Court File and Parties

COURT FILE NO.: CR-21-681 DATE: 20220407 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MICHAEL BUABENG

Counsel: S. Karim, for the Crown E. Bhattacharya and M. Rodriguez, for the Applicant

HEARD: March 9, 2022

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada

11(b) Application

MILLER J.

[1] Michael Buabeng is charged with, Assaulting M.S. with a Weapon between November 1 - 30, 2017; Assaulting M.S. on December 15, 2017; and three counts of Sexually Assaulting M.S. September 1-October 31, 2017; November 1-30, 2017; and December 1-31, 2017.

[2] Mr. Buabeng applies for a stay of proceedings as a s. 24 (1) remedy due to a violation of his right, pursuant to s. 11(b) of the Charter, to trial within a reasonable time. His trial, estimated to take 10 days with a jury, is scheduled to commence July 11, 2022, and is anticipated to be completed by July 22, 2022.

[3] Mr. Buabeng’s position is that there has been a total delay of 1,401 days or 46 months and 2 days in the prosecution of his matter. He submits that even allowing for defence delay and exceptional circumstances the remaining delay is presumptively unreasonable and warrants a remedy in the form of a stay of proceedings.

[4] The Crown agrees that the total delay is 1,401 days or 46 months and two days but Crown’s position is that when defence delay and exceptional circumstances are taken into account, the remaining delay in this matter is well below the presumptive ceiling. The Crown submits that the Application should be dismissed.

Law

[5] The framework for deciding an Application for stay because of unreasonable delay is governed by the Supreme Court of Canada decision in R. v. Jordan 2016 SCC 27. This case sets a presumptive ceiling for matters before superior courts of justice at 30 months.

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

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

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

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

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

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

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

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[8] In the present case, the date of the charge was September 20, 2018, and the anticipated end date of the trial is currently July 22, 2022. The total delay is therefore 1,401 days or 46 months and 2 days, which is 16 months over the presumptive ceiling.

TimeLine

[9] The timeline is not disputed. Counsel for Mr. Buabeng and for the Crown disagree as to the appropriate allocation of the time to trial.

[10] The allegations were reported to police by the complainant on September 19, 2018, and the complainant provided a KGB video statement to police on September 20, 2018. Mr. Buabeng was arrested on September 20, 2018, and the Information was sworn on September 21, 2018. The Crown elected to proceed by way of indictment. Mr. Buabeng elected to be tried by judge and jury with a preliminary hearing.

[11] Up to November 23, 2021 the parties agree that the matter proceeded without undue delay. Counsel for the defence had indicated on November 9, 2018 that the request for additional disclosure had been made and he anticipated he “should be in a position to complete a Crown pre-trial and set a judicial pretrial on the return date.”

[12] On November 23, 2018, the agent appearing on behalf of counsel for the defence indicated on the record that there was outstanding disclosure that had not yet been received. The matter was further adjourned to December 14, 2018 to set a date for the judicial pre-trial.

[13] On December 14, 2018 the judicial pre-trial date of February 4, 2019 was set.

[14] An Ontario Court Judicial Pre-Trial was conducted on February 4, 2019. A time estimate of two days was determined for the preliminary hearing which was scheduled for October 30 and 31, 2019. These were the first dates offered by the Trial Coordinator and both were available for the Crown and for the defence.

[15] On June 21, 2019, Parliament enacted legislation - Bill C-75 - which, among many other things, amended the provisions of the Criminal Code relating to preliminary inquiries. The amendments came into force on September 19, 2019, and substantially limited the availability of preliminary inquiries. After the amendments preliminary inquiries were available only for indictable offences punishable by 14 years’ imprisonment or more. At the time of the enactment, there were no transitional provisions provided within the legislation.

[16] The Crown took the position in writing to defence counsel that the new legislation would be “governed by the normal rule regarding changes to the law which are purely procedural in nature, and which do not affect substantive rights, namely that they apply immediately (retrospectively) to all pending and future cases.”

[17] The Crown provided the following four options to the defence: (1) re-election to trial in the Ontario Court of Justice; (2) progression to trial in the Superior Court of Justice; (3) contested hearing on the issue of jurisdiction; or, (4) await the development of case law, provided that any resulting delay would be waived by the defence in the context of section 11(b).

[18] The defence made an application to preserve the preliminary hearing dates and initiated a constitutional challenge to the legislative denial of a preliminary hearing. The defence took the position that there was a presumption against retrospectivity given that the right to a preliminary inquiry was not merely a procedural rule, but was more importantly a substantive right.

[19] On September 27, 2019, Regional Senior Justice Thomas of the Ontario Superior Court released his decision in R. v. R.S., 2019 ONSC 5497. He found that the OCJ did not have jurisdiction to continue with preliminary hearings that did not conform to the amendments as of September 19, 2019. On October 11, 2019, counsel for Mr. Buabeng conceded that this decision bound the Ontario Court of Justice and the Preliminary Hearing dates of October 30 and 31, 2019 were vacated. The matter was spoken to on October 31, 2019, and adjourned to November 5, 2019 in order to set a date for a further judicial pretrial. On October 31, 2019 counsel for Mr. Buabeng indicated his client’s intention to have a trial in the OCJ.

[20] On November 5, 2019, a judicial pretrial was scheduled for January 3, 2020.

[21] On November 18, 2019, the Ontario Court of Appeal released their decision on the amendments and their transitional provisions in the case of R. v. R.S., 2019 ONCA 906. The Court held that where an accused person had elected their mode of trial and had requested a preliminary inquiry before the amendments came into force on September 19, 2019, the amendments would not apply and the accused person would be entitled to their preliminary inquiry.

[22] Mr. Buabeng’s matter was then brought forward to December 19, 2019; the judicial pretrial for January 3, 2020 was vacated and new dates were scheduled for Mr. Buabeng’s preliminary hearing. The rescheduled dates were to be April 28 and 29, 2020.

[23] On March 16, 2020, trials and out-of-custody appearances in the Ontario Court of Justice were suspended to July 6, 2020, as a result of the global COVID-19 pandemic.

[24] The rescheduled preliminary hearing of April 28 and 29, 2020 was not conducted and was postponed as a result of the COVID-19 pandemic. The matter was adjourned to be spoken to on July 7, 2020.

[25] On May 11, 2020, the Ontario Court of Justice published a Notice to the Profession outlining the processes to be followed during the ongoing state of emergency. The May Notice directed that trials scheduled following July 6, 2020 would be expected to proceed and that the rescheduling of cancelled matters would be done according to priority following that date.

[26] On June 17, 2020, the Ontario Court of Justice published a Notice of the Profession announcing the phased re-opening of the courts, with a target date of November 2020 for the full resumption of trials and preliminary inquiries.

[27] On June 22, 2020, the Crown’s Office emailed the Trial Coordinator to advise that the preliminary hearing had not gone ahead as a result of the pandemic. Pursuant to the directions from the Ontario Court of Justice, it was required that an additional Judicial Pre-Trial be held for any matters where a preliminary hearing had been scheduled between March 16, 2020 and July 3, 2020. A Judicial Pre-Trial was therefore scheduled and completed on July 10, 2020 in the Ontario Court of Justice.

[28] As of July 24, 2020, the Brampton Courthouse was ready to commence setting dates for all matters, including those that were postponed during the court closures. The Brampton Courthouse began working at a reduced capacity, with approximately one-third of courtrooms open and retrofitted for in-person hearings.

[29] On July 27, 2020, counsel for the Applicant sent the completed Trial Time Estimate Form and Trial Preliminary Hearing Scheduling Form to the Trial Coordinator’s Office by email. Counsel was advised that there had not yet been a directive from the Chief Justice with respect to setting out of custody trial dates adjourned from COVID and that the forms would be retained on file until the Trial Coordinator’s Office could reach out to schedule an appointment to set dates.

[30] On August 12, 2020, the Ontario Court of Justice published a Notice to the Profession and Public regarding the scheduling of criminal trials and preliminary hearings. The August Notice prioritized the re-scheduling and scheduling of in-custody trials for six weeks prior to re-scheduling any of the out-of-custody trials that were adjourned as a result of the COVID-19 pandemic.

[31] On August 19, 2020, counsel for the Applicant again sent the completed Trial/ Preliminary Hearing Scheduling Form to the Trial Coordinator’s Office by email.

[32] On September 14, 2020, the Ontario Court of Justice issued a directive to begin rescheduling out-of-custody trials and preliminary hearings that had been scheduled to begin between June 8, 2020 and July 3, 2020, but were adjourned as a result of the COVID-19 pandemic. As of September 15, 2020, an additional one-third of courtrooms were open and retrofitted for in-person hearings.

[33] On October 26, 2020, counsel for the Applicant received a response to their email dated August 19, 2020 relating to the rescheduling of the Preliminary Hearing and on October 27, 2020 counsel again provided the Trial Time Estimate Form which had been completed in February 4, 2019.

[34] On November 9, 2020, the Trial Coordinator’s Office provided counsel with the available dates and times for scheduling a Zoom Meeting for the purpose of re-scheduling the Preliminary Hearing in the present matter. The Zoom Meeting was scheduled for November 16, 2020.

[35] On November 16, 2020, dates were canvassed regarding the availability of counsel for the Applicant and the Crown in order to re-schedule the Preliminary Hearing. The dates offered for which the Crown was not available but defence was available were: December 1, 2, and 22, 2020. The Preliminary Hearing was ultimately scheduled for two days on January 11 and 12, 2021.

[36] At the end of the Preliminary Hearing, Mr. Buabeng was committed to stand trial in the Superior Court of Justice and his matter was set for an appearance in that Court on February 19, 2021. On February 19, 2021 a date was set for a Superior Court Judicial Pre-Trial on March 31, 2021

[37] On March 31, 2021, a Judicial Pre-Trial was conducted in the Superior Court. Following the Judicial Pre-Trial a series of dates were set to deal with pre-trial applications including this one. A date for the hearing of this application was ultimately set for October 19, 2021. Trial dates with a jury were scheduled to commence on January 24, 2022 and the ten day trial to conclude on February 4, 2022.

[38] On October 8, 2021, counsel for the defence and a representative from the Crown’s office confirmed they were ready to proceed with the 11(b) Application Hearing scheduled to take place on October 19, 2021.

[39] On October 13, 2021, the Crown advised counsel for the defence that they were not prepared to proceed on the October 19, 2021 date. There was a misunderstanding between the parties involving an agreed statement of fact. There was ultimately a joint request to reschedule the 11(b) Application Hearing.

[40] On October 15, 2021 an update on the 11(b) Application was provided both by counsel for the defence and by the Crown. The matter was adjourned to October 19, 2021 for a Judicial pretrial.

[41] On October 19, 2021 a Judicial pretrial was conducted. The matter was adjourned to trial readiness court on October 29, 2021 to confirm the parties were prepared to proceed on the other pre-trial application and for an update on the 11(b) Application.

[42] On October 29, 2021, the other pre-trial application was marked as ready to proceed on November 15, 2021 and the matter was adjourned to that date. Due to illness, the Crown was not able to file their material or to proceed with the other pre-trial application on the November 15, 2021 date and the matter was adjourned to November 26, 2021.

[43] On November 26, 2021 the first stage of the other pre-trial application was conceded by the Crown and the matter was adjourned to be spoken to for scheduling on November 29, 2021.

[44] On November 29, 2021 the 11(b) Application was set to be heard on the afternoon of January 5, 2022.

[45] On December 1, 2021, counsel for the defence sent Ms. Brar of the Crown’s Office a draft Book of Transcripts, which included transcripts of all the proceedings that had been previously identified by the Crown as not being amenable to an agreed statement of facts. On December 17, 2021, counsel for the defence sent Ms. Brar of the Crown’s Office a proposed agreed statement of facts. Counsel for the defence did not receive a response to either email.

[46] On January 3, 2022, counsel for the defence received the Responding Materials of the Crown pertaining to the 11(b) Application.

[47] Trial dates before a judge and jury had been scheduled to commence on January 24, 2022 and to conclude on February 4, 2022. On December 17, 2021, the Superior Court of Justice published a Notice to the Profession advising that the Court would not commence any new jury selection in any court location until February 7, 2022.

[48] On January 5, 2022, counsel for the defence and the Crown Ysolt Brar appeared in the Superior Court of Justice for the purpose of rescheduling the trial dates that had been set for January 11, 2022 to February 4, 2022. Given the two pre-trial applications in the present case, the first date offered by the Court for the commencement of trial was May 24, 2022. The defence was available and the Crown was not. There was no indication from the court as to whether earlier dates were available.

[49] The second date offered by the Court was July 11, 2022. Both the defence and the Crown were available. The jury trial was therefore rescheduled to commence on July 11, 2022. The 11(b) Application Hearing was also rescheduled with the understanding that both counsel for the defence and the Crown would be filing supplementary materials to finalize any outstanding issues not addressed in the initial factums. The date of March 9, 2022 was the date schedule for the hearing of this Application.

Defence Delay

[50] Defence delay, as defined in Jordan at paragraph 66, “…comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.”

[51] Counsel identified the following periods of time as contentious in terms of whether they should be deducted from the total delay. a. November 23, 2018 to December 14, 2018 (21 days); b. December 14, 2018 to February 4, 2019 (1 month and 20 days); c. February 4, 2019 to October 30, 2019 (8 months and 26 days); d. March 10, 2020 – April 28, 2020 (1 month and 18 days); e. February 19, 2021 to March 31, 2021 ( 1 month and 12 days ); and f. November 2021 to February 1, 2022 (3 to 4 months).

[52] Mr. Buabeng’s position is that there was no defence delay in the present case and that the Net Delay is therefore equal to the Total Delay of therefore 1401 days or 46 months and 2 days.

[53] On November 9, 2018 and November 23, 2018 counsel for Mr. Buabeng requested a adjournment as they had not yet received additional disclosure requested from the Crown. That disclosure was eventually picked up by defence counsel on December 19, 2018. On December 14, 2018 the judicial pre-trial date of February 4, 2019 was set.

[54] It is the Crown’s position that the disclosure request was not an impediment to setting a Judicial Pre-Trial date, in particular given the busy schedule in Brampton to set Judicial Pre-trial dates. There was no reason that a request for a Judicial Pre-trial could not have been made on November 23, 2018.

[55] For the period November 23, 2018 to December 14, 2018 Mr. Buabeng takes the position that it was reasonable to wait for requested disclosure to be provided before setting the judicial pre-trial date. Counsel for Mr. Buabeng submits that this was neither a deliberate and calculated tactic employed to delay the matter, nor was it a frivolous request. It was in fact a defence action legitimately taken to respond to the charges and to ensure the judicial pre-trial would be a meaningful use of judicial resources.

[56] I accept that delay related to waiting for the disclosure amounts to “defence actions legitimately taken to respond to the charges”. I find that the period November 23, 2018 to December 14, 2018 does not amount to defence delay.

[57] For the period December 14, 2018 to February 4, 2019 the Crown concedes that this was an inherent time requirement that should be included in the total delay. I agree.

[58] For the period February 4, 2019 to October 30, 2019 the Crown submits that when the dates were put on the record there was no indication that counsel had earlier dates available or that 11(b) was an issue and therefore there was an implicit waiver of s. 11(b).

[59] The Preliminary Hearing Scheduling Form pertaining to the Preliminary Hearing dates of October 30 and 31, 2019 confirms that October 30 and 31, 2019 were the first dates offered by the trial coordinator. I find no defence delay for the period of February 4, 2019 to October 30, 2019.

[60] The Crown submits that the time period from March 10 – April 28, 2020 is defence delay as the Crown and Court were available on 3 earlier preliminary hearing dates offered. The Crown and Court were available March 10-11, 2020; April 7-8, 2020 and April 21-22, 2020. This is a delay of approximately 1 month and 18 days.

[61] The Applicant submits that the maximum delay that could be attributed to the defence would be 49 days or 1 month and 18 days between the first date available for the Crown on March 10, 2020 and the date scheduled for the preliminary hearing on April 28, 2020.

[62] I find that the period March 10, 2020-April 28, 2020 – 49 days – is properly attributed to defence delay.

[63] February 19, 2021 was Mr. Buabeng’s first appearance in Superior Court following his committal for trial. March 31, 2021 was the date set for the Judicial pre-trial. Defence and Crown were available March 23, 2021 but it appears from the transcript that the Court was not. The Crown submits that the period February 19, 2021 to March 31, 2021 is defence delay as a trial date could have been set February 19, 2021 and a judicial pre-trial date scheduled in the interim.

[64] Counsel for Mr. Buabeng submits that it was not unreasonable for counsel to request a judicial pre-trial prior to setting trial dates in the Superior Court. Judicial Pre-Trials serve an important function in narrowing issues and in determining an accurate estimate of time for trial.

[65] The post-Jordan convention in Brampton Superior Court is to set the trial dates, with a rough estimate, as soon as possible and even before a Judicial Pre-Trial is held. If the judicial pre-trial is successful in narrowing issues and reducing the trial time needed that adjustment can still be made at or after the judicial pre-trial but before the trial proceeds. Waiting until after the judicial pre-trial to set dates for trial will almost inevitably result in a trial date that is further out.

[66] However, the record of the February 19, 2021 appearance does not support a conclusion that this option was offered. In the circumstances of this case I find that it was not unreasonable for counsel to request a judicial pre-trial prior to setting trial dates in the Superior Court, and this conduct does not amount to a waiver of s. 11(b). I find no defence delay for the period February 19, 2021 to March 31, 2021.

[67] On March 31, 2021 at the judicial pre-trial counsel for Mr. Buabeng identified that a s. 11 (b) pretrial motion would need to be set in advance of the trial. Although the Court indicated that jury trial dates for priority matters were being set as early as June 2021, although those dates were “very much up in the air”, the Crown indicated that this case was not one to which the Crown was asking be given priority.

[68] The first date thereafter offered by the Court for trial was November 29, 2021. Neither Crown nor Defence asked if there were dates earlier that November 29, 2021 available despite Defence indicating the need to set dates for the 11(b). The Crown was available for November 29, 2021 trial dates but counsel for Mr. Buabeng was not. The next date offered was January 24, 2022 and both Crown and Defence were available. A date for the first stage of the pre-trial motions was set for November 15, 2021 and a further judicial pre-trial date was set for the 11 (b) motion with a view to selecting a date in advance of the pre-trial motions.

[69] The Crown’s position is that defence delay (if not already encompassed by the COVID-19 exceptional circumstance) should be attributed for the period from November 29, 2021 to January 24, 2021.

[70] Mr. Buabeng’s position is that the maximum delay in this instance would be 56 days or 1 month and 26 days from the first date suggested by the Court of November 29, 2021 to the first day trial was scheduled to commence on January 24, 2022.

[71] I find that as defence was not available on the November 29, 2021 date offered by the Court and for which the Crown was available, there is further delay from November 29, 2021 to January 24, 2022 attributable to the defence of 56 days.

[72] I find the total amount of defence delay is (49 + 56) 105 days. This reduces the total of 1,401 days to delay to 1,296 days or just over 43 months. The net delay is still well over the Jordan threshold of 30 months.

Exceptional Circumstances

[73] The Crown seeks to establish two separate exceptional circumstances: the first relating to delay occasioned by uncertainty around the retrospectivity of Bill-C-75 and the second due to the impact of the COVID-19 pandemic and related public health restrictions.

The Impact of Bill C-75

[74] The Crown takes the position that the period of time from October 30, 2019 to April 28, 2020 was the result of an exceptional circumstance and relies on the case of R. v. Thompson, 2021 ONSC 5542 in which Justice O’Marra of the Superior Court of Justice held that the adjournment of a matter when the court had no jurisdiction to hear it for a temporary period is an exceptional circumstance.

[75] In R. v. Thompson 2021 ONSC 5542 O’Marra J. considered whether the impact of Bill C-75 amounted to an exceptional circumstance in a s. 11 (b) analysis. In that case the dates of October 23 and 24, 2019 were set for a preliminary hearing. When it was re-scheduled due to the series of events following the implementation of Bill C-75 the new preliminary hearing was set for March 24, 2020. It was further re-scheduled due to the COVID-19 pandemic and was eventually held January 11, 2021.

[76] As set out at paragraph 4 of Thompson:

On June 21, 2019 Bill C-75 received royal assent and on September 19, 2019 amendments came into effect that limited the availability of preliminary inquiries for certain offences. They included the offences alleged against the applicant. The AG of Ontario took the position that effective September 19, 2019 the Ontario Court of Justice (OCJ) no longer had jurisdiction to conduct preliminary hearings for certain offences. Applications were brought by the Crown to vacate preliminary hearings that had already been set. Ontario was the only justice ministry in Canada to take that position. The Public Prosecution Service of Canada did not take steps in Ontario to vacate any preliminary hearings that had been scheduled.

[77] At paragraph 8 of Thompson, O’Marra J. noted that:

The appellate decision in R.S. dealt specifically with the impact of Bill C-75 but also addressed the doctrine of stare decisis. Justice Doherty at para. 73 stated that following the decision of RSJ Thomas, the OCJ was bound and could not have conducted the scheduled preliminary hearing. Other judges of the OCJ determined that they were bound by that decision and at para. 74 Justice Doherty said they were correct to do so.

[78] O’Marra J. found that there was a period of 5 months and one day that was a discrete exceptional delay related to Bill C-75. This encompassed the time from the original preliminary hearing date of October 23, 2019 to the re-scheduled preliminary hearing date of March 24, 2020.

[79] Counsel for Mr. Buabeng, citing R. v. Arthur 2021 ONSC 6982 submits that the impact of Bill C-75 in the present case was in stark contrast to its proposed intention of reducing systemic delays in the matters before provincial courts. Counsel for Mr. Buabeng submits that although the Ontario Court of Justice may have been restricted from conducting preliminary hearings as of the originally scheduled preliminary hearing date of October 30, 2019, the jurisdiction to conduct such hearings was reinstated as of the date of the Ontario Court of Appeal decision on November 18, 2019. They submit that some consideration should be given to the fact that the Applicant was ultimately successful in maintaining his position that he was entitled to a preliminary hearing.

[80] Counsel for Mr. Buabeng therefore submits that the maximum delay attributed to the exceptional circumstance arising out of Bill C-75 should be 19 days from the date of the originally scheduled preliminary hearing on October 30, 2019 to the date the Ontario Court of Appeal decision was released on November 18, 2019.

[81] I note that in Arthur, Boswell J. was focused on whether, due to the elimination of preliminary hearings for certain offences because of Bill C-75, the Jordan threshold for those offences should be 18 months whether the matter proceeds in the provincial court or in the superior court. He concluded that it should not. In that case Mr. Arthur had not been arrested until October 27, 2019 so the implementation of Bill C-75 was not responsible for any delay in his matter getting to trial.

[82] I agree with the reasoning of O’Marra J. in Thompson. Applying that reasoning to this case, I find that the period of 181 days from the original preliminary hearing date of October 30, 2019 to the re-scheduled preliminary hearing date of April 28, 2020 was a discrete exceptional delay related to Bill C-75.

[83] The remaining delay, subtracting the 181 days related to the Bill C-75 exceptional circumstance from the net delay of 1,296 days, would be 1,115 days or just over 37 months. However, of that period of time I also found the period March 10, 2020-April 28, 2020 – 49 days – to be defence delay. This time period cannot be double counted, so I add back 49 days to find the remaining delay to this point to be 1,164 days or just under 39 months.

Impact of the COVID-19 Pandemic

[84] The Crown submits that the time period from March 2020 to July 22, 2022 when the trial is scheduled to end should be attributable to the COVID-19 pandemic, which is an exceptional circumstance. This is a period of 857 days or 28.5 months.

[85] Counsel for Mr. Buabeng concede that the COVID-19 pandemic constitutes an exceptional circumstance in respect of delay occasioned as a result of the pandemic. Counsel for Mr. Buabeng submits, however, that the delay resulting from the COVID-19 pandemic commenced on April 28, 2020, as the Preliminary Hearing scheduled for that date would have proceeded but for the pandemic.

[86] Counsel for Mr. Buabeng further maintains that the COVID-19 pandemic constituted an exceptional circumstance from the date of April 28, 2020 to November 16, 2020, when reasonable and routine efforts to re-schedule the date of the Preliminary Hearing commenced. The amount of delay between April 28, 2020 and November 16, 2020 would be 203 days or 6 months and 20 days.

[87] Counsel for Mr. Buabeng specifically disagrees with the Crown contention that the delay of 1 month and 27 days between November 17, 2020 to January 12, 2021 was a direct consequence of the COVID-19 pandemic. The Trial Coordinator offered the Crown and the defence five dates on which the Preliminary Hearing could proceed prior to the eventually selected date of January 11, 2021. The earliest of those dates was December 1, 2020. The defence was available and the Crown was not. Counsel for Mr. Buabeng submits that the fact that there were dates being offered between December 1, 2020 and January 11, 2021 clearly establishes that the delay was not a direct result of the pandemic.

[88] Counsel for Mr. Bubeng also submits that there is a maximum delay of 27 days from the day the trial was set to commence on January 11, 2022 to the date the Court could begin recommencing jury trials on February 7, 2022, which could be said to have resulted from the COVID-19 pandemic.

[89] As well, the first date offered for the commencement of trial was May 24, 2022. The defence was available and the Crown was not. There was no indication from the court as to whether earlier dates were available. The second date offered was July 11, 2022. The defence was available. Although the Crown initially indicated that she was not available, and as a result there were a number of other dates canvassed, the Crown eventually confirmed that the date of July 11, 2022 was agreeable for the commencement of trial. The jury trial on this matter was therefore rescheduled and is currently set for July 11, 2022 to July 22, 2022.

[90] Counsel for Mr. Buabeng submits that the May 24, 2022 date was set based on the procedural requirements of the present case, which includes the hearing of two pre-trial applications prior to the commencement of trial. The fact that there were no earlier dates offered by the Court is consistent with the time required to conduct the pre-trial applications and to receive a decision on each application prior to the commencement of trial. Counsel for Mr. Buabeng therefore submits that the time period between February 7, 2022 and May 24, 2022 was not strictly a delay resulting from the COVID-19 pandemic, but was rather the time required to accommodate the rescheduled pre-trial applications in advance of the commencement of trial.

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

[92] In this case the rescheduled preliminary hearing of April 28 and 29, 2020 was not conducted and was postponed as a result of the COVID-19 pandemic.

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

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

…the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

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

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

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

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

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

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

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

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

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

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

[102] While I understand the approach taken in Hyacinthe and in Brooks, I prefer the position taken in Khattra which recognized that in the circumstance where the trial (or preliminary hearing) date had been set prior to the mid-March COVID-19 shutdown, the period of exceptional circumstance attributable to the COVID-19 pandemic should begin at the original trial (or preliminary hearing) date. This approach recognizes delay that existed before the pandemic restrictions took effect. In this case no steps were taken, after the court shutdown, to re-schedule the preliminary hearing until well after the scheduled date of April 28 and 29, 2020.

[103] I find therefore that the first COVID-19 exceptional circumstance began April 28, 2020.

[104] I also find that this case is distinguishable from Hyacinthe in that, using Harris J.’s language, the stars did align, such that a new preliminary hearing was scheduled and proceeded, and upon committal for trial in the Superior Court a jury trial date was scheduled.

[105] At the same time, I find that it would not be appropriate to end the COVID-19 pandemic exceptional circumstance on the date the courts were prepared to begin scheduling new preliminary hearings and trials, as this does not take into account the domino effect of the backlogged trials noted by Harris J. in Hyacinthe. Instead I find it appropriate to find that the COVID-19 pandemic exceptional circumstance should run from the originally scheduled preliminary hearing or trial that was adjourned due to COVID-19, to the new preliminary hearing or trial that was scheduled once the COVID-19 restrictions permitted that to happen.

[106] In accordance with this approach I would find that the COVID-19 exceptional circumstance would run from the date of the originally scheduled preliminary hearing that did not proceed because of COVID-19 to the newly scheduled preliminary hearing. However, in the circumstances of this case, I am not satisfied that the entire delay from April 28, 2020 to January 12, 2021 was caused by the pandemic. I find that the first COVID-19 exceptional circumstance ran from April 28, 2020 to December 1, 2020 when defence was available for the re-scheduled preliminary hearing but the Crown was not. This is a period of 218 days.

[107] This case was to be tried beginning January 24, 2022, and expected to conclude by February 4, 2022, but was adjourned due to deferral of jury trials during the Omicron variant wave of COVID-19.

[108] I find that Institutional or Crown delay account for the time from the preliminary hearing to the end of the first scheduled trial date of February 4, 2022.

[109] In the ordinary course I would find that the COVID-19 exceptional circumstance would run from the end date of the originally scheduled trial that did not proceed because of COVID-19 to the newly scheduled preliminary hearing or trial. However, in the circumstances of this case, I am not satisfied that the entire delay from February 4, 2022 to July 22, 2022 was caused by the pandemic. I find that the second COVID-19 exceptional circumstance runs from February 4, 2022 to June 6, 2022 as the defence was available for the re-scheduled trial beginning May 24, 2022 (ending ten court days later on June 6, 2022) hearing but the Crown was not. This is a period of 123 days.

[110] The total time attributable to the COVID-19 pandemic exceptional circumstance is (218 + 123) 341 days.

Remaining Delay

[111] Subtracting the 341 days attributable to the COVID-19 pandemic exceptional circumstances from the delay remaining of 1,164 days leaves 823 days or approximately 27.4 months. This is under the Jordan threshold.

[112] I go onto consider whether the delay, although presumptively reasonable, has been shown to be nonetheless unreasonable.

[113] Counsel for Mr. Buabeng submits that the present case has taken markedly longer than it should have and that the defence has taken meaningful steps to demonstrate a sustained effort to expedite the proceedings.

[114] Counsel for Mr. Bubeng cites the comments of Rahman J. of the Ontario Court of Justice in the recent case of R. v. Sawh, 2022 ONCJ 15. At paragraph 23 of that decision Rahman J. noted:

Determining whether a case has taken markedly longer than it should have, “is not a matter of precise calculation.” A court “should not parse each day or month…to determine whether each step was reasonably required. Rather, the exercise requires a trial judge to “step back from the minutiae and adopt a bird’s-eye view of the case.”

[115] Having done so, and even taking into account that on March 31, 2021 the Crown indicated that this case was not one to which the Crown was asking be given priority, I find that Mr. Buabeng has not shown the delay to be unreasonable.

[116] The Application is dismissed.

MILLER J.

Released: April 7, 2022

R. v. Buabeng, 2022 ONSC 2181

COURT FILE NO.: CR-21-681 DATE: 20220407 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MICHAEL BUABENG RULING on s. 11(b) MILLER J.

Released: April 7, 2022