from the TC to offer to the defence (which may have given rise to defence delay if they were not accepted).

[48] In R. v. Li, [2021] O.J. No. 7392, decided on August 13, 2021, Misener J. found that delay from when the trial date was set to the date of trial was not longer than the delay typically associated with an out-of-custody trial in pre-pandemic times and therefore could not be said to have been “caused” by the pandemic.

[49] While I understand the approach taken in Hyacinthe and in Brooks, I prefer the position taken in Khattra which recognized that in the circumstance where the trial (or preliminary hearing) date had been set prior to the mid-March COVID-19 shutdown, the period of exceptional circumstance attributable to the COVID-19 pandemic should begin at the original trial (or preliminary hearing) date. This approach recognizes delay that existed before the pandemic restrictions took effect. In this case no steps were taken to re-schedule the preliminary inquiry until after the originally scheduled date of June 22, 2020.

[50] In this case, unlike Hyacinthe and Brooks, the Crown does not seek to extend the COVID-19 exceptional circumstance period to the end of the presently scheduled trial.

[51] I therefore find that the Crown has established an exceptional circumstance period from June 22, 2020 through March 31, 2021, a period of 283 days.

Crown Responsibility to be Proactive

[52] Counsel for Mr. Osei submits that from the period of exceptional delay the Court should extract the period of time the Crown was not proactive in moving this matter forward. Counsel for Mr. Osei submits that this period extends from June 30, 2020 (the day after the COVID JPT) to October 15, 2020 (108 days) when the Crown submitted the defence Trial / Preliminary Inquiry Scheduling Forms to the trial coordinator.

[53] In R. v. Betz, 2020 ONCJ 377, decided August 27, 2020, Camara J. indicated at paragraph 48 that within the exceptional circumstance of the COVID-19 pandemic, the Crown nonetheless had the responsibility to make efforts to bring the defendant to trial within a reasonable time.

[54] In Simmons at paragraph 80, Nakatsuru J. indicated:

The Crown cannot sit idly on their hands when rescheduling the backlog created by COVID-19 — at minimum, thoughtful triage of trials is expected. In this case, the Crown was proactive. So, too, was the court. The emails to the defence showed that the Crown did try to reasonably mitigate the delay. The Crown recognized the impact of the delay on Mr. Simmons' s. 11(b) guarantee. The Crown gave the case priority. The Crown tried to secure early dates, something that given the unique situation posed by the pandemic, was not likely easy to do.

[55] Counsel for Mr. Osei submits that at points during the exceptional circumstance of the COVID pandemic the Crown failed to take reasonable steps to mitigate delay. Counsel for Mr. Osei submits that the time period between the date the “COVID JPT” was conducted (June 29, 2020) and the date that the Applicant’s counsel contacted the then-assigned Crown regarding the procedure for scheduling a new preliminary inquiry (October 1, 2020) should fall at the feet of the Crown. He submits that the Crown did not take any reasonable steps to advance this matter during that period of time or indeed until October 15, 2020. Rather, it was correspondence from counsel for Mr. Osei that spurred the Crown to suggest that Mr. Osei’s counsel locate the required form.

[56] As identified by Dellandrea J. in R. v. Elakrat, 2020 ONCJ 343 (Ont. C.J.) at paragraph 33:

The three responsibilities which Jordan [at paragraph 70] unmistakably identifies as incumbent on the Crown within its duty to bring a defendant to trial within a reasonable time are:

(1) to anticipate potential scheduling problems; (2) to take reasonable steps to avoid them, when they occur; and (3) to address any problems promptly.

[57] At paragraph 90 of Jordan the Majority of the Supreme Court indicated that:

Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

[58] Counsel for Mr. Osei submits that the Crown fell short of this standard in the time period between the COVID JPT on June 29, 2020, and the date on which the Crown sent the preliminary inquiry scheduling form to the trial coordinator on October 15, 2020. Counsel for Mr. Osei submits that in this period the Crown was not proactive in moving the matter forward and did not give the matter priority, for example, by locating the scheduling form prior to the JPT or shortly thereafter, or by following up with the trial coordinator sooner after it had been sent in by defence counsel.

[59] I disagree. While Jordan generally puts responsibility on the Crown to take proactive steps to mitigate delay, the exceptional circumstances of the COVID-19 pandemic and clear direction from the Court to defence counsel placed responsibility on counsel for Mr. Osei to take the steps directed by the Court to move the matter forward. Jordan also recognizes, at paragraph 84, that “the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings.”

[60] Counsel for Mr. Osei points to other evidence – that Mr. Osei would have chosen a trial in the OCJ but for the election of the co-accused, and that he chose to proceed with the preliminary inquiry on March 30, 2021, and to concede committal for trial despite the unavailability of a key police witness on that date – as evidence that Mr. Osei did what he could to expedite the proceedings. This evidence does not apply, however, to the specific period between June 30, 2020 and October 15, 2020.

[61] The July 2, 2020 OCJ Notice to the Profession indicated that defence counsel were responsible for filling out a Trial / Preliminary Inquiry Scheduling Form and filing it with the Court and appropriate Crown’s office. Counsel for Mr. Osei did not do this until October 1, 2020. The Crown is at most responsible for the delay between October 1, 2020 when it received the forms and October 15, 2020 when the Crown submitted the forms to the trial coordinator. This is a period of 15 days.

Conclusion

[62] The total delay is 1,227 days. The net delay, deducting 76 days of defence delay, is 1,151 days.

[63] Deducting a further 268 days (283 days less 15 days of unexplained lack of Crown responsiveness during the COVID-19 exceptional circumstance) the remaining delay would be 883 days or 29.43 months.

[64] However, the 55 days of defence delay which I had found occurred between February 3, 2021 and March 30, 2021 was already deducted in order to calculate net delay. This 55 day period also falls within the period of exceptional delay, and cannot be double-counted. Adding back these 55 days to the remaining delay the total is 938 days or 31.2 months. This is over the Jordan ceiling of 30 months.

[65] While the Crown urged me to consider, in the event I found the remaining delay to be over the Jordan ceiling, the complexity of the case (involving, up to the end of the preliminary inquiry, a co-accused) and local circumstances (a very heavy criminal workload in the Brampton courthouse) in order to show that the delay was nonetheless reasonable, I do not find that the circumstances here justify a finding that the delay over the threshold was reasonable.

[66] I therefore find that there has been a violation of Mr. Osei’s right to be tried within a reasonable time and his application for stay is granted.

Released: March 23, 2022