COURT FILE NO.: CR39-20
DATE: 20220407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EMILY BOTSFORD and DANIEL MCLEOD
Defendants
Ives, D., for the Crown/Respondent
Luscombe T., for the Defendant/Applicant Botsford
Snow, G., for the Defendant/Applicant McLeod
HEARD: April 4, 2022, via Zoom
TRANQUILLI J.
[1] The applicants were arrested on January 2, 2019, on charges of possession of fentanyl and cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] The anticipated completion date of their trial is October 26, 2022. This 1393 days, or 45 months and 23 days from when they were charged. This exceeds the presumptive ceiling of 30 months for cases going to trial in the superior court as established in R. v. Jordan, 2016 SCC 27 at para. 46. In this case, the presumptive Jordan date was July 2, 2019.
[3] The applicants apply for a stay of proceedings under s. 24(2) of the Charter. They claim their s. 11(b) Charter rights to trial without reasonable delay is breached.
[4] At issue is the determination of net delay due to defence delay and the determination of the remaining delay due to exceptional circumstances.
[5] The material issues with respect to the calculation of net delay relate to whether there was delay caused solely or directly by the defendants and if so, the calculation of that delay on either an individual or communal basis. The “exceptional circumstances” in issue turn in large part on the impact of COVID-19 and the illness of the judge previously assigned to this matter. There is no dispute that these two discrete events are exceptional circumstances. However, the parties disagree on whether the Crown has demonstrated it took steps to reasonably remedy the delay and if so, the amount of delay that is properly attributable to each circumstance.
[6] These reasons are released on an expedited basis to the parties in advance of other Charter applications scheduled to commence next week, depending upon the disposition of this application. This decision is therefore subject to further reasons as I may provide in my discretion.
Issues
[7] My analysis of the delay is informed by the well-settled framework outlined in R. v. Coulter, 2016 ONCA 704 at paras. 34-40. There is no doubt the delay exceeds the presumptive ceiling. The parties agree that the case is not particularly complex to justify the delay. The main questions that arise on this application are:
What is the amount of defence delay to be deducted from the total delay?
What period(s) of delay should be deducted from the net delay due to exceptional circumstances?
Background
[8] A detailed chronology of this matter is attached as an appendix to these reasons, and which informs my analysis. For context, the salient details are as follows.
[9] The defendants were arrested on January 2, 2019. Their arrests followed an investigation that started in November 2018 and ended with search warrants and the seizure of at least 721 grams of fentanyl, 34 grams of cocaine, drug paraphernalia and quantities of cash.
[10] A pre-trial in the Ontario Court of Justice was held on June 3, 2021. The matter was then adjourned to June 12, 2021, for a further pre-trial.
[11] The preliminary hearing was scheduled to be completed in one day on September 17, 2019. This had to be continued on October 7, 2019, as there was one more police witness to be cross-examined. The October continuation date was then adjourned to January 8, 2020, due to a death in the witness’s family.
[12] A judicial pre-trial in the Superior Court of Justice was set for March 3, 2020, following the defendants’ committal. That pre-trial was cancelled due to late filing by one of the defendants and was rescheduled to April 1, 2020.
[13] COVID-19 then arrived. By order of the Chief Justice, all criminal matters of any type scheduled to be heard between March 17 and June 2, 2020, were adjourned. This included the judicial pre-trial scheduled in this matter for April 1, 2020. High-priority non-trial matters were heard. By further notice of April 20, 2020, the Chief Justice advised that given the on-going public health situation, the Ontario Superior Court of Justice would not recommence criminal or civil jury selection or jury trials until September 2020 at the earliest.
[14] The judicial pre-trial proceeded by way of teleconference on June 3, 2020. The parties estimated an eight-day jury trial with several pre-trial applications, including a multi-stage s.8, s. 9 and 10(b) Charter applications. At Assignment Court on July 14, 2020, the jury trial was set for June 7 to 16, 2021, with application dates set in November 2020 and February and April 2021.
[15] The first stage of the Charter application proceeded by Zoom on November 17, 2020. The presiding judge granted leave for the cross-examination of the affiants and sub-affiants of the Information to Obtain sworn to obtain search warrants. The examinations of the police officers proceeded by Zoom over three days between February 10 and 12, 2021. Four additional dates were set in March 2021 for the completion of evidence and argument.
[16] The judge became ill before those continued application dates could proceed. The March dates were vacated. The parties attended Assignment Court on March 9, 2021; at which time they were advised the judge had an unexpected medical issue. The application dates were rescheduled for April 2021 and the June 2021 trial date preserved.
[17] A medical report to the Regional Senior Justice on March 18, 2021, advised the judge would be off work until April 5, 2021. A follow-up medical report to the RSJ on March 31, 2021, advised the judge would remain off work until June 1, 2021. The parties were told by court administration that the April application dates could not proceed.
[18] The pandemic also continued to affect the scheduling of court matters throughout this period. Jury trials had resumed in September 2020; however, on November 21, 2020, the Chief Justice advised that effective November 23, 2020, and until at least January 4, 2021, jury trials would not proceed in any court location except those in a “Green Zone” as defined by the provincial government due to the ongoing health situation. There were no areas in the Southwest Region designated as a “Green Zone”. On December 14, 2020, the Chief Justice extended the jury trial suspension until January 29, 2021. On January 13, 2021, the Chief Justice continued the suspension until May 3, 2021, at the earliest.
[19] In London, the Local Administrative Justice managed these extensions of the jury suspension during this period by adjourning affected criminal jury trials to Special Assignment Courts at various intervals for the purpose of rescheduling those matters.
[20] By notice of March 17, 2021, the Chief Justice ordered that jury trials in the Southwest Region would commence July 5, 2021, at the earliest. By omnibus endorsement of March 18, 2021, the Local Administrative Justice therefore adjourned all criminal jury trials scheduled to commence in May and June 2021 to the special Assignment Court on April 9, 2021.
[21] Thus, this matter therefore came forward in a Special Assignment Court on April 9, 2021. The court advised counsel the assigned judge was on an unexpected medical leave of indefinite duration. The court canvassed multiple dates amongst counsel to reschedule the application and trial dates. The application dates were eventually rescheduled for December 2021 and January 2022, with trial set for April 11 to 22, 2022. Counsel for the defendant McLeod then requested an 11(b) pre-trial to address delay. A colloquy ensued with the court; the result of which counsel was instructed to attend a future court date to request the pre-trial.
[22] A medical report of June 1, 2021 advised the Regional Senior Justice that the assigned trial judge would remain off work until September, 2021. In September 2021, the Chief Justice extended the judge’s leave until November 2021.
[23] In mid-November and early December 2021 defence counsel asked the trial coordinator to confirm the assigned judge would be hearing the application scheduled for December 2021. The trial coordinator acknowledged these inquiries but did not ultimately respond.
[24] By order of December 8, 2021, I was appointed by the Regional Senior Justice to be case management judge. On December 12, 2021, a medical report to the Regional Senior Justice suggested a gradual part-time return to work no earlier than late February or early March 2022.
[25] The parties sought clarification on my role as case management judge and whether the previously assigned judge would preside at trial. A case management conference on December 16, 2021 at the Crown’s request. The defendants took the position I could not continue the Charter application in mid evidence. The prospect of an application for mistrial was raised if the former judge would not continue. I advised I would review the matter and vacated the December 2021 application dates. I held a further case management conference on December 23, 2021, at which time the defendants confirmed they would apply for a mistrial as well as a stay on the basis of an 11(b) breach.
[26] On January 4, 2022, I advised counsel that the previously assigned judge would not preside at trial. I held a further case management conference on January 6, 2022, to canvass the possibility of rescheduling the pre-trial application dates so as to preserve the April 2022 trial dates. The Crown could accommodate dates with the police witnesses in March 2022; however, the defendants did not have sufficient dates available, such that the April 2022 trial dates would need to be vacated.
[27] At Assignment Court on January 11, 2022, the former April 2022 trial dates were used to set several application dates. Several new trial dates were offered by the court and reviewed with counsel. The trial was eventually rescheduled for October 2022. On January 26, 2022, I declared a mistrial on consent of the parties. The previous judge’s step 1 Garofoli ruling was preserved pursuant to s. 653.1 of the Code and the Garofoli application is to recommence at the second-stage of the application.
Positions of the Parties
[28] The parties agree on the law regarding 11(b) Charter delay. The application of those principles to these facts is contentious.
[29] The defendants submit the almost 46 months it will take to bring this matter to trial is demonstrative of a problematic culture of complacency or defeatism towards delay in this court. This was cautioned against in Jordan and a stay of proceedings should follow. The defendants challenge the basis for any defence delay. To the extent there may be defence delay, they submit it should be only individually, not communally deducted. The applicants acknowledge the COVID-19 pandemic and the judge’s illness are “exceptional circumstances”. However, they contend the Crown and justice system should have been capable of prioritizing cases that have faltered due to these unforeseen events and submit there no evidence that the Crown took steps to mitigate the delay. In any event, the defendants submit the net delay remains in excess of the presumptive ceiling even with allowing a reasonable reduction in the delay in which the Crown could have mitigated the effects of these events.
[30] The Crown submits this is not a case about Crown or institutional complacency. The timeline of this matter involves defence delay and exceptional circumstances that sidetrack trials despite the best efforts of all parties. After deductions for defence delay and exceptional circumstances, the Crown submits the net delay is no more than 27.5 months; below the presumptive ceiling of 30 months.
Analysis
1. What is the amount of defence delay to be deducted from the total delay?
[31] Defence delay includes delay caused solely by the conduct of the defence. This kind of defence delay comprises those situations where accused’s acts directly caused the delay. The defence will also have directly caused the delay if the court and Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. A period of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable: Jordan, supra at paras. 63-64.
[32] The Crown submits there is defence delay to be deducted in respect of three periods: (i) the rescheduling of a judicial pre-trial in the OCJ; (ii) the rescheduling of a judicial pre-trial in the SCJ; and (iii) the unavailability of one or both defence counsel for new trial dates until October 2022. The Crown proposes a deduction of 17 days for the rescheduled pre-trials, attributed to the defendant Botsford on an individual basis and between 133 and 154 days for the unavailability of both defence counsel on dates earlier than the October 2022 trial date, deducted on a communal basis. I shall address each of these issues in turn.
(i) The OCJ Judicial Pre-Trial
[33] The OCJ judicial pre-trial for the defendant Botsford was held on June 3, 2019. The matter was before the provincial court the next day, to set a date for the preliminary hearing. However, duty counsel as agent for Botsford counsel requested an adjournment because a continued pre-trial was scheduled for the following week, at which time counsel hoped to set preliminary hearing dates. The Crown advised the court she understood the pre-trial had been held the day before; however, that defence counsel was not fully prepared, which was why they needed the new date. The preliminary hearing date was set 10 days later, on June 14, 2019.
[34] The Crown submits this is defence delay of 10 days was caused solely by the defendant Botsford which should be deducted from the total delay. The defendants submit it is not clear from the transcript as to what happened.
[35] I accept the Crown’s position that this is defence delay caused solely or directly by the defendant Botsford. The circumstances of the adjournment were conveyed to the court by the Crown as an officer of the court. There is no evidence contradicting that information. In the absence of any other evidence, in my view, I am entitled to rely upon it. As noted by the Crown, if the argument is that it is not clear what transpired at court that day, it remains the responsibility of the defendant to ensure the agent was fully instructed. The continuation of the pre-trial, as requested by the defendant, directly delayed the scheduling of the preliminary hearing. This defence delay is attributed to the defendant Botsford and will be deducted on an individual basis.
(ii) The SCJ Judicial Pre-Trial
[36] The Superior Court of Justice judicial pre-trial was to have been held on March 3, 2020; however, was cancelled due to late filing by the defendant Botsford. The parties attended Assignment Court on March 10, 2020, and the pre-trial was rescheduled to April 1, 2020. This would have amounted to 28 days of defence delay; however, the courts closed on March 17, 2020, due to the pandemic. The Crown submits the actual defence delay is therefore reduced to 7 days between March 10 and March 17, 2020, with the balance of the delay subsumed by the pandemic and to be considered in the context of “exceptional circumstances”.
[37] The defendants submit the rescheduled pre-trial is not defence delay. The defendants argue the delay was caused by the court’s refusal to conduct the pre-trial even though the forms were filed, albeit late. The parties were prepared to proceed. The delay was compounded through this court’s local practice of only allowing the pre-trial to be scheduled through the once monthly Assignment Court.
[38] I accept the Crown’s position that it is reasonable to deduct 7 days for defence delay in the circumstances. The need to reschedule the pre-trial arose solely or directly from the defendant’s late filing of her pre-trial form and delayed the pre-trial. The Criminal Proceedings Rules for the Superior Court of Justice (Ontario) provide that the pre-trial forms are to be filed not later than 10 days in advance of the pre-trial. The local practice is to accept the forms up to two days before the pre-trial and is therefore more generous to counsel than the province-wide rule. It should not be contentious that defence delay is found where it arises in situations where the defence failed to comply with the rules: R. v. Porter, 2016 ONSC 7173 at para. 41. Any criticism of the local rules and scheduling practices are more properly addressed though other means. This delay of 7 days was also caused solely and directly by the defendant Botsford and will be treated on an individual basis.
(iii) Unavailability of Defence Counsel on Earlier Trial Dates in 2022
[39] At the case management conference on January 6, 2022, the court offered new dates to potentially renew and complete the pre-trial applications before me and in advance of the April 2022 trial date. Neither defence counsel had sufficient dates available. The Crown and police witnesses were available in March 2022.
[40] The parties therefore attended Assignment Court on January 11, 2022, to set new application and trial dates. The court offered the following new dates for trial: May 16 to 26, 2022, June 6 to 15, 2022, September 12 to 21, 2022 and October 3 to 13, 2022.
[41] Other than October 3 to 13, 2022, the Crown and police witnesses were available for the other dates. Counsel for the defendant Botsford was available for two of the four earlier dates offered. Counsel for the defendant McLeod was not available for any of the earlier dates offered.
[42] Ultimately, the trial was set for October 17 to 28, 2022.
[43] The Crown submits the unavailability of one or both defence counsel between May 16 and October 17, 2022, or June 6, 2022, to October 17, 2022 results in between 154 or 133 days of communal defence delay. The alternative amounts of delay depend on whether the court is of the view it was reasonable to propose a May trial date to the parties in January. If the court is of the view that June 2022 was more reasonable notice in the circumstances, this would mean 133 days of communal delay. The Crown argues it is appropriate to assess this delay on a communal basis given the co-accused have been approaching the trial with the same strategy, including on this application. Further, the current trial date is as a result of defence counsel’s conflicting schedules throughout the several dates offered and for which the Crown and court were otherwise available.
[44] The defendants submit none of this time should be treated as defence delay since the need to reschedule arose from the Crown and institutional failure to mitigate the delay caused by the judge’s ongoing absence. Further, some of the new dates were given on short notice. The Court must consider all the circumstances to determine whether the delay was caused solely by illegitimate actions of the defence. The defendants also submit that at most, a delay of 97 days should be attributed to only the defendant McLeod. The defendant Botsford was available on the May 2022 trial dates. Although the defendant McLeod was not available for the May 2022 trial dates, he offered August 2022. The defendants refer to decisions such as Cody and R. v. Safdar, 2021 ONCA 207 as supporting the argument that this delay does not arise from defence counsel unavailability but institutional limits.
[45] The defendants contend this is not a case where the court can allocate defence delay on a communal basis. In keeping with Jordan, an individualized approach should be taken to the attribution of defence-caused delay in cases of jointly charged accused: R. v. Gopie, 2017 ONCA 728 at para 128. Although subsequent appellate decisions hold there are circumstances where defence-caused delay can be communally attributed, the defendants urge me to find the facts of this matter are readily distinguishable. The defendants also contend this approach to communal attribution would result in an ironic “work-around” to the Jordan framework to increase the presumptive ceiling in cases of co-accused. The Jordan framework already contemplates that issues that may relate to multiple accused are addressed within the rubric of complexity; however, there is no complexity here, as already acknowledged by the Crown.
[46] I will deal first with: (a) Is defence delay to be deducted; and (b) If so, is the delay to be deducted on a communal basis?
(a) Is defence delay to be deducted?
[47] I do not see a rational basis for overlooking defence unavailability for new trial dates earlier than the current trial date in October 2022. This disregards the Jordan framework and would have the effect of extending the anticipated trial date without then accounting for the reasons that contributed to the scheduling of that trial date. The Jordan framework imposes an obligation on all actors in the criminal justice system, including defence counsel, to alleviate the delays. Jordan makes it clear that the analysis starts with one first calculating total delay from the date of the charge to the anticipated end of trial. Then defence delay must be deducted. The remaining delay is then reviewed for whether it is above or below the presumptive ceiling: Jordan, supra at paras. 60, 66. Defence delay is a quantitative deduction of a particular period of time. It is not a qualitative assessment: R. v. Cody, 2017 SCC 31 at paras. 48, 64. In this case, the extent to which the Crown or justice system is to be criticized for delay or a failure to mitigate the delay that relates to the trial date is properly examined under the rubric of exceptional circumstances.
[48] This matter is factually distinct from the issues in Safdar, supra. In Safdar, the Crown contended the delay arising from a trial continuation should be attributed to the defence because in February 2018, the defence was unavailable for continuation dates offered by the court in April 2018. The Court of Appeal concluded the trial judge was entitled to conclude this delay was not caused by the defence. The continuation dates in issue were offered mid-trial on relatively short notice. Defence counsel agreed to all other dates that were offered, including other dates offered with little notice. Counsel were also legitimately unavailable on the April date in issue due to either another court matter or medical treatment: Safdar, supra, at para. 50.
[49] In contrast, this matter is not a trial continuation. The court offered earlier 2022 dates with notice of between four and five months. Unlike counsel in Safdar, the defendants in this matter had either conflicting or no availability for the other offered 2022 dates. Even assuming that there is a legitimate reason why counsel is not available for one of the dates offered, it makes little sense that counsel can repeatedly reject other dates on the same basis and avoid the defence delay calculus. To hold otherwise would lead to the result that a defendant represented by busy counsel has greater 11(b) rights than other accused.
[50] This matter is also factually distinct from the circumstances relied upon by the defendants in Cody, supra for the argument that their unavailability is the inevitable result of the court’s limitations. In Cody, the Supreme Court of Canada only deducted part of a five-month period of delay due to exceptional circumstances. The parties had been able to address the unforeseen event within two months of its occurrence. However, the trial court could not accommodate them until three months later. The appellate court held that this portion of delay was a product of systemic limitations in the court system and not the discrete event: Cody, supra at paras. 53-55. In contrast, here, the court did offer earlier dates in 2022 for which one or both defendants were unavailable. The earliest trial date offered would have been only one month later than the April 2022 trial dates that were vacated. As I will also address later in these reasons, to the extent the complaint may be that there were insufficient earlier dates to offer, I find that this is not a product of systemic limitations. Rather, it is the direct result of the pandemic and the need to address the backlog of cases.
(b) Is the delay to be deducted on a communal basis?
[51] I also find that a “communal approach” to this portion of defence delay is appropriate in the circumstances. I accept the Crown’s observation that the defendants’ position would arguably set a new standard for co-accused who would have an unreasonable advantage over a sole accused simply due to conflicting schedules.
[52] It would appear the individual approach in Gopie, supra has been modified by other decisions which have advocated a communal or collective delay approach in the appropriate circumstances: R. v. Albinowski, 2018 ONCA 1084 at paras. 37-39; R. v. Pauls, 2020 ONCA 220 at para. 50; R. v. Rouse, 2020 ONSC 6162 at para. 70. Most recently, the Supreme Court of Canada chose to “leave for another day” the issue of communal versus individual delay when assessing defence delay under s. 11(b): R. v. Pauls, 2021 SCC 2 at para. 4.
[53] I conclude this portion of defence delay is appropriately analyzed on a communal approach. It is of note that the 11(b) application itself was brought on a joint or communal basis. The pre-trial applications are similarly on a collective basis. The delay in issue is due to scheduling challenges which arose directly and inevitably from the defendants’ joint situation. There are two accused to be tried with counsel unavailable for different parts of a particular delay period. Communal allocation avoids microscopic periods of delay, a practice of which the Supreme Court of Canada disapproved in Jordan: R. v. Pauls, 2020 ONCA 220 at paras. 50-53.
[54] In my view, the offer of the May 2022 dates, which the court and Crown said they could “make work” was made on reasonable notice in the circumstances, where all participants are encouraged to cooperate in fulfilling 11(b)’s objectives: Jordan, supra at para. 5. I therefore deduct 154 days from the total delay for defence delay on a communal basis.
[55] In summary, the net defence delay for the defendant Botsford is 1222 days, or 40 months and four days. The net defence delay for the defendant McLeod is 1239 days, or 40 months and 21 days. The net delay for each defendant remains presumptively unreasonable. The onus is on the Crown to rebut this presumption based on the presence of exceptional circumstances: Cody, supra, at para. 45.
2. What period(s) of delay should be deducted from the net delay due to exceptional circumstances?
[56] “Exceptional circumstances” lie outside the Crown’s control where: (i) they are reasonably unforeseen or reasonably unavoidable; and (ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, supra at para. 68. The delay caused by discrete exceptional events or circumstances is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events: Jordan, supra at paras. 73 and 75.
[57] The Crown contends there are four exceptional circumstances that arose during this matter that rebut the presumption the net delay is unreasonable: 1. The preliminary hearing time estimate; 2. An unavailable witness; 3. The COVID-19 pandemic; and 4. The illness of the judge. I shall deal with each of these circumstances in turn.
(i) Preliminary Hearing Time Estimate
[58] The Crown submits counsel failed in their good faith efforts to accurately assess the time required for the preliminary hearing. The original estimate was 4 hours, whereas an additional day was required for the defendants to complete discovery of an important police witness. This amounts to 20 days of delay between the original preliminary hearing date of September 18, 2019, to the continuation date scheduled on October 7, 2019.
[59] The defence submits there is nothing exceptional about the preliminary hearing not being completed as originally scheduled. The underestimate was modest at best, and the additional day would not have caused delay had the witness been available to attend on October 7, 2019.
[60] I am satisfied the Crown has established the delay in completion of the preliminary hearing is an exceptional circumstance. The Court of Appeal has recognized that good faith, but mistaken estimates of trial time may give rise to exceptional circumstances. If the proceeding goes longer than reasonably expected, even where the parties made a good faith effort to establish realistic time estimates, then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance: R. v. McNeill-Crawford, 2020 ONCA 504 at para. 28. The defendants’ contention that the preliminary hearing could have been completed without causing delay is not persuasive. It was not, in fact, completed on that additional day. In any event, I agree with the Crown that even assuming the hearing was completed on October 7, 2019, it would have been too late to be listed for a first appearance in the SCJ assignment court that month. These circumstances reduce the net delay by 20 days due to exceptional circumstances.
(ii) An Unavailable Witness
[61] The Crown submits there is a further 93 days of delay due to exceptional circumstances encompassing October 7, 2019, to January 8, 2020. The remaining police witness was unable to attend the continuation of the preliminary hearing due to a death in his family. The Crown notes he was an important witness as he was the affiant that led to the search warrants. There appears to be no issue that this qualifies as an exceptional circumstance. Medical or family emergencies, whether on the part of the accused, important witnesses, counsel or the trial judge will generally constitute an exceptional circumstance: Jordan, supra at para. 72.
[62] The defendants acknowledge the officer’s unavailability on October 7, 2019, was unforeseeable and unavoidable. However, they submit there is no evidence the Crown took any steps to mitigate the delay from his unavailability or to demonstrate why a new date could not be accommodated any earlier than January 8, 2020. The court was able to reschedule the first continuation within 20 days of the first preliminary hearing date; whereas it was then rescheduled another 93 days later. If any time should be deducted for this circumstance, they submit it should be 20 days, being the period within which the Court already demonstrated it could accommodate the two-hour continuation. At most, the defendants would also accept 40 days as a reasonable estimate of the time in which the court should have been able to accommodate the two-hour continuation.
[63] Review of the transcript of the court attendance on October 7, 2019, confirms the court was told by the trial coordinator that the Crown would be requesting an adjournment because of a death in the family of the one remaining witness. The Crown confirmed this and advised the court: “I’m told a date has been chosen, January 8th.” Defence counsel confirmed the defence was not taking any position and confirmed for the court that the return date would be January 8, 2020.
[64] The defendants submit their acknowledgement of the new date cannot be treated as acceptance that January 8, 2020, was the earliest date available. They would be expected to not oppose the adjournment as a professional courtesy and their agreement to this date cannot be interpreted as confirming it was reasonable in terms of timing.
[65] It can be reasonably inferred from the transcript that there was consultation among counsel and the court about a continuation date. I acknowledge the defendants’ point that professional courtesy would expect their cooperation with the adjournment. However, this would not preclude defence counsel from raising a concern on the record about the timeliness of the new date if they had such a concern at the time. From counsel’s use of the term “chosen”, I infer dates were offered and that January 8, 2020 was selected without objection. I am satisfied the Crown acted promptly to secure a new date that was available with the court and that worked with counsel’s schedules, with no objection as to delay raised by the defendants at the time. The Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement: Cody, supra at para 54.
[66] In the circumstances, I am satisfied it is reasonable to deduct the complete period of 93 days arising from the adjournment between October 7, 2019, and January 8, 2020 due to the witness’s absence due to exceptional circumstances.
(iii) COVID-19 Pandemic
[67] The respondent claims the COVID-19 pandemic caused exceptional circumstances delay due to the closure of regular court operations, for a total of 110 days. The Crown measures the discrete period of delay from March 17, 2020, being the date of cessation of regular court operations to July 7, 2020, when the matter first came forward to Assignment Court for scheduling. The Crown excludes June 3, 2020, from this period because the court was able to conduct a judicial pre-trial by teleconference.
[68] The defendants acknowledge the pandemic was an unexpected and unforeseen event, (although they submit the court should have been able to recover far earlier). However, they submit the delay should be measured only with respect to the pandemic’s specific impact on this case. They submit this means the delay starts from the date on which the matter was scheduled to appear in Assignment Court on April 7, 2020, but for the court closure, and ends on June 3, 2020, when the judicial pre-trial was held. Application dates and trial dates were set at Assignment Court on July 14, 2020, and the application commenced in November 2020. The defendants submit this means 57 days should be deducted.
[69] The defendants rely on a recent Alberta Court of Appeal decision, R. v Ghraizi, 2022 ABCA 96. In Ghraizi, the court held that while counsel illness and COVID-19 were “exceptional circumstances”, the Crown failed to meet its onus of establishing it took reasonable steps to overcome any exceptional circumstance. In the court’s view, there was no evidence of mitigation efforts other than a “sense of defeatism” in the Crown’s argument there was nothing anyone could do to reschedule the matter for an earlier date due to the pandemic.
[70] With reference to Ghraizi, the defendants submit that acceptance of the entire period of delay proposed by the Crown would be acceptance of the “defeatism” argument that was soundly rejected by the appellate court.
[71] In my view, the reasoning Ghraizi does not apply to the context of this matter. That decision appeared to turn on the absence of any evidence regarding the impact of the pandemic beyond the fact of the court closure. Neither the trial judge nor the appellate court appeared to take judicial notice of the pandemic and its ongoing effects on the justice system and the government’s response to the pandemic.
[72] I view it appropriate to take judicial notice of the pandemic and its effects on our court, as has been done by several colleagues: R. v. Simmons, 2020 ONSC 7209, R. v. Dumphrey, 2021 ONSC 7758 and R. v. Khattra, 2020 ONSC 7894 are but a few examples. The Ontario Court of Appeal has also recognized that it falls within the accepted bounds of judicial notice to consider the fact of the COVID-19 pandemic, its impact on Canadians generally and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission: R. v. Morgan, 2020 ONCA 279 at para. 8. Although the court made those comments within the sentencing context, in my view the principles are consistent with taking similar judicial notice of the impact of the pandemic on the court system, along with justice participants’ efforts to mitigate its effects.
[73] The effects of the pandemic on the Superior Court of Justice and this court’s response are summarized earlier in this decision and in the appendix to these reasons. As noted in Simmons, supra at para. 70, the pandemic has had numerous and far-reaching impacts on the criminal justice system, which had to take measures to protect the health and safety of justice participants and the public. These measures included changes to physical courtrooms, the advent of virtual hearings and electronic filings and rescheduling existing hearings.
[74] I largely adopt the approach of my colleague in Simmons, supra at paras. 67-73 in the measurement of the pandemic as a discrete event. In Simmons, Justice Nakatsuru concluded the appropriate measure for exceptional circumstances of this nature was to deduct the entire time from the start of the impact of the pandemic on the courts to the date of the scheduled trial. On the facts of this matter, it would not be appropriate to measure the delay out to the anticipated trial date(s) as some procedural steps were accomplished and the matter was further complicated with the additional event of the judge’s illness.
[75] I therefore modify the application of the rationale in Simmons to measure the discrete event in this instance from the start of the court closure on March 17, 2020 to when the matter came to Assignment Court on July 7, 2020, with the exception of June 3, 2020, when the pre-trial was held. The date of closure of regular court operations on March 17, 2020 is also the appropriate starting point for the period of delay in this matter as the rescheduled judicial pre-trial was set to proceed on April 1, 2020 but did not due to the pandemic.
[76] The matter first came to Assignment Court on July 7, 2020. The transcript indicates the matter was adjourned one week at the court’s instigation as it would be a lighter list. My review of the audio of the complete proceeding that day indicates the matter came forward late in the day and was delayed several minutes in waiting for counsel for the defendant Botsford to join the teleconference. Counsel for the defendant McLeod proposed a one-month adjournment to August 2020. Botsford counsel then attended the court. The Local Administrative Justice noted there were several steps to schedule and determined a one-week adjournment was appropriate as it would be a lighter list. This would potentially raise an issue as to defence versus institutional delay or even an argument that the delay caused by COVID-19 should be extended another week. However, in fairness and in circumstances where only the partial transcript is part of the application record, I am satisfied that it is appropriate to consider July 7, 2020, as the end date to this discrete event. It marks when the court was first in a position to deal with scheduling the matter after the initial impact of the pandemic.
[77] Application and trial dates were subsequently set, one week later. The transcript of those proceedings shows the court was alive to the presumptive Jordan date of July 2, 2021 and offered a number of dates with that ceiling in mind. The Crown accommodated all dates offered for the application and trial dates. The main challenge to the scheduling was in building in time for the application dates and in coordinating with defence counsel’s schedules, mainly counsel for Mr. McLeod.
[78] I am satisfied the entire period of 110 days proposed by the Crown shall be deducted due to the exceptional circumstances exacted upon the administration of justice by the pandemic during that period.
[79] I am alive to the fact that I have used a date specific to the case on which to conclude the pandemic event for this period yet have used the general court closure date upon which to start the calculation. I do so as on the facts of this case there is another discrete event that follows the initial impact of the pandemic which must be addressed.
[80] In my view, this deduction of this discrete period of time as it relates to the pandemic does not foreclose on the consideration of the continued impact of the pandemic as one of the factors to consider in the court’s response to the judge’s illness, which I shall address next.
(iv) The Judge’s Illness
[81] The judge heard the initial Charter application on November 17, 2020 and granted leave for the cross-examination of several police officers. He heard three days of viva voce evidence on the next stage of the Charter application in February 2021 and scheduled further dates to continue that application in March 2021. He became ill and could not continue with the application dates set for March 2021.
[82] The court advised the parties the application dates needed to be rescheduled and returned the matter to Assignment Court on March 9, 2021. The application dates were rescheduled, and the June 2021 trial date was maintained. Those April dates were vacated when the court was informed the judge would remain off work until June 1, 2021. In Assignment Court on April 9, 2021, the court set application dates between December 20, 2021, and January 28, 2022, with trial for April 11 to 22, 2022.
[83] The Crown submits the application judge’s illness gave rise to delay caused by exceptional circumstances beginning on April 12, 2021, being the first date to which the application dates were adjourned due to the judge’s illness. The Crown submits this delay continued to either November 10, 2021, when the judge failed to return from his extended medical leave, or December 20, 2021, when the matter was next scheduled to be argued.
[84] This amounts to either 213 or 253 days to be deducted from net delay due to exceptional circumstances.
[85] The defendants initially contended in written submissions that no time should be deducted due to a lack of evidence of any efforts by the Crown and court to mitigate the delay arising from the judge’s illness. They amended their position to submit that no more than 60 days should be deducted for the judge’s illness. They argue this is a reasonable amount of time within which the court could and should have addressed the judge’s illness, such as by reassigning the matter eight months earlier than when it did in December 2021. It should have been plain and obvious by June 2021 that the judge’s leave was going to remain indefinite. They submit the court and Crown were defeatist, allowed the judge’s illness to take a “backseat” to the COVID delay. They contend the pandemic had nothing to do with this delay and the court failed to monitor and take reasonable steps to mitigate the delay arising from his absence.
[86] In particular, the defendants point to the colloquy with the Assignment Court judge on April 9, 2021 as evidencing a problematic and defeatist culture within this court. I have read the transcript and listened to the exchange. The applicants also played the audio excerpt of the colloquy during argument.
[87] The comments in issue arose in a Special Assignment Court convened to reschedule matters that had been adjourned due to the continued suspension of jury trials. Several sets of dates were reviewed before new trial and application dates were finalized, with the trial date rescheduled to one year later, in April 2022. Counsel for the defendant McLeod then requested a judicial pre-trial to address delay. The assignment court judge referred to the process they had just gone through in scheduling, asking “are you serious” and noted “we are in the middle of Covid.” The court stated that if defence counsel wanted to “play it this way,” the court would return to all the earlier dates that had been offered. Counsel indicated she would first review the matter with counsel of record and email the trial coordinator. The court directed that the 11(b) pre-trial request be made in open court and to be ready in future with earliest dates in all their matters. The defendants submit that this attitude has a chilling effect on counsel’s willingness to bring delay applications, a product of the culture that Jordan seeks to banish.
[88] With the benefit hindsight one can readily argue the judge’s absence could have been managed differently and identify opportunities for earlier intervention. I nevertheless reject the defendants’ position and find that the judge’s illness gave rise to delay in exceptional circumstances which the court made reasonable attempts to mitigate. Hindsight cannot be the standard through which to assess the court’s actions. The question is what was reasonably known and understood at the time of each step as it related to the judge’s illness.
[89] Notwithstanding the unprecedented limitations imposed by COVID-19, as of July 2020 the court was able to schedule the applications and trial to complete within a few weeks of the presumptive ceiling, in June 2021. This is not symptomatic of complacency or defeatism. However, two discrete and unforeseeable or unavoidable events occurred: 1. The judge’s illness; and 2. The further suspension of jury trials due to the COVID-19 delta variant, which vacated the trial date in any event of the judge’s illness.
[90] I do not accept the defendants’ position that the court unreasonably defaulted to the pandemic as a means of coping with the judge’s absence or that the pandemic had no bearing on this portion of delay. The trial and application dates were necessarily rescheduled in April 2021 because of both the suspension of jury trials due to COVID-19 and the assigned judge’s illness.
[91] At the April 9, 2021, Special Assignment Court, the trial date was rescheduled to April 11, 2022. That date was arrived at through identifying available court dates in the context of the growing backlog of cases caused by the pandemic, canvassing counsel’s availability, the number of pre-trial applications to schedule and the need to space those applications out. The court demonstrated efforts to mitigate delay by using the vacated June 2021 trial dates for the application. Multiple dates were offered.
[92] The judge was seized of the case at the time of his illness. The decision to replace a judge and recommence a proceeding is not to be taken lightly. The Supreme Court of Canada has recognized that while it can be safely said the Crown should bring an application to replace the judge when it is clear the judge will not recover or return to judicial duties, the matter is more difficult where the expectation is that a judge seized of the case will recover and return. The removal of a judge from an unconcluded case has the potential to interfere with the independence of the judiciary and the right of an accuse to a fair trial: R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 at para. 51.
[93] I do not accept the defendants’ contention that the judge should have been removed as early as June 1, 2021 and no later than September 1, 2021. The physicians’ initial reports predicted the judge’s return on a timeline that coincided with the amended case schedule, as impacted by the pandemic. As of June 2021, the court’s expectation, based upon medical advice, was the judge would resume his duties in September, well in advance of the next scheduled application dates. This would have been reasonable in the circumstances and in preference to having to remove the judge and restart the proceeding. Although the judge’s leave was extended in September, it was still in the expectation that the judge would be resuming duties by November 10, 2021, still in advance of the next application dates.
[94] Reasonableness under 11(b) has always accounted for the reality 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. K.G.K., 2020 SCC 7, at para. 61. This principle takes on added importance for a court faced with a backlog that is not of its own making, due to the pandemic. This court cannot reassign judges to cases at will. The pandemic with the consequent suspension of regular court operations, limited court operations and jury suspensions has created a backlog with a significant demand on judicial and court resources. The saga of the Superior Court’s efforts to hold jury trials in London is well summarized in RSJ Thomas’ reasons in R. v. Smith, 2021 ONSC 3322. Consider that no jury trials were conducted in this region between March 23 and September 2020; November 23, 2020 and August 2021; and December 17, 2021 and February 28, 2022 due to the evolving pandemic. My reassignment to this case resulted in a wholesale disruption to the judicial schedule which the court is still endeavouring to manage in order to give this case priority. Scheduling changes like this have a cascading effect on other cases throughout the region. Of course, reassignment is done when necessary, such as what happened in December 2021 when I was appointed as case management judge.
[95] In my view, nothing turns on the colloquy in the Special Assignment Court on April 9, 2021. The judge’s response does not demonstrate either a defeatist or a problematic culture within the court. The audio demonstrates the presiding justice was clear and direct in his concern about defence counsel first raising the issue of delay after the dates had been set. Yes, he was exasperated, but I do not understand his comments to foreclose a procedural discussion on delay; rather, it was the opposite. This matter came forward amongst many other matters that day where jury trials were adjourned by the Chief Justice’s order due to the pandemic. The rescheduling of the trial unfolded over approximately 34 minutes, due to coordinating the number of application dates and counsels’ availability. Numerous dates were offered over that half-hour. Defence counsel only then requested the 11(b) pre-trial after all the dates had been set.
[96] The defendant had failed to put the Crown and court on written notice of an intention to bring a 11(b) application. The defendants contend it would have been premature to request an 11(b) pre-trial without first knowing the specific trial date. I cannot accept that position in the circumstances. At that juncture in April 2021, it was already known that the trial could not be completed before the presumptive Jordan date, as originally scheduled because of the jury suspension. It would be critical for the Crown and court to know if delay was an issue before new dates were canvassed.
[97] Importantly, the judge did not refuse to schedule the pre-trial. His comments indicated his initial intention to revisit the schedule in an attempt to find earlier dates. Counsel then suggested she would first review the matter with defence counsel of record. The judge directed that any requests to schedule the pre-trial would need to be made in open court rather than in emails to the trial coordinator. The applicants did not revisit the issue until eight months later with this application.
[98] On this record I conclude it was not until the judge failed to resume his duties at the anticipated conclusion of his leave in November 2021 that the court was required to act in this matter. It did so with my appointment as case management judge. The court then offered new dates to preserve the trial date once put on notice of the issue of delay. The fact that these efforts failed does not render the conduct unreasonable. One can argue the court could have taken additional steps. However, the requirement is that of reasonableness: the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement: Cody, supra at para 54.
[99] The Crown alternatively submitted that delay during this period could be treated as 55 days of delay due the exceptional circumstances of the judge’s illness between April 12, 2021 and June 6, 2021, at which time the applications could have been rescheduled for the week of June 6, 2021, but for the defendants’ schedules. At the April 9, 2021 Special Assignment Court, the court first reviewed whether the vacated June 2021 dates could be used to schedule the Charter applications. The Crown submits the Crown and witnesses would have been available for continuation of the Charter application the week of June 6, 2021, but for one defence counsel releasing some dates once they knew jury trials were suspended. This then led to communal defence delay of 197 days between June 6 and December 20, 2021, which was the scheduled continuation date of the Charter applications due to the defendants’ conflicting schedules. However, the parties cannot agree on why the June 2021 trial dates could not have been used for the Charter application and whether, in fact, all the police witnesses were available. It would appear from an affidavit submitted by the Crown during argument that police witnesses were available. The defendants objected to this evidence and submitted it should be disregarded as hearsay. I noted the issue had only arisen in argument when it became apparent there were differing interpretations. I had interpreted the transcript as indicating the police witnesses were available the week of June 6. However, the defendants pointed out a different interpretation which puts that into question. As my analysis on the exceptional circumstances for this period is dispositive, I have therefore not considered this approach but observe that if, in fact, the police witnesses were available, then this would be an appropriate manner in which to assess delay. This would mean a deduction of 55 days for exceptional circumstances and 197 days for communal defence delay between June 6 and December 20, 2021.
[100] For the foregoing reasons I do accept that there was delay due to exceptional circumstances between April 12 and November 10, 2021. I therefore deduct a further 213 days from the net delay.
[101] This results in a total deduction of 436 days due to exceptional circumstances in this matter. The remaining delay for the defendant Botsford is reduced to 786 days, or 25 months and 25 days. The remaining delay for the defendant McLeod is reduced to 803 days, or 26 months and 11 days.
[102] The remaining delay falls below the presumptive ceiling for each defendant. The defendants bear the onus to show the delay is unreasonable. The defence must establish: 1. It took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2. The case took markedly longer that it reasonably should have. Absent these two factors, the s. 11(b) application must fail. It is expected that stays beneath the ceiling are granted only in clear cases: Jordan, supra at para 82. At the outset of argument, I asked for the defendants’ confirmation that this issue was not raised on their application. The defendants instead submitted that they would first need a determination on whether the net delay was below the presumptive ceiling before making submissions and that affidavits may need to be filed. In my view, this is not a reasonable approach. It is clearly part of the Jordan framework which the defendants did not address. It is also questionable as to what affidavit evidence would be relevant to addressing the two elements of the test. In any event, the expectation is that stays beneath the ceiling are granted only in clear cases.
[103] The application for a stay of proceedings due to a breach of s. 11(b) of the Charter is dismissed.
“Justice K. Tranquilli”
Justice K. Tranquilli
Released: April 7, 2022
Appendix A
JORDAN CHRONOLOGY
| DATE | EVENT |
|---|---|
| January 2, 2019 | Applicants charged under s. 5(2) CDSA |
| June 3, 2019 | OCJ pre-trial held |
| June 4, 2019 | Adjournment requested by defendant Botsford for OCJ pre-trial continuation |
| June 14, 2019 | Preliminary Hearing scheduled for September 17, 2019 |
| August 7, 2019 | Dawson application by defendant Botsford |
| September 17, 2019 | Preliminary Hearing commenced but not completed. Continuation October 7, 2019, for one remaining witness. |
| October 7, 2019 | Preliminary Hearing adjourned to January 8, 2020, due to death in witness’s family. |
| January 8, 2020 | Preliminary Hearing completed. Committal to SCJ. |
| February 3, 2020 | SCJ Indictment |
| February 11, 2020 | First appearance in SCJ. JPT scheduled for March 3, 2020, and Assignment Court March 10, 2020. |
| March 2, 2020 | JPT cancelled due to late filing of Form 17 by Botsford counsel. |
| March 10, 2020 | JPT rescheduled to April 1, 2020 and adjourned to Assignment Court April 7, 2020. |
| March 15, 2020 | Chief Justice adjourns all criminal matters of any type scheduled to be heard between March 17, 2020 and June 2, 2020 due to COVID-19. Matters set in April 2020 adjourned until June 3, 2020. |
| April 20, 2020 | Chief Justice issues province-wide order advising the SCJ will not recommence criminal jury selection or jury trials until September 2020 at the earliest due to COVID-19. |
| May 5, 2020 | Chief Justice issues province-wide notice. Criminal matters originally scheduled in April 2020 that were adjourned to June 3, 2020 are further adjourned to July 7, 2020. |
| June 3, 2020 | JPT held via teleconference. 8-day jury trial with multi-stage applications to be set. |
| July 7, 2020 | Special Assignment Court – court adjourns matter adjourned to July 14, 2020, Assignment Court due to list and number of dates to be scheduled in the matter. |
| July 14, 2020 | Assignment Court – Dates scheduled: November 17, 2020 for step-one Garofoli application; February 10-12, 2021 Charter applications; April 26-27 Expert and Baldree applications; June 7-16, 2021 jury trial. |
| November 17, 2020 | Application for leave to examine affiants/sub-affiants of ITOs argued and under reserve. |
| November 21, 2020 | Chief Justice issues province-wide notice suspending jury selection for new jury trials in all areas of province except Green Zones until at least January 4, 2021. |
| December 14, 2020 | Chief Justice extends suspension of jury trials in all areas except Green Zones until January 29, 2021, due to COVID-19. |
| January 13, 2021 | Chief Justice extends suspension of jury trials in all areas except Green Zones until May 3, 2021, at the earliest, due to COVID-19. |
| January 14, 2021 | London SCJ Endorsement adjourning all criminal jury trials scheduled to commence in months of February, March and April 2021 vacated and matters to be addressed in special criminal assignment court on February 4, 2021. |
| February 9, 2021 | Email from application judge outlining decision on leave for cross-examination with further reasons to follow (reasons released March 3, 2021). |
| February 10-12, 2021 | Step 2 Garofoli application (virtual) – cross-examinations proceed. Dates for continued cross-examinations and argument set for March 10, 11, 12 and 23, 2021. |
| February 2021 | Application judge illness |
| March 4, 2021 | Trial Coordinator notifies counsel the March dates cannot proceed as judge is no longer available. New dates to be set in Assignment Court March 9, 2021. |
| March 9, 2021 | Assignment Court – Counsel advised dates need to be rescheduled due to unexpected medical issue regarding application judge. Charter application dates rescheduled for April 12, 15, 21, 22, 2021. Other dates maintained. |
| March 17, 2021 | Chief Justice issues province-wide notice advising jury trials in Southwest Region will commence July 5, 2021 at earliest. |
| March 18, 2021 | London SCJ Endorsement adjourning all criminal jury trials scheduled to commence in May and June 2021 are adjourned to a special assignment court on April 9, 2021. |
| March 18, 2021 | Medical report informs RSJ the judge would be off work until April 5, 2021 and would be reassessed in a couple weeks. |
| March 31, 2021 | Application Readiness Court re expert and Baldree applications: Adjourned to April 7, 2021 for readiness. |
| March 31, 2021 | Medical report informs RSJ the judge would be off work until June 1, 2021. |
| April 6, 2021 | Trial Coordinator advises counsel that the April dates for the Charter application cannot proceed. |
| April 7, 2021 | Readiness Court: Counsel advises dates need to be reset at Special Assignment Court because of an issue with the application judge’s availability. Adjourned to April 9, 2021. |
| April 9, 2021 | Assignment Court: Rescheduling of pretrial applications and trial dates. Counsel advised dates need to be rescheduled due to unexpected medical leave of indefinite duration. New application dates for December 20, 21, 23, 24, 2021, January 27-28, 2022 and trial for April 11-22, 2022 set. McLeod counsel requests 11b JPT. Instructed to arrange future court appearance for same. |
| April 20, 2021 | Chief Justice issues notice suspending all but most critical virtual proceedings until May 7, 2021, due to COVID-19. |
| May 19, 2021 | London SCJ Endorsement advising will not be possible to resume criminal jury trials until at least August 2021 due to declaration of emergency and province-wide stay-at-home order being extended to June 2, 2021. |
| June 1, 2021 | Medical report informs RSJ judge to remain off work until beginning of September 2021 with clinical follow up in 4 weeks. |
| July 2, 2021 | PRESUMPTIVE JORDAN DATE |
| September 8, 2021 | Chief Justice extends judge’s medical leave until November 10, 2021. |
| November 19, 2021 | Botsford counsel email inquiry of Trial Coordinator re application judge’s availability for December application dates. Trial Coordinator advises will respond. |
| November 22, 2021 | Botsford counsel email inquiry of Trial Coordinator re application judge’s availability for December application dates. Trial Coordinator advises she will respond once she has an answer. |
| December 7, 2021 | Botsford counsel email follow up with Trial Coordinator regarding status of application judge. Trial Coordinator responds she will advise once has an answer. |
| December 8, 2021 | RSJ appoints case management judge. |
| December 12, 2021 | RSJ receives medical reports suggesting gradual part-time return to work no earlier than late February/early March 2022. |
| December 15, 2021 | In response to inquiries, Trial Coordinator advises counsel the application is proceeding as scheduled. Counsel requests conference. |
| December 16, 2021 | Case Management Conference. Defence position to restart Garofoli application with new judge to apply for mistrial. Crown advises mistrial not necessary. December application dates vacated. Adjourned to December 23, 2021. |
| December 17, 2021 | Chief Justice suspends new criminal jury trials due to Omicron variant. |
| December 23, 2021 | Case Management Conference held before Tranquilli J. January 27, 2022 preserved for mistrial application. Adjourned to January 6, 2022. |
| January 4, 2022 | Court confirms to counsel that previous judge will not preside at trial. |
| January 6, 2022 | Case Management Conference to review rescheduling application dates to preserve April 2022 trial dates. |
| January 11, 2022 | Assignment Court – new application and trial dates canvassed. Trial rescheduled for October 17-26, 2022, and application dates for April and July 2022. |
| January 19, 2022 | Chief Justice extends suspension of any new jury selection until February 28, 2022. |
| October 26, 2022 | Estimated conclusion of trial. |
COURT FILE NO.: CR39-20
DATE: 20220407
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
EMILY BOTSFORD and DANIEL MCLEOD
REASONS FOR JUDGMENT
Tranquilli J.
Released: April 7, 2022