COURT FILE NO.: CR -18 -1215 DATE: 2022 03 21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN S. Scully, for the Crown Respondent
– and –
OMAR Al-RUBAYE Applicant J. Erickson, for the Applicant
HEARD: February 25, 2022
RULING ON s. 11(b) CHARTER APPLICATION
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
J.M. Woollcombe J.
A. Introduction
[1] The applicant, Omar Al-Rubaye, is charged one count of sexual assault on S.A., alleged to have taken place on July 16, 2017. His trial is scheduled to proceed with a jury on May 16-24, 2022. He brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay. I heard the application as case management judge.
[2] The total delay from the swearing of the Information on July 28, 2017 to the anticipated completion of the trial on May 24, 2022 is 1762 days or 57 months and 27 days. This is a delay over the presumptive ceiling of 30 months set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 for matters tried in the Superior Court of Justice.
[3] The issues to be decided are:
i) How much time should be deducted from the total delay as defence delay?
ii) How much time should be deducted from net delay as an exceptional circumstance resulting from the COVID-19 pandemic?
iii) If the remaining delay is below 30 months, is a stay is warranted?
[4] For the reasons set out below, the application is dismissed.
B. The Allegations
[5] The facts respecting the charge are not complicated.
[6] On July 16, 2017, the complainant was out clubbing, after which she met Mr. Al-Rubaye and Mr. Al-Dishagli, on the street. The two men offered the complainant a ride home. She got into the car.
[7] In the complainant’s statement, which was filed at the preliminary inquiry, she described consensual sexual activity with both men in the car [1]. They then went to Mr. Al-Rubaye’s residence, a condominium unit. In the condominium unit, the Crown alleges that the complainant was sexually assaulted by the two men. This included anal penetration by Mr. Al-Rubaye while the complainant was being held by Mr. Al-Dishagli. It also included oral sex by Mr. Al-Rubaye on the complainant.
[8] Mr. Al-Rubaye and Mr. Al-Dishagli were jointly charged with “gang sexual assault” under s. 272(1)(d) of the Criminal Code. The charges were subsequently severed, and the charge against Mr. Al-Dishagli has been withdrawn. Mr. Al-Rubaye is proceeding to trial on one count of sexual assault.
C. Legal Principles
i) The Legal Framework
[9] The Supreme Court of Canada’s decision in Jordan sets out the framework to apply when considering whether delay (from the date of charge to the anticipated completion of trial) is unreasonable. The framework creates a ceiling, beyond which delay is presumptively unreasonable.
[10] Gillese J.A., writing for the court in R. v. Coulter, 2016 ONCA 704, summarized the framework as follows at paras. 34-40:
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). [emphasis in original]
See also: R. v. Daponte, 2021 ONCA 14 at para. 14
ii) Defence delay
[11] As set out at paras. 64-65 of Jordan, defence delay refers to delay caused by the conduct of the defence:
[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.
[64] As another example, 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. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott, 2003 ONCA 24447, 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
[65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
iii) Exceptional Circumstances – Discrete Events
[12] If, when defence delay is deducted from the total delay, the net delay exceeds 30 months, then it falls to the Crown to show that the delay is reasonable because of exceptional circumstances – circumstances that are outside the Crown’s control because they are, first, reasonably unforeseen or unavoidable and, second, the Crown cannot remedy the delay.
[13] The Crown relies on the COVID-19 pandemic as a discrete exceptional circumstance. As would be expected, both sides agree that the pandemic has been outside the control of any of the parties and was unforeseeable. The extent to which the Crown may rely on delays that result from the pandemic as an exceptional discrete circumstance depends on the extent to which the Crown took reasonable steps to mitigate the delay.
D. Analysis
i) What, if any, are the periods of defence delay?
[14] The Crown sets out in its factum and accompanying chart a number of periods of delay that it says are defence delay. I shall address each of them.
ONTARIO COURT OF JUSTICE
a) September 1 - 8, 2017
[15] The first period of defence delay alleged by the Crown is September 1 - 8, 2017.
[16] To put this in context, Mr. Al-Rubaye’s first appearance in the Ontario Court was on August 21, 2017. A designation of counsel Mr. Erickson was filed and initial disclosure was provided. The case was adjourned to September 1, 2017. That day, Mr. Erickson was not present, nor was Mr. Al-Rubaye. At duty counsel’s request, the case was adjourned to September 8, 2017.
[17] On September 8, Ms. Wansbrough appeared as agent for Mr. Erickson and indicated that Mr. Erickson had asked her to ascertain if there was any further disclosure. The Crown responded that if there was a specific request, counsel should send a letter.
[18] A letter was sent and at the next appearance, on September 29, 2017, disclosure was provided to Ms. Wansbrough, as agent for Mr. Erickson. She asked that the matter go to October 30, 2017, at which time she appeared and raised a concern that the complainant’s statement was still outstanding from the disclosure. The Crown said that it was available for disclosure and could be provided. Ms. Wansbrough asked that the case return on November 20, 2017, expressing the hope that there could be a Crown pre-trial before that. The record shows that copies of the video statements of the complainant and the accused were provided on October 30, 2017.
[19] The fact that neither Mr. Erickson or Mr Al-Rubaye attended at court on September 1, 2017 does not support a finding that the delay between September 1 and 8, 2017 is defence delay. The chronology shows that the Crown was still making significant disclosure. No one was in a position to set a Crown pre-trial. This delay counts in the Jordan ceiling.
b) November 20, 2017 - December 11, 2017
[20] The next period of defence delay alleged by the Crown is November 20 to December 11, 2017. The Crown submits that this delay is attributable to the defence because it failed to conduct a Crown pre-trial before November 20.
[21] On November 20, 2017, when the matter returned before the court, no Crown pre-trial had been conducted. As agent for both accused, Ms. Wansbrough asked for a 3 week adjournment so that a Crown pre-trial could be held. The case was adjourned to December 11, 2017. There is nothing on the record about the defence needing further disclosure for a Crown pre-trial.
[22] The defence position is that while the defence had the video statements of the complainant and both accused as of October 30, 2017, an additional video was required before there could be a pre-trial, and that it was not provided until the Crown pre-trial on December 11, 2017.
[23] The delay from November 20 to December 11, 2017 is defence delay. It was resulted from the defence not scheduling and conducting the anticipated Crown pre-trial after the October 30, 2017 appearance. In this jurisdiction, it is for the defence to schedule these meetings. It is significant that on October 30, 2017, when the defence agreed to schedule the Crown pre-trial before the next appearance (knowing that counsel had been unable to play the DVD video of the apartment before the alleged sexual assault, which had been disclosed on September 29, 2017), no suggestion was made that the pre-trial this was conditional on receiving a replacement DVD. Nor, in my view, was there any good reason for this replacement video to have been provided before a meaningful pre-trial could have been conducted. The Crown pre-trial ought to have been scheduled by the defence before November 30, 2017. By not doing so, the defence caused the 21 day delay from November 20 to December 11, 2017.
c) January 5 - 9, 2018 and August 15, 2018
[24] When the case was before the court on December 11, 2017, Ms. Wansbrough appeared for both co-accused and indicated that a judicial pre-trial (“JPT”) had been scheduled for January 9, 2018. The Pre-trial Verification Form indicates that the court offered dates for the JPT on both January 5 and January 8, 2018, dates on which the Crown was available but the defence was not. A JPT was conducted on January 9, 2018. The Crown says that the delay from January 5 to 9, 2018 is defence delay of 4 days. I agree. The court and Crown were ready to proceed and the defence was not.
[25] The JPT took place on January 9, 2018. The matter returned to court on January 15, 2018. Dates were set for the co-accused to have discovery on June 11, 2019 and for both accused to have a preliminary inquiry on August 15 -16, 2018. The defence was offered dates of August 14 -15, 2018, but defence counsel was unavailable the first day. It is conceded that this one day of further delay is defence delay. At the conclusion of the preliminary inquiry on August 16, 2018, both accused were committed to stand trial.
[26] It follows these findings that there were 26 days of defence delay in the Ontario Court of Justice
SUPERIOR COURT OF JUSTICE
d) September 14, 2018 - December 20, 2018
[27] The co-accused had their first appearance in Superior Court on September 14, 2018. Counsel were not present. Durno J. inquired whether their lawyers had given dates they were available for a JPT. The case was adjourned to October 12, 2018 so that counsel’s availability for a JPT could be canvassed.
[28] On October 12, 2018, counsel did not attend for the co-accused and neither did the applicant. A bench warrant with discretion was issued and the matter was adjourned to November 16, 2018.
[29] The defence concedes that the 63 day delay from September 14 to November 16, 2018 is defence delay. The rest of this period was initially disputed.
[30] On November 16, 2018, the applicant attended at court without counsel. Asked what he was doing about getting counsel, he indicated that he needed a little more time to retain counsel and that he was not working and was going to apply to Legal Aid. Counsel for the co-accused wanted to set a JPT. Dates were offered as early as the week of November 27- 29, 2018 with counsel for the co-accused available on the 28th. The Crown asked for a later date to accommodate the assigned Crown. The JPT was set for December 10, 2018, to proceed with or without counsel.
[31] While the Crown’s position initially was that the delay from November 16 to December 10, 2018 was defence delay, at the hearing before me, Ms. Scully agreed that this time falls within the Jordan ceiling. I agree.
[32] On December 10, 2018, the applicant attended at court without counsel. The co-accused was represented by an agent for counsel. It appears that counsel for the co-accused had sent a letter to the court, not the JPT form, and, ultimately, asked for the JPT to be adjourned. It was re-scheduled for December 20, 2018.
[33] Counsel agree that this delay falls within the Jordan ceiling. I agree.
e) December 20, 2018 - November 4, 2019
[34] This is one of the critical time periods of dispute between the parties.
[35] On December 20, 2018, the applicant appeared before Durno J. without counsel. He indicated that he needed more time to retain Mr. Erickson, telling the court that he had just found a job and needed a couple of months. He also advised that Mr. Erickson had given him his dates for trial and that the earliest date Mr. Erickson was available was November 4, 2019.
[36] The co-accused’s counsel was present, though not retained. He suggested that the trial be set “with or without” counsel.
[37] Justice Durno said that a trial date should be set. He thought that the trial date should be set when Mr Erickson was available, and should be scheduled “with or without” counsel. While the applicant points out that the court did not offer any earlier dates than November 4, 2019 for the trial, the reality was that earlier dates were not discussed or canvassed, given Mr. Erickson’s unavailability.
[38] The Crown says the entire time from December 20, 2018 to November 4, 2019 is defence delay caused by the fact that Mr. Erickson was not available.
[39] The defence says that in the absence of any evidence on the record that there were dates on which the court and Crown were available, this delay all falls within the Jordan time period as defence delay requires the Crown to demonstrate that the court and Crown were available, and the defence was not.
[40] Neither position advanced seems correct to me in these circumstances.
[41] It cannot be that the court and Crown were both available for trial starting immediately, with the result that all of the delay is defence delay. Some period of delay must fall within the Jordan ceiling.
[42] At the same time, I cannot accept that the inadvertent failure of the court to reflect on the record what dates would have been available for trial, had Mr. Erickson been free, means that all of the delay falls within the Jordan ceiling. I reach that view for three reasons.
- First, it is clear that it was the applicant who wanted some time to retain counsel. Certainly, he was not seeking the earliest possible trial date. Indeed, when the matter returned before the court for ongoing pre-trials in 2019, the applicant had still not retained counsel and wanted to. For instance, he told the court on March 8, 2019 that he had spoken to Mr. Erickson the day before and still was not able to retain him. It was not until the appearance on April 26, 2019 that the Crown had been advised by Mr. Erickson that he had been retained. Prior to that, even had there been a date for trial, the applicant would not have ready to proceed.
- Second, it is obvious from the record on December 20, 2018 that had the applicant indicated that Mr. Erickson had earlier dates, or that he wanted an earlier trial date, the court would have sought to obtain dates that were less than 11 months out. It was for reasons of expediency only that, having been told Mr. Erickson’s unavailability, and that the applicant wanted time to retain counsel, that the court set a trial date when it was anticipated that Mr. Erickson would be available. It would have been an exercise in futility to have gone through the formality of seeing what trial dates would have been available, only to set the trial for November 2019 when counsel could attend.
- Finally, in my view, the Jordan framework did not set the criminal justice system up to become a game of “gotcha”, which is effectively the position advanced by the applicant. He says that because the court declined to engage in the formality of putting on the record possible trial dates, before counsel had been retained and on which everyone knew counsel was unavailable, all of the delay falls within the Jordan framework. I see this as an unwarranted and unjustifiable windfall for the defence.
[43] The challenge left by the somewhat unsatisfactory record is in determining what delay from December 20, 2018 to November 4, 2019 (Mr. Erickson’s first available date) is defence delay and what delay falls within Jordan. While I cannot say when an earlier trial date could have been offered, on which the Crown would have been available, based on my experience in Brampton, it seems highly likely that dates would have been found well before November 4, 2021, had counsel been available [2]. As a result, I have decided that the delay of 319 days should be shared between defence delay and delay falling under the Jordan ceiling. There is no obvious way to do so. Being very generous to the defence, I allow that ¾ of the delay (239 days of 7.86 months) falls within the Jordan ceiling as time that would have been required to secure a date on which the court and Crown were available, and that the other ¼ of the delay, or 80 days, are attributable to the defence because of Mr. Erickson’s lack of availability.
f) January 6, 2020 - May 4, 2020
[44] In preparation for the November 25, 2019 trial date, a further JPT was conducted on October 17, 2019. It appeared that both counsel were ready for trial. The Crown indicated that it intended to seek a DNA warrant to compare the samples from the complainant with those from the co-accused. The warrants were executed on October 23 and 29, 2019 and on November 4, 2019, the Crown served notice that it intended to call a DNA expert.
[45] At the trial readiness conference on November 15, 2019, counsel for the co-accused was prepared to confirm that they were ready for trial. The “potential issue” was that the Crown had sought a DNA warrant respecting the co-accused and was awaiting the results. The Crown did not have an update on the DNA. Mr. Erickson indicated that a DNA warrant had also been executed on the applicant and that the results were awaited. He also said that there was a potential issue with respect to the applicant’s statement and whether there would be a Charter motion, but that he needed the discovery transcripts. The case was adjourned to November 20 for an update on when the results of the DNA testing were anticipated.
[46] By November 20, 2019, Mr Erickson had received the DNA report. He said that having reviewed it, a number of things had “radically changed” for the defence. First, he said that he now understood that the Crown intended to call an expert who would identify the applicant as a likely contributor to a sample of semen DNA. He also indicated that the Crown had been intending to file is client’s exculpatory statement at trial, which he had not been opposed to. [3] Now, however, he said that he would need to file applications opposing the admission of the statement on both the voluntariness and Charter basis. As a result, and because of the late notice respecting the Crown expert, Mr. Erickson sought an adjournment. Counsel for the co-accused did not consent to any adjournment.
[47] The Crown was not opposed to the adjournment request, given that it had not served its notice about the expert evidence 30 days before the trial in accordance with s. 657.2 of the Code.
[48] Durno J granted the adjournment, indicating that the timing of the DNA warrant “leaves a great deal to be desired”. He adjourned the matter to November 25, 2019 to set a new trial date.
[49] At the set-date on November 25, 2019, Justice Durno indicated that the Crown and court were able to give the case priority. He offered trial dates every Monday starting on January 6, 2020. For many of those dates the Crown was available, or indicated that she would need to verify with her office that a Crown would be available. She was available on January 27, 2020. Counsel for the co-accused was available on many of the dates offered. Mr. Erickson was not available any week from January 6 through to April 27, 2020. His first available date was May 4, 2020, a date that was not offered by the court.
[50] As a result, the second trial date was set to begin May 11, 2020.
[51] The Crown says that all of the delay from January 6, 2020 (the first trial date offered) until March 15, 2020 (the date of the court suspension for the pandemic) is defence delay. Ms. Scully submits that the court offered trial dates beginning on January 6, 2020 and that while the Crown had to check with her office to ensure a prosecutor was available, the only reason this was not done was because Mr. Erickson was not available.
[52] Mr. Erickson says that the defence delay does not begin until January 27, 2020 because that is the first date that the Crown confirmed that it could proceed.
[53] I find all of the delay from January 6, 2020 to May 4, 2020 is as a result of defence unavailability. The co-accused was available and that the court had dates. The Crown just needed to confirm someone could prosecute the case from her office, but did not waste court time doing so because of Mr. Erickson’s unavailability. It is clear that the assigned Crown had many dates available in the period of defence counsel’s unavailability.
[54] I pause here to observe that on March 15, 2020, due to the urgent public health crises caused by COVID-19, Chief Justice Morawetz closed the Superior Court of Justice in Ontario and adjourned all criminal matters that were scheduled in the Superior Court of Justice between March 17 and June 2, 2020. As a result, the trial scheduled for May 11, 2020 was adjourned and the trial was automatically adjourned to June 4, 2020.
[55] The effect of the pandemic is that the trial could never have proceeded on May 11, 2020 as scheduled. As a result the time between March 15 and May 11, 2020 could be viewed either as an exceptional circumstance from the pandemic or as defence delay. While there is little practical difference, in my view it is analytically preferable to include the time up to when defence was available for trial (May 4, 2020) as defence delay. I reach that view because while the pandemic and suspension of in person operations of the court was an unusual and exceptional event that began on March 15, 2020, it did not have any practical effect of delaying the applicant’s case until his scheduled trial date of May 11, 2020. As a result, I think the delay until the May 4, 2020 date when defence counsel was available for trial is better understood as defence delay attributable to Mr. Erickson’s lack of availability: R. v. Metatawabin, 2021 ONSC 7168 at paras. 15-16; R. v. Gutierrez, 2020 ONSC 6810 at para. 12; R. v. Khattra, 2020 ONSC 7984 at para. 70.
[56] I conclude that the delay from January 6 to May 4, 2020 is defence delay of 119 days.
g) April 6, 2021 - July 26, 2021
[57] The next period of defence delay alleged by the Crown is between April 6 and July 26, 2021, which relates to delay in setting the fourth trial date.
[58] As I discuss below, the May 11, 2020 trial could not proceed because of the court’s suspension of proceedings because of the pandemic. A third trial date was set for November 16, 2020. This was also adjourned because of the pandemic and a further order from the Chief Justice respecting jury trials. On November 13, 2020, the date when it was clear that a new trial date was needed, the court offered trial dates as early as April 6, 2021, when the Crown was available. Other dates were offered in May and June, 2021. The first date offered for which the defence had availability was July 26, 2021, which was set as the fourth trial date.
[59] The Crown says the 111 days from April 6 to July 26, 2021 are defence delay.
[60] The defence says that while he was unavailable during this period, the trial could not have proceeded in any event because there was a further suspension of jury trials because of the pandemic. He submits that the entire period of delay from November 16, 2020 to July 26, 2021 is an exceptional circumstance as a result of the pandemic.
[61] Again, while little ultimately turns on it, I conclude that the period from the first trial date that was available of April 6, 2021 until the later trial date was set to accommodate counsel of July 26, 2021 was 111 days of defence delay, and not delay as a result of the pandemic.
h) July 26, 2021 - January 17, 2022
[62] The final period of delay that the Crown submits is defence delay is from July 26, 2021 (the fourth trial date) to January 17, 2022 (the fifth trial date). The circumstances of this delay are as follows.
[63] On July 16, 2021, the parties appeared by videoconference for a trial readiness conference. Crown counsel indicated that the assigned Crown was ready to proceed, stating that the Crown had not filed a Seaboyer application and that it did not intend to lead evidence of the complainant’s consensual sexual activity with the applicant in the car ride prior to the alleged sexual offence. The Crown noted that the defence had not filed a s. 276 application either, which the Crown understood to mean that the defence was not seeking to cross-examine the complainant on this prior consensual sexual activity.
[64] Mr. Erickson said at the time, and submits now, that this surprised him. The case was adjourned for a further JPT before Durno J. on July 20, 2021, following which the defence applied to adjourn the trial.
[65] On July 23, 2021, Durno J. granted the adjournment. In his decision, Durno J. provided an overview of the allegations and observed that the preliminary inquiry in the case had been conducted before the Supreme Court of Canada trilogy of cases that addressed sexual assault prosecutions and s. 276 applications (R. v. Barton, 2019 SCC 33; R. v. Goldfinch, 2019 SCC 38; R. v. R.V., 2019 SCC 41). He acknowledged that the preliminary inquiry may have proceeded on the basis of a continuous course of conduct that included the sexual activity in the car. He confirmed that there had been no discussion about this sexual activity at the pretrial. However, he found that it was now clear that the assigned Crown intended to prosecute on the basis of the alleged sexual assault occurring after arrival at the building where the accused lived, and that the Crown position was that a s. 276 application would be required for any evidence of sexual activity in the car ride before to be admissible.
[66] In granting the adjournment, Durno J. agreed with the Crown that after the trilogy, all counsel had been required to assess their cases. It appeared to him that the Crown had not done so promptly and had only advised the defence of his view until late in the process. At the same time. Durno J. observed that the defence had some responsibility and, not having received what counsel asserted was the anticipated Crown s. 276 application, that Mr. Erickson should have realised that there was an issue. Durno J.’s concern about the case going to trial with this issue unresolved favoured an adjournment.
[67] On the adjournment application, the defence also raised a disclosure issue relating to the notes of Officer Lucas. These two pages of notes are said by the defence to be critical to its s. 10(b) Charter motion. Durno J. stated that he would not have adjourned the trial on the basis of late disclosure of these notes, regrettable as it was.
[68] Durno J. concluded:
I find that in all of the circumstances, the adjournment is certainly largely driven by the fact that one counsel, who has been on for quite some time, simply assumed that there was going to be an application that never arrived and was then left in a position of not being able to proceed.
[69] On August 5, 2021, a JPT was conducted in which the defence indicated that a s. 11(b) motion would now be argued. Both the defence s. 276 application and a new trial date needed to be scheduled. While the court offered trial dates on September 22 and December 6, 2021, neither the Crown nor the defence were available. The fifth trial date was scheduled for January 17, 2022.
[70] It is the defence position that the adjournment of the trial was caused by the Crown’s failure to communicate its position as to how it particularized the offence and intended to prosecute the case.
[71] The Crown position is that there has been no change in how the case was being prosecuted. Ms. Scully points out that at the preliminary inquiry, it was not the Crown that sought to adduce the evidence of what had happened in the car as evidence of a continuing offence. The Crown merely filed the complainant’s statement. In the statement, the complainant said that everything was consensual in the car. Later, it was a different Crown assigned to conduct the trial. In anticipation of doing so, he reviewed the case and, in light of the Supreme Court of Canada trilogy, appreciated the issue and decided not to bring a s. 276 application. Ms. Scully accepts that the defence was entitled to bring the s. 276 motion, but says that doing so on the eve of trial caused the delay of the trial.
[72] In assessing whether delay is defence delay, consideration must be given to the substance and process of the defence conduct. In R. v. Cody, 2017 SCC 31 at paras. 32-33, the Court held:
[33] Defence conduct encompasses both substance and procedure. The decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [Emphasis in original.]
[23] …Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advance their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and … us[e] court time efficiently”. (Jordan at para. 138)
[73] I cannot accept Mr. Erickson’s position. First, he says he was completely surprised by the Crown having changed its theory. But it was always the Crown theory that the activity in the car was consensual and not part of the sexual offence charged. I see no change in theory on this record. Second, Mr. Erickson says that he had expected the Crown to bring a s. 276 application so that it could elicit what happened in the car. There is nothing before me to support any reasonable basis for counsel having held this belief. I have found nothing in the record to suggest that the Crown ever planned to bring a s. 276 application to adduce what happened in the car. Nor would it have made sense for the Crown to do so.
[74] The record strongly suggests that it was not until July 16, 2021 at the trial readiness date, when the Crown spelled out its position on the s. 276 issue, that Mr. Erickson first appreciated that if he wanted to be able to cross-examine the complainant about the sexual activity in the car, the law required him to bring a s. 276 application. I cannot conclude on this record that counsel’s failure to advert to this important legal issue earlier was reasonable in all of the circumstances. While the choice to bring the s. 276 application was not unreasonable (despite the fact that it was dismissed), the timing of defence counsel recognizing this important legal issue, only ten days before trial, means that the delay caused by seeking and obtaining an adjournment of the fourth trial is defence delay.
[75] Accordingly, the delay from the July 26, 2021 trial date to the new trial date of January 17, 2022 is defence delay of 175 days.
i) Conclusion on defence delay
[76] The total delay attributable to the defence in the Superior Court is 548 days: September 14 to November 16, 2018 (63 days); December 20, 2018 to November 4, 2019 (80); January 6 to May 4, 2020 (119 days); April 6 to July 26, 2021 (111 days); and July 26, 2021 to January 17, 2022 (175 days).
ii) What is the net delay?
[77] The Net Delay is the total delay (1762 days) less the defence delay in the Ontario Court of Justice of 26 days and the delay in the Superior Court of Justice of 548 days. The net delay is thus 1188 days (or 39.057 months: R. v. Shaikh, 2019 ONCA 895; R. v. Chung, 2021 ONCA 188).
[78] This is presumptively unreasonable. As a result, it falls to the Crown to establish the presence of exceptional circumstances (Jordan, para. 47). The Crown submits that the COVID-19 global pandemic is an exceptional circumstance, and thus a discrete event as a result of which a number of periods of time must be deducted.
iii) Is the COVID-19 pandemic an exceptional circumstance and, if so, how much delay is attributable to it?
[79] Counsel agree that the COVID-19 pandemic is a discrete event that should be characterized as an exceptional circumstance. They differ respecting how much of the delay results from the pandemic.
[80] Exceptional circumstances lie outside the Crown’s control in that:
they are reasonably unforeseen or reasonably unavoidable, and
Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.
[81] There can be no question that the global pandemic has had, and will continue to have, far reaching impacts on the administration of justice in Ontario. It is, without doubt, the sort of discrete exceptional circumstance described in Jordan. That said, as has been recognized by other courts, the existence of the pandemic does not, alone, justify delay. It is for the Crown to demonstrate that but for the pandemic, earlier dates would have been obtained and the case would have been tried more quickly: R. v. Schardt, 2021 ONSC 3143 at para. 63; R. v. Kaur, 2021 ONSC 7519 at paras. 39-41: R. v. Simmons, 2020 ONSC 7209, at para. 63.
[82] When an unforeseen event like the pandemic occurs, there is an obligation on the Crown to take reasonable steps to try to avoid and address the delay. Examples of the sorts of steps include: “prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means” (Jordan at para. 70).
[83] I will address the periods of delay which are submitted to be attributable to the pandemic.
a) May 11, 2020 - November 16, 2020
[84] The first period of time that counsel agree is exceptional and attributable to the pandemic followed the closure of the courts and suspension of jury trials when the pandemic began in Canada. As I have indicated, Chief Justice Morawetz directed on March 15, 2020 that all jury trials were suspended. On April 20, 2020, the Chief Justice issued Notice to the Profession that the Ontario Superior Court of Justice would not recommence criminal or civil jury selection or jury trials until September 2020. In Brampton, cases that had been adjourned to September 2020 by the Chief Justice were to be addressed prior to that date by audio conference. This case was, as a result of the presumptive adjournment, adjourned to September 17, 2020.
[85] Proactive steps were taken by the Crown to try to re-schedule this matter. On June 8, 2020, the assigned Crown, Ms. Nadler, sent an email to defence counsel asking for available dates for a further JPT. Defence counsel suggested June 16-19, 24-25 or July 3, 2020. Immediately after hearing back, Ms. Nadler asked for dates from the Trial Coordinator and was offered June 17, 2020.
[86] A telephone JPT was held on June 17, 2020, although there is no transcript for that hearing. The defence confirmed that there was no prospect for re-election and the matter was adjourned to June 25, 2020 for a further JPT. Mr. Erickson did not call into that JPT for personal reasons. Again, there is no transcript of it. Following this, on July 9, 2020, an email was sent to counsel that included the following:
As the courts move towards re-opening, Justice Durno has directed that several assignment courts will be virtually re-setting these affected trials, sentencings and set date appearances because of the court’s suspensions. His Honour has asked the Crown’s office to assist by ascertaining counsel’s availability to address their matters. The Crown is prioritizing the hundreds of cases that were remanded and suggest the following dates and times for your matter. We’d encourage you to choose as early a date as possible.
[87] In that email, counsel was offered JPT dates with various times on any of July 13, 14, 15, 16, 20, 21, 22, 23 and 27, 2020. On July 14, 2020 Mr. Erickson responded that he was available on July 23 or 27, 2020. A JPT was scheduled for July 23, 2020. At that appearance, the Crown indicated that this case was a priority. The court offered the date of November 16, 2020 for trial, which was set for trial for the applicant alone (and not for Mr. Al-Dishagli).
[88] The defence says that the period from March 15 to September 8, 2020, the date it says the court re-opened for jury trials in Brampton, is delay resulting from the exceptional circumstances of the pandemic. The defence position is that the Crown’s failure to prioritize the trial in July 2020 means that the delay from September 8, 2020 until the November 16, 2020 trial date falls within the Jordan ceiling.
[89] The Crown says that all of the delay up to the November 16, 2020 trial date was reasonable given the volume of cases that needed to be re-scheduled as a result of the pandemic.
[90] The real issue is about the delay between the re-opening of jury trials in September [4] and the November 16, 2020 trial date.
[91] In my view, the record reflects that the Crown made this case a priority and that the Crown’s office took proactive steps to ensure that this case was quickly assigned a new trial date. Indeed, at the July 23, 2020 appearance, the Crown Attorney indicated that if it was necessary to do so to facilitate the earliest offered trial date, a new Crown would be assigned to the case. There were, of course, many cases that needed to be accommodated once the courts re-opened, including cases in which accused persons were in custody. A reasonable time period was needed for all of the priority cases to be re-scheduled. The Court of Appeal has observed that “no case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen, 1996 ONCA 4011, 110 C.C.C. (3d) 331 (Ont.C.A). If ever this were true, it was as jury trials had to be re-scheduled in the initial post-pandemic period after the courts re-opened for jury trials in the fall of 2020.
[92] Several courts have considered the issue of whether the time from the re-opening of the courts until the first trial date is properly understood as time within the Jordan ceiling, or as a continuation of the discrete exceptional events of the pandemic. When the Crown gives the case attention and the trial is reasonably scheduled, the weight of authority suggests that the exceptional circumstances continue to the new trial date: Metatawabin, at para. 26; Simmons, at paras. 68-74; 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; R. v. Khattra, at paras. 80-82.
[93] It was entirely reasonable for the court to schedule the trial for November 16, 2020, only two months after jury trials resumed in Brampton. As a result, the 189 day delay from May 11 to November 16, 2020 is attributable to the exceptional circumstances of the pandemic.
b) November 16, 2020 - April 6, 2021
[94] As I have indicated already, the trial did not proceed on the third trial date of November 16, 2020. There were several Notices to the Profession issued because of the pandemic. On October 9, 2020, the Chief Justice indicated that new jury trials in Brampton were suspended for the next 28 days. On November 5, 2020, the Chief Justice announced that new jury selection and new jury trials would recommence in Brampton on November 16, 2020. However, just five days later, on November 10, 2020, the Chief Justice announced that the public health situation had so deteriorated that new jury trials would not commence in Brampton until at least November 30, 2020. On November 21, 2020, the Chief Justice issued a Notice to the profession that there would be no new jury selection, except in “green zones” until at least January 4, 2021. At that time, Peel was under lockdown.
[95] This deterioration in the public health situation necessitated the adjournment of the November 16, 2020 trial date. The first new trial date offered to the parties on November 13, 2020 was April 6, 2021, a date on which the Crown was available. As I have already explained, the trial date was set for July 26, 2021. I have already concluded that the delay from April 6 to July 26, 2021 was delay caused by the defence.
[96] No reasonable objection can be taken with the conclusion that the delay from the November 16, 2021 scheduled trial date to the first new date offered for trial, April 6, 2021 resulted from the pandemic.
[97] The Crown took proactive and appropriate steps to deal with this delay, including, after ascertaining that the defence would not re-elect a judge alone trial, having a new trial date set just three days after it was clear that the scheduled trial was not going to be able to proceed. This 142 day delay resulted from the exceptional circumstance of the pandemic.
c) January 17, 2022 - May 16, 2022
[98] I have already set out that the trial did not proceed on July 26, 2021 and held that the delay to the next trial date, January 17, 2022, was defence delay.
[99] On September 22 and November 12, 2021, the defence s. 276 application was heard by me as case management judge. I released my decision on November 22, 2021. At that point, the trial remained scheduled for January 17, 2022.
[100] On December 17, 2021, the Chief Justice released a Notice to the Profession that, effective December 20, 2021, the Court would not commence any new jury selection in any court before February 7, 2022. The evidence shows that on that day, the Crown emailed defence counsel to see if there was any possibility of a re-election to a judge alone trial. There was not. As a result, counsel agreed that the January 4, 2022 appearance, which had originally been scheduled for the s. 11(b) application, would be used to re-schedule the trial.
[101] While no transcript has been provided, the parties appeared by videoconference before Durno J. on January 4, 2022. The January 17, 2022 trial date was adjourned and the new date of May 16-24, 2022 was set as the sixth trial date. March 22 and 29, 2022 were set for pre-trial motions relating to the admissibility of the accused’s statement.
[102] On January 22, 2022, after the new trial date had been set, a Notice to the Profession was issued extending the suspension of new jury selection in any court until February 28, 2022. Brampton did not begin new jury trials until March 7, 2022.
[103] It is the Crown position that the delay from the January 17, 2022 trial date to the new trial date of May 16, 2022 is as a result of the exceptional circumstances caused by the pandemic.
[104] The defence says that the delay from January 17, 2022 to the expected re-opening of the courts for jury trials on February 25, 2022 was as a result of the pandemic. However, counsel submits that the delay after this is all time that falls within the Jordan ceiling because the Crown chose not to prioritize this case.
[105] I reach the same conclusion for this disputed period as I did respecting the delay between September 14 and November 16, 2020. This is delay that occurred in the time after the courts had re-started jury trials, but had the applicant’s case had not yet been reached. It is my view that the effects of the exceptional events of the pandemic, and the need to re-schedule a huge number of trials, means that the Jordan time does not begin again on the date the courts re-opened. Rather, if the Crown can demonstrate that it took reasonable and proactive steps to re-schedule the case, the exceptional circumstances exception continues to the new trial date. To suggest that the administration of justice could accommodate all of the affected trials immediately is ludicrous. I find, instead, that as long as the trial is re-scheduled during a reasonable period after the re-opening, the delay to the trial date is as a result of the pandemic. In this case, the scheduling of the trial less than three months after the re-opening of the courts, is entirely reasonable.
[106] As a result, the delay from January 17 to May 16, 2022 (119 days) is properly understood as being from the exceptional circumstances of the pandemic.
d) Conclusion on exceptional circumstances delay from the pandemic
[107] The total delay resulting from the ongoing exceptional circumstances of the pandemic is 450 days (May 11 to November 16, 2020 (189 days); November 16, 2020 to April 6, 2021 (142 days); and January 17 to May 16, 2022 (119 days)).
iv) What is the Remaining Delay?
[108] The Remaining Delay is calculated by subtracting from the Net Delay the delay caused by discrete events. In this case, the Net Delay was 1188 days. The delay from discrete event of the pandemic is 450 days. The Remaining Delay is, therefore, 738 days or 24.26 months. [5]
v) Has the defence demonstrated that the delay is unreasonable?
[109] If the Remaining Delay is below the presumptive ceiling of 30 months, as is the case here, the onus shifts to the defence to show that:
(1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and
(2) that the case took markedly longer than it should have.
[110] The Supreme Court has made clear that stays beneath the ceiling are expected to be rare, and limited to clear cases: Jordan at paras. 48 and 82-83.
[111] I am not satisfied on this record that the applicant has taken meaningful and sustained efforts to expedite the proceedings. In reaching this view I observe:
- While the applicant was diligent in retaining counsel initially, during the period between September 2018 and April 2019, the record reflects that he was seeking to retain counsel and that there were, as a result, what I have concluded were defence delays;
- Frequently, when it was time to schedule new trial dates, counsel for the applicant was not available on the first dates offered and the delay in setting the trial date has been found to have been defence delay;
- When there have been opportunities for the defence to move quickly to secure trial dates, those opportunities were not always taken. For instance, on July 9, 2020, when counsel was advised that this case was a priority for the Crown and was urged to arrange a JPT soon to fix a new trial date, counsel did not respond for five days, and chose not to have the JPT on the first 7 days offered (between July 13 and 22), selecting instead July 23, 2020 the second last date (of 9) offered. This may explain why the trial date that was offered was on November 16, 2020 rather than an earlier date that might have been available at an earlier JPT;
- On November 24, 2020, when the fourth trial date was set for July 26, 2021, counsel was advised that earlier dates were available and that if his schedule opened up, he could seek an earlier date. An earlier date was not requested;
- The adjournment of the July 26, 2021 was because counsel had not appreciated the legal significance of the trilogy of cases from the Supreme Court of Canada that necessitated a s. 276 application in the event that the defence wished to seek permission to cross-examine the complainant on the sexual activity in the car;
- The applicant has repeatedly been offered the opportunity to have an earlier trial were he to re-elect a judge alone trial. He has declined to do so, knowing that this choice would mean further delay because of the health concerns that arise with jury trials during a global pandemic.
[112] In assessing whether the case has taken markedly longer than was reasonably required, Jordan instructs that there is no precise calculation to be done and that what is required is to step back from the minutiae and take a bird’s eye approach.
[113] This case has, unfortunately, lost three of the five vacated trial dates because of court mandated suspension of jury trials for health concerns flowing from COVID-19. The pandemic meant the loss of the May 11, 2020 second trial date, the loss of the November 16, 2020 third trial date and the loss of the January 17, 2022 fifth trial date. But for the pandemic, this trial would have been completed in May 2020, 34 months after the charge, and if defence delay is accounted for, under the 30 month ceiling. The pandemic changed everything. Given the public health crises that has existed in this jurisdiction, and this country, over the past two years, the applicant has failed to demonstrate that this case has taken markedly longer than was reasonable.
E. Disposition
[114] The application is dismissed.
J.M. Woollcombe J.
Released: March 21, 2022
COURT FILE NO.: CR -18 -1215 DATE: 2022 03 21 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – OMAR Al-RUBAYE Applicant REASONS FOR JUDGMENT Woollcombe J.
Released: March 21, 2022
[1] This is not the subject of a charge. It is presumptively inadmissible and was the subject of a s. 276 application brought by the defence and dismissed by me on November 22, 2021. It is relevant because the delay caused by the timing of this application is the subject of dispute between the parties.
[2] I offer as some evidence of this that when new trial dates were repeatedly needed in this case, the court was able to offer dates much earlier than 11 months out. For instance, when the November 25, 2019 was vacated, the court offered trial dates as early as January 6, 2020; when the July 26, 2021 trial date was vacated, the court offered, on August 5, 2021, trial dates in September and December 2021; when the November 16, 2021 trial date was vacated, the court offered, on November 13, 2021, a trial date of April 6, 2021; when the January 17, 2022 trial date was vacated, the court offered a trial date of May 16, 2022
[3] While Mr Erickson says that the Crown had changed its position, the record before me does not support Mr. Erickson’s view that the Crown was planning on tendering his client’s statement. The transcript of the December 20, 2018 appearance (at which Mr. Erickson was not present) reflects that, in response to questions posed by counsel for the co-accused, the Crown position was that the Crown would be leading the statement of the co-accused and would be using the applicant’s statement only for cross-examination.
[4] While the defence suggests that jury trials resumed in Brampton on September 8, that did not actually happen until September 14, 2021.
[5] Even if the entire delay caused by Mr. Erickson’s unavailability for trial between December 20, 2018 and November 4, 2019 were included in the Jordan ceiling (rather than than 80 days being defence delay, as I have found) the Remaining Delay would still be 818 days, or 26.89 months, well under the Jordan ceiling.