Court File and Parties
Court File No.: CR-21-70000497-0000 Date: 20220504 Superior Court of Justice – Ontario
Re: R. v. Jordan cann
Before: S.F. Dunphy J.
Counsel: Ashley Dresser, for the Defendant Applicant Cara Sweeney, for the Respondent Crown
Heard at Toronto: April 28, 2022
Reasons for Decision – s. 11(b) Application
Note: These reasons for decision, while anonymized to protect the identity of the complainants, are subject to a ban prohibiting the publication of any information that could identify the victims and minor witnesses pursuant to s. 486.4(2.1) and (3) of the Criminal Code.
[1] This application by the defence under s. 11(b) of the Charter considers the proper application of the R. v. Jordan, 2016 SCC 27 principles in the context of the backlogs and delays that have re-appeared in our criminal justice system by reason of the pandemic emergency. The Applicant was arrested on November 26, 2019, and has received a jury trial date in Superior Court projected to end on November 25, 2022 – almost three years or 36 months to the day from his arrest.
[2] While the parties are at odds about the proper characterization of various periods of alleged defence delay, I find that the period of delay attributable to exceptional circumstances – the pandemic emergency and the unavailability of one of the two complainants at the preliminary hearing - brings the net delay well under the thirty-month ceiling in Jordan rendering the issue of defence delay in these circumstances moot.
[3] The delay attributable to the pandemic is not limited to a mechanical count of the number of days where the relevant court was closed for the purpose of confirming hearing dates. From March 2020 until earlier this year, our courts have found it necessary to suspend both virtual and in‑person hearings, to suspend scheduling trials and hearings or to suspend jury trials for extended periods of time. The unavoidable impact of those emergency decisions was to create a very significant backlog of unresolved cases awaiting trial despite every effort to hold Zoom trials, to facilitate re-elections and resolution discussions and other measures. The extraordinary systemic delay caused by the Covid emergency in the Toronto region is far from over and more than accounts for any failure of this matter to reach a conclusion within the “pre-Covid” norms established by Jordan.
[4] There is no doubt that but for the emergency conditions attributable to the pandemic and the backlogs directly caused by it, this jury trial would have been scheduled well within the Jordan-prescribed time delays. Those delays are still working their way through the system in the Toronto region. Despite every effort to mitigate the inevitable delays caused by Covid, including a significant stripping of judicial resources available to other practice areas, it will be some time yet before this exceptional circumstance has worked its way through our system.
[5] I am also satisfied that the delay occasioned by the unavailability of one of the complainants was not the result of any lack of diligence on the part of the Crown and that the resulting delay was mitigated as far as reasonably practicable as soon as the problem was identified. A date for the examination of this witness was agreed between the parties which would have resulted in a 66 day delay for a case that was still on Jordan track but, unfortunately, that return date was superceded by another pandemic-related stay at home order and the hearing had to be rescheduled. This caused an additional delay of 3.5 months that could not have been foreseen.
[6] Accordingly, this application cannot succeed and must be dismissed. My more detailed reasons follow.
Background facts
[7] The 27-year-old defendant faces a total of five charges arising from an incident in October 2019 where he is alleged to have paid money to obtain sexual services from two girls aged 13 and 15 years at the time. He faces two counts under s. 151 of the Criminal Code, two counts under s. 286.1(2) of the Criminal Code and one count under s. 163.1(2) of the Criminal Code the latter charges relating to a film made during the course of the encounter. He was arrested on November 26, 2019. To preserve the anonymity of the complainants - who were not connected to the defendant prior to this incident – I shall refer to them as C1 and C2 respectively and refrain from mentioning any potentially identifying details of either in these reasons. Such details are subject to a publication ban ordered by me pursuant to s. 486.4(2.1) and (3) of the Criminal Code.
[8] The following is a brief chronology of the major events in the pre-trial procedures of this case leading to the anticipated conclusion of the estimated two-week jury trial on November 25, 2022:
Issues to be decided
[9] The primary point of disagreement between Crown and the Applicant concerns the proper accounting of the delay due to the exceptional circumstances of Covid 19 and the delay due to the unavailability of C2 for the preliminary inquiry originally scheduled to be completed on February 19, 2021, but not completed until August 13, 2021. There were conflicting arguments regarding what periods if any ought to be accounted for as defence delay under the Jordan framework which I have not found it necessary to decide.
[10] Accordingly, I would state the issue in this case as follows: “what portion of the delay ought to be ascribed to exceptional circumstances under the Jordan framework?”
Analysis and discussion
(i) Delay in 2020
[11] The Covid state of emergency resulted in a Province-wide shut down of in-person court operations effective Tuesday March 17, 2020. Successive notices issued by the Chief Justice adjourned criminal proceedings until fixed future dates. On April 20, 2020, the court announced that jury trials would not recommence prior to September 2020. Understandably, hearing dates for in-custody matters were given priority as was the rescheduling of hearings that had been automatically adjourned due to the pandemic. The earliest date that hearings could be booked in the Toronto region for out-of-custody matters was September 28, 2020.
[12] This case was just finishing its in-take phase as the pandemic struck. A Crown Pre-trial had been held and disclosure issues were in the process of being dealt with. April 3, 2020 had been selected as a return date to schedule an initial judicial pre-trial. That date was postponed.
[13] In fact, the parties managed to maintain a significant degree of forward progress despite the shut-down, albeit somewhat hampered by a slow-down in response times during the stay at home period where access to offices was limited. An initial virtual JPT was held on April 14, 2020, before Silverstein J. The next step in the procedure would have been to set a date for a preliminary inquiry and/or for the accused to make his election as to mode of trial. Issues arose that prevented this from occurring:
a. Defence counsel had issues with accessing a USB stick containing Crown disclosure. From reviewing the correspondence, it appears that at least some delay in getting that issue “fixed” can be laid at the feet of counsel not pursuing it with any urgency and with the necessity of having real people making visits to otherwise closed offices to attempt to remedy the problem. Be that as it may, this issue was eventually resolved after about a month of back-and-forth and contributed nothing to any actual delay given the other issues being dealt with in tandem and given the inability to schedule a preliminary inquiry until September 28, 2020;
b. Defence counsel disclosure requests included a request for a copy of a surveillance camera video seized from the accused containing nude images of the complainants which required a court order to be turned over;
c. Other records requested by the defence included third party school records and records of the two complainants for which s. 276 and s. 278 applications would be required (these issues remain outstanding and are scheduled to be addressed on October 6, 2022); and
d. There was a change of defence counsel announced in early May.
[14] The non-video related disclosure issues were all sorted out by the time of the third JPT held on June 23, 2020. The defence continued to refuse to move forward without the security video until the fourth JPT held on July 23, 2020, by which time the defence had received the video and agreed that it was prepared to set a date for the preliminary inquiry.
[15] Ms. Dresser maintained that she could not properly advise her client regarding an election or a preliminary inquiry until she had reviewed the video made by her client’s security system which in her view would provide necessary evidence to consider regarding the credibility of the complainants and regarding the strength of the expected defence of the reasonable belief of the accused regarding the age of the complainants.
[16] I attach virtually no weight to the double-hearsay comments attributed to Silverstein J. on the importance of this information to that decision reflected in the affidavit of Ms. Cristovao. Her affidavit is not based on more than a file review of notes made by others and does not appear to contain any first-hand information at all.
[17] I have grave difficulty in accepting that the surveillance video was an actual obstacle to Ms. Dresser moving forward. Counsel may not have had access to the security video taken by her client’s security camera but she did have access to her client who not only saw the video but also is the very person whose reasonable belief regarding the age of the 13 and 15 year old complainants would be at issue were the anticipated defence to be raised. I cannot accept that a reasoned basis to advise her client regarding his election required access to a video portraying frontal images of the two underage complainants in the nude.
[18] The defence maintained that the discrete exceptional circumstance delay attributable to the Covid emergency should begin on July 23, 2020, (the date of the fourth JPT) and end on September 28, 2020, when the ability to book preliminary hearing dates resumed.
[19] The Crown attributed the period from June 23, 2020 (the third JPT) until July 23, 2020 (the fourth JPT), as defence delay on the theory that the defence unreasonably refused to move forward with fixing dates until it had received a video that ought not in the circumstances have been used as an excuse to avoid moving forward. Thereafter, the Crown took the position in its factum that the Covid delay begins on July 23 until October 7, 2020, when the date of the preliminary inquiry was set. In oral argument, the Crown suggested that the entire delay could also be characterized as exceptional circumstance due to Covid rather than calling the first period defence delay.
[20] There is an air of artificiality to the positions adopted by both parties. The fact of the matter is that no matter how swiftly Crown or defence had moved on the outstanding disclosure issues or taking a decision on electing mode of trial, there was simply no prospect of actually obtaining a preliminary inquiry hearing date before the opening of the administrative window to do so on September 28, 2020.
[21] Cases such as R. v. Simmons, 2020 ONSC 7209 at paras. 68-74 have taken the view that the entire period the courts were shut down ought to be considered an exceptional circumstance. Nataksuru J. described the Covid emergency as an event that has had “a system-wide impact of unprecedented proportions, never seen before in our lifetime”. Those observations made in the relatively early stages of the pandemic are even more apposite today when still more trials have been adjourned or delayed by subsequent periods of court closures.
[22] The systemic impact of the pandemic emergency in the Toronto region is particularly acute in the case of jury trials. These cannot be held virtually. Our courtrooms were not designed with social distancing of jurors in mind and the logistics of sequestering jurors in the face of public health restrictions posed still more challenges to re-opening during the emergency. Aggressive actions were taken to mitigate the delays both during the periods of court closures and following. Our courts have embraced virtual hearings and reaped considerable dividends in terms of efficiency. Initiatives were undertaken to tackle delay with a focus on procedures to facilitate and expedite resolution or reelections. Judicial resources were stripped from other practice areas and re-deployed in criminal to prioritize reduction of the backlog. The system has not stood still but the sheer weight of number of cases not heard over the months of court shut-downs during the emergency will take time to work its way through the system no matter how many mitigation strategies are put in place.
[23] The period from March 17, 2020 until October 7, 2020, covers the time from when the courts were closed until the earliest date that the parties could arrange a conference to book a hearing date with the trial coordinator’s office after the window for booking hearings opened again on September 28, 2020. That period of time (204 days) exceeds the six-month time period by which the projected end of Mr. Cann’s trial will exceed the 30-month Jordan window. In my view, that entire time frame is properly characterized as a discrete exceptional circumstance and on that basis alone this application ought to be dismissed.
[24] What could be done to advance matters towards trial during the periods of shut-down was done. All of the disclosure-related obstacles were dealt with and the parties were in a position to request a preliminary inquiry hearing date long before the window for doing so opened. The relative diligence or reasonableness of the parties in May, June and July 2020, had no impact whatsoever on the speed with which this matter moved forward towards trial. The limiting factor was not the diligence of either side but the inability to schedule a hearing before September 28, 2020. It would be unrealistic to expect that this common fact underlying the dealings between them had no impact on the urgency with which both sides tackled the outstanding issues that needed to be cleared. As long as the issues were resolved by September 28, 2020 – and they were long before then – nothing the parties did before then would alter the timeline to trial. I decline to pick an artificial date by which the parties might have been ready but for the Covid emergency. That date would very likely be in early June 2020, but selecting such a date would be entirely artificial and would ignore the cumulative delay building in the system by reason of the cancellation of in-person attendances for such an extended period of time.
[25] This first Covid exceptional circumstance is thus attributed a value of 204 days (March 17 – October 7, 2020). This duration of this exceptional circumstance alone is sufficient to dispose of this application.
(ii) Delay in 2021
[26] The parties were able to secure a two-day preliminary inquiry hearing date for February 18-19, 2021. In the circumstances, it appears to me that they won the lottery in obtaining such an early hearing date despite the backlogs built up in the system during the first period of Covid shut-downs. Had the hearing been completed at that time and committal ordered or conceded, the matter would have been transferred from the Ontario Court of Justice to the Superior Court of Justice well within the timelines contemplated by the Jordan framework despite the Covid delays to that point.
[27] Unfortunately, the matter was not able to be completed in the scheduled two days due to the unavailability of C2.
[28] In mid-January 2021, approximately one month prior to the preliminary inquiry, the Crown learned that C2 was out of town at a residential school program in a remote location. This was learned when arrangements were being made to change the hearing format from an in-person one (with the victims testifying via a video link) to a fully virtual one. C2 was at a location that is generally known not to have reliable internet connections even if Zoom had been a viable option. She would not be returning until several weeks after the scheduled dates for the preliminary inquiry. By this time, another stay at home order was in effect in the Province. This information was promptly relayed to the defence and the parties planned the preliminary hearing based on the common understanding that C2 would not be able to testify at that time and that the hearing would have to be resumed at a later date to receive her testimony.
[29] The defence asks me to attribute the delay entirely to the Crown on the theory that it was the Crown’s responsibility to have ensured the witness was available and because of the Crown’s change of strategy by examining its witness in chief in lieu of relying solely on her prior statement. It is alleged that the “change of strategy” prolonged the hearing such that it could not have been completed in the scheduled two days at all events. I disagree.
[30] The applicant speculates without evidence that the Crown may have failed to impress the importance of the hearing date adequately upon C2’s guardians or otherwise failed to take adequate steps to ensure C2 was present on the scheduled hearing date. No such objections were made at the time or on the record when the preliminary inquiry was adjourned to April 26, 2021, to hear from C2.
[31] There is no basis to criticize the actions taken by Crown after it learned of C2’s absence in mid-January. The witness was a minor and was at a remote location with no realistic prospect of even a remote attendance via Zoom. Given the lock-down orders in effect Province-wide until the eve of the hearing and regionally thereafter, it is hard to imagine what steps could have been taken to procure her attendance at all events. The suggestion that the Crown could or should have taken further steps to impress the importance of attending upon the witness’ guardians prior to January is pure speculation.
[32] The simple fact of the matter is that C2 was not available through no fault of the Crown and there was no realistic prospect of that state of affairs changing no matter how energetic and diligent the Crown’s actions might have been after learning of this fact. This was an entirely unforeseen and unforeseeable circumstance from the Crown’s perspective and I decline the invitation to apply 20:20 hindsight to a perfectly reasonable course of action adopted by the Crown based on the circumstances then known.
[33] I also see no merit in second-guessing the Crown’s tactical decision to examine C1 in chief at the hearing rather than simply submitting her to cross-examination. The necessity of a further day of hearing was already known by both sides well before the hearing began and the Crown’s alleged tactical change of heart had no impact on the timing of the completion of the preliminary inquiry whatsoever due to the unavoidable absence of C2.
[34] The preliminary inquiry was adjourned on February 19, 2021 until April 26, 2021. There is no indication that any earlier date was feasible given the requirements to have Crown, defence, witness and the court available. The trial coordinator offered the parties April 23 and April 26 – the parties both confirmed April 26 was convenient and the date was booked.
[35] Completing the preliminary inquiry on April 26, 2021, would still have left enough time for the matter to be transferred to Superior Court well within the Jordan-prescribed time delays despite Covid and the unavailability of C2 in February. However, Covid was not yet finished disrupting the functioning of the criminal justice system in Ontario.
[36] In early April 2021, yet another stay-at-home order was made which persisted until early June 2021. On April 22, 2021, the trial coordinator’s office advised the parties that the April 26, 2021 hearing date was suspended by virtue of the Ontario Court of Justice suspension of in‑person and virtual hearings and invited the parties to make contact with the trial office after May 10, 2021, to obtain a new date. Over the following weeks the parties corresponded with each other and the trial coordinator’s office looking for dates that worked for everyone. When none of the suggested June dates were available to the court, the court offered dates in late July and August 13, 2021. After some further correspondence, everyone confirmed their availability for August 13, 2021 and the date was confirmed.
[37] The evidence of C2 was in fact received on August 13, 2021, and the defence conceded committal with the result that the matter was transferred to Superior Court and a first appearance was made in assignment court on September 20, 2021.
[38] I find that the delay from February 19, 2021 until April 26, 2021, was an unforeseen and unforeseeable delay brought about by the unavailability of C2 to testify. This was an exceptional circumstance and I am satisfied that the Crown was duly diligent in making the delay as brief as reasonably practicable. The initial period of delay was relatively brief even by pre-Covid emergency standards and was as short as the court’s calendar would allow, a calendar that was – it must be emphasized – already under considerable stress by reason of the Covid emergency and the growing backlog in the number of deferred/delayed hearings.
[39] This second exceptional circumstance is thus 66 days (February 19, 2021 – April 23, 2021).
[40] I also find that the delay from April 26, 2021, until the preliminary inquiry was completed on August 13, 2021, was a third exceptional circumstance by reason of the Covid emergency.
[41] The hearing was expected by all parties to resume on April 26, 2021, and it was only just prior to that date that the parties realized that the order suspending out‑of‑custody hearings applied to in‑person and virtual hearings. The emergency measures taken in response to Covid was the only reason the hearing did not proceed as planned.
[42] The August 13 return date was arranged promptly after it was possible to schedule hearings again in mid-May and was the earliest date available to the court and the parties. There is nothing in the correspondence passing between the parties suggestive of any lack of diligence on the Crown’s part in obtaining the earliest possible return date. To the contrary, the court’s relatively limited time availability appears to have played the most significant role in the length of the delay. The limited availability of court resources and increased demand upon them due to the growing backlog was itself a downstream impact of the Covid emergency even if the degree of impact upon Justice Pringle’s calendar in particular cannot be calculated with precision.
[43] The period of time attributed to this third exceptional circumstance (April 26, 2021 until August 13, 2021) was 109 days.
[44] Given the aggregate of exceptional circumstances that I have found, I find no need to delve into the reasons why it took from September until mid-November to complete the Superior Court pre-trial process and secure a hearing date for the trial. There can be no doubt that at least some of the delay was attributable to the contemplated defence applications under s. 276 and s. 278 of the Criminal Code – applications that had been under discussion since May 2020 – as well as the limited retainer of counsel that had not yet been confirmed either for trial or for those applications.
(iii) Trial Delay
[45] Prior to Covid, the Superior Court in the Toronto region had the systems in place to ensure that the comparatively few cases arriving in Superior Court in “Jordan trouble” could be prioritized such that there was every expectation that cases such as this one could have been scheduled for a jury trial within a comfortable margin of the Jordan deadline. That is no longer the case – the Covid backlog has effectively removed the maneuvering room that formerly existed and it will be some time before anything like a normal trial scheduling environment will return. Given the findings made in relation to the two exceptional circumstances in this case, I have not found it necessary to explore what further pandemic-related exceptional circumstance delays may also be appropriate on these facts nor have I examined defence delay.
(iv) Conclusion
[46] For the foregoing reasons, I find that the projected end of the applicant’s trial will occur well within the presumptive 30-month Jordan time limit after deduction of the exceptional circumstances that I have found. There no prospect that any amount of additional energy or diligence on the part of the Crown could reasonably have made any appreciable dent in the delay that has occurred. The application must be dismissed.
[47] For the avoidance of doubt, there shall be an order pursuant to s. 486.4(2.1) and (3) of the Criminal Code prohibiting the publication of any information disclosing the identity of the two complainants in this case. While these reasons have been carefully drafted to avoid disclosing any such details, the application record contains identifying information which must not be published.
S.F. Dunphy J. Date: May 4, 2022