R. v. M. T-S., 2022 ONSC 2471
COURT FILE NO.: CR-21-85 DATE: 2022-04-25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent –and– M. T-S. Applicant
Counsel: Joshua Mociak, for the Crown / Respondent on Application Andrew Domacina, for M. T-S. /Applicant on Application
HEARD: April 21, 2022
PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
DECISION ON APPLICATION
APPLICATION FOR STAY OF PROCEEDINGS PURSUANT TO S.11(B) AND S. 24(1) OF THE CHARTER
GIBSON J.:
Overview
[1] M. T-S. (“the Applicant”) is charged with two counts of sexual assault contrary to s.271 of the Criminal Code, and two counts of assault contrary to s.266 of the Criminal Code. The charges pertain to alleged incidents in the periods 20-31 December 2016, 1 October -30 November 2018, and 26 July - 11 August 2019.
[2] The Applicant was arrested on September 5, 2019. He elected to be tried by judge and jury on September 17, 2021.
[3] His jury trial is scheduled to begin on June 20, 2022. It is estimated that it will be completed by June 29, 2022.
[4] The time between the arrest on September 5, 2019 and the scheduled final day of trial on June 29, 2022, is 1029 days, or 33 months and 24 days.
[5] By his Notice of Application dated January 11, 2022, the Applicant seeks a determination that his right to be tried within a reasonable time pursuant to s.11(b) of the Canadian Charter of Rights and Freedoms has been infringed, and an Order staying the charges pursuant to s.24(1) of the Charter.
Position of the Parties
[6] The Applicant submits that the presumptive 30-month Jordan deadline for matters proceeding in the Superior Court of Justice in this case is March 5, 2022. He asserts that the delay in this matter is presumptively unreasonable and that the legal and evidentiary onus thus shifts to the Crown to demonstrate why the charges should not be stayed. He submits that the Crown has fallen short in its disclosure obligations, particularly the DVD of the Complainant’s recorded statement to police made on August 30, 2019.
[7] The Crown disagrees, and requests that the Applicant’s s.11(b) Application be dismissed. It submits that during this case, there are numerous delays attributable to the Applicant: for example, the Applicant’s delay in obtaining trial counsel and initial counsel’s delay in requesting disclosure. Furthermore, the Crown submits, nearly halfway through this time period, the Applicant changed counsel and it took new counsel approximately 2.5 months to request disclosure. Such delays are, it insists, attributable to the defence.
[8] Furthermore, the Crown submits, the COVID-19 pandemic constitutes a discrete exceptional circumstance that has severely impacted the criminal justice system and led to delays that were not attributable to the Crown.
[9] The Respondent Crown submits that when all these factors are considered, the remaining delay between the date of arrest and the final date of trial will be 514 days, or 16 months and 27 days, which is far below the 30-month presumptive ceiling applicable in this case.
The Jordan Analytical Framework
[10] In R. v. Jordan, 2016 SCC 27 at paras. 5, 46-48, 49 and 60, the Supreme Court of Canada set out the analytical framework to be applied in cases where an infringement of the accused person’s constitutional right to be tried within a reasonable time under s.11(b) of the Charter is asserted. In Jordan, the Supreme Court of Canada detailed presumptive ceilings within which an accused person must be brought to trial: 18 months for cases in provincial court, and 30 months for cases tried in superior court. In cases where the total delay, less delays either waived or attributable to the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the presumptive ceiling, the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. Stays of proceeding for delays that fall below the ceilings will be rare and limited to clear cases.
[11] In Jordan, the Supreme Court of Canada detailed the following steps when determining the time for trial:
I. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial- that is, the end of evidence and argument; II. Subtract defence delay, including delay that is waived, from the total delay, which results in the net delay; III. Compare the net delay to the presumptive ceiling; IV. If the net delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events, and particularly complex cases; V. Subtract delay caused by discrete events from the net delay, leaving the remaining delay; VI. 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; and VII. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[12] The relevant time period runs from the charge to the actual or anticipated end of trial. The end of trial does not include the period between the end of closing arguments to the verdict: R. v. Williamson, 2016 SCC 28 at para. 19.
Analysis
[13] In this case therefore, the total delay, which is between the date of the Applicant’s arrest on September 5, 2019, and the last scheduled day of trial, which is June 29th, 2022, is 1029 days, or 33 months and 24 days.
[14] A party who causes an adjournment is responsible for the entire period of the delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time: R. v. Picard, 2017 ONCA 692 at para. 117.
[15] The defence concedes that the period involving a change of counsel, from May 12, 2021 to Aug 19, 2021, the date of the final Judicial Pre-Trial, could be attributable to the defence. This is a period of three months and nine days. It submits that this still leaves the total delay above the 30-month ceiling. What this application will turn on, the defence submits, is how much weight is attributable to the Crown’s delay in disclosing the video recording of the Complainant’s police interview on August 30, 2019. In the defence’s submission, this case exemplifies the attitude of complacency in the criminal justice system that the Majority decried in Jordan.
[16] The Crown submits that, starting with the defence concession regarding this period from May 12, 2021 to August 19, 2021, this leaves a delay only 15 days above the ceiling. It then goes on to insist that the Crown properly fulfilled its disclosure obligation. It also submits that the period from December 20, 2019 to February 21, 2020 is attributable to the defence, as delay was occasioned by the Applicant’s requested adjournments to confirm his counsel’s retainer. It insists that the Crown did not “lay in the weeds” as submitted by the defence, and that the Crown was ready to move the matter forward.
[17] I agree with the submission of the Crown in this regard. The Crown was not cavalier in fulfilling its disclosure obligations. The DVD of the police interview of the Complainant was not requested by initial counsel Jesse Dostal or by M. T-S. It was provided promptly when the sensitive material undertaking document was signed by counsel. Other disclosure had properly been provided before that.
[18] During the evolution of this case, I find that there are several delays attributable to the Applicant. These include the periods:
i) from November 28, 2019 when the Applicant had obtained his legal aid certificate but was not able to locate counsel until June 11, 2020, when counsel Jesse Dostal requested disclosure (197 days, or 6 months and 15 days delay); and, ii) from February 10, 2021, when new counsel was obtained, until August 19, 2021, (the first JPT with new counsel Scott Reid) (191 days, or 6 months 10 days delay).
[19] These two delays attributable to the defence (1029 days – 197 days – 191 days = 641 days, or 21 months and 2 days) leave a Net Delay of 641 days, or 21 months and 2 days.
[20] I have therefore found that the net delay, even before consideration of discrete exceptional circumstances, does not exceed the presumptive 30-month Jordan ceiling for matters to be tried in the Superior Court of Justice. But further regard needs to be had, of course, to the looming elephant in the room: the impact of the Covid-19 pandemic, particularly on the ability to hold jury trials in the Superior Court of Justice.
[21] Presumptive adjournments due to the Covid-19 pandemic constitute exceptional circumstances that must be deducted from the total delay: R. v. Pinkowski, 2021 ONCJ 35, and R. v. Truong, 2020 ONCJ 613.
[22] As stated by Nakatsuru J. at para. 70 in R. v. Simmons, 2020 ONSC 7209:
Second, 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.
[23] The Respondent Crown submits that defence delay was attributable until June 11, 2020, but that the dates between June 12, 2020 and October 16, 2020, are exceptional delays that are outside the Crown’s control, due to successive presumptive adjournments in the Ontario Court of Justice from March 20, 2020 to October 16, 2020. This amounts to 127 days, or 4 months and 5 days. Subtracting this amount from 641 days leaves 514 days, or 16 months and 27 days, a sum well below the 30-month presumptive ceiling.
[24] In R. v. Hyacinthe, 2022 ONSC 1444 at paras. 17-18, Harris J. provided a general conclusion about how the delays caused by the Covid-19 pandemic in the Superior Court of Justice of Ontario should be characterized:
17 It is universally acknowledged in the jurisprudence that the pandemic is an exceptional circumstance: see R. v. Khattra, 2020 ONSC 7894 (Ont. S.C.), at paras. 75-78; R. v. Simmons, 2020 ONSC 7209 (Ont. S.C.). No rational argument can possibly be made otherwise. It is my view 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.
18 The Crown only requests that 16.5 months of the 24 months be labelled pandemic delay. This is an overly generous position. The jury trial could not commence as scheduled on April 20, 2020 due to the COVID order halting jury trials. It was not until March 1, 2022, as the black cloud of COVID appears to be lifting, that jury trials have recommenced. I see the delay caused by the exceptional circumstance of COVID as running from April 20, 2020 until March 1, 2022, a period of about 22 months.
[25] I agree with and adopt the finding of Justice Harris. It certainly reflects the experience in Brantford. The sclerotic effect of the Covid-19 pandemic upon jury trials in the Province of Ontario during the period March 2020 to March 2022 has, despite the best efforts and fervent aspirations of judges, court staff and trial coordinators to the contrary, been largely unavoidable. It is certainly not attributable to the Crown. It clearly constitutes a discrete exceptional circumstance for the purposes of the Jordan analytical framework for the purpose of assessing delay in the context of s.11(b).
[26] Taking the discrete exceptional circumstance of the delays in jury trials caused by the effects of the Covid-19 pandemic in the Province of Ontario into account, and subtracting this from the Net Delay, it is patent that the remaining delay falls substantially below the presumptive ceiling. At its highest, the remaining delay was 514 days, or 16 months and 27 days. It is arguably even lower applying the approach advocated by Justice Harris, with which I agree.
[27] The defence has not fulfilled its onus to show that any remaining delay is unreasonable. It did not take meaningful steps to expedite the process. There have been systemic factors attributable to the Covid-19 pandemic, in particular the difficulty in scheduling jury trials. This is not a rare or clearest of case that warrants a stay.
[28] I conclude that the Applicant’s right to trial within a reasonable time pursuant to s.11(b) of the Charter has not been infringed. There is thus no need to consider the remedy of a stay under s.24(1).
Order
[29] The Application is dismissed.
M. Gibson. J.
Dated: April 25, 2022
