Court File and Parties

COURT FILE NO.: CRIM J(P) 599/20 DATE: 2022 05 06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARY THOMPSON

Counsel: D. Ida, for the Crown R. Geurts, for the Defendant

HEARD: April 29, 2022

11(b) Application

MILLER J.

[1] Mary Thompson is charged with, between the 1st day of January 2012 and the 31st day of December 2017, defrauding G.T.A.A. of money over $5,000.

[2] Ms Thompson applies for a stay of proceedings as a s. 24 (1) remedy due to a violation of her right, pursuant to s. 11(b) of the Charter, to trial within a reasonable time. Her trial, estimated to take four to five weeks with a jury, is scheduled to commence May 24, 2022, and is anticipated to be completed by June 27, 2022 at the outside. Her position is that the delay exceeds the ceiling set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] The Crown’s position is that after taking into account defence delay and delay attributable to the exceptional circumstance of the COVID-19 pandemic, the remaining delay is below the presumptive ceiling set in Jordan, and there should be no stay of proceedings.

Background

[4] In August 2017, Mary Thompson was suspended from her employment in the Planning and Projects Department of the G.T.A.A. pending an investigation. In December 2017, Mary Thompson was formally terminated from employment with the G.T.A.A.

[5] On May 9th, 2019, Mary Thompson was arrested and charged with Fraud Over $5,000 and released on a Promise to Appear for June 10, 2019. The Information was sworn May 30, 2019.

Timeline

[6] At the first appearance on June 10, 2019 counsel for Ms Thompson indicated there was no disclosure available and adjourned the matter to July 8, 2019.

[7] On July 8, 2019, counsel for Ms Thompson indicated that initial disclosure was picked up. The matter was adjourned to July 29, 2019 for review of disclosure.

[8] On July 29, 2019 counsel for Ms Thompson indicated he had canvassed dates with the assigned Crown for a Crown Pre-trial. The matter was adjourned to August 19, 2019 to allow for the pre-trial meeting with the Crown.

[9] On August 19, 2019 a Judicial Pre-trial was set for October 29, 2019.

[10] On October 29, 2019 the Judicial Pre-trial was held and the preliminary inquiry was set to be heard November 16-20, 2020.

[11] The Preliminary Hearing proceeded November 16-20, 2020. By November 20, 2020 the Crown had called all its witnesses, but another day was required because Ms Thompson was choosing to testify on the preliminary hearing. Counsel for Ms Thompson indicated that there would be an 11(b) waiver until the date set. On December 11, a continuing date for the preliminary inquiry was chosen and the matter adjourned to December 14, 2020.

[12] On December 23, 2020 the Preliminary Inquiry concluded. Ms Thompson was committed for trial. Committal was conceded. An exit Pre-trial was held and Ms Thompson was remanded to January 22, 2021 in the Superior Court.

[13] On January 22, 2021 at the first appearance in the Superior Court of Justice, counsel for Ms Thompson indicated he was not retained for trial purposes and only retained up to pretrial. The matter was adjourned to February 5, 2021.

[14] On February 5, 2021 the Superior Court of Justice Judicial Pretrial was set for February 17, 2021 and was held that date. The matter was then further adjourned to February 25, 2021, before trial dates were set.

[15] On February 25, 2021, the Court offered November 15, 22, or 29, 2021 to begin the trial. Ms Thompson was available for these dates; however, the Crown was not available. The trial date was set for January 10, 2022 – four weeks with a jury with a trial readiness confirmation date of December 17, 2021.

[16] On December 17, 2021, a Notice to the Profession was released indicating that jury trials would be suspended between December 20, 2021 and February 7, 2022. At the appearance that day the matter was adjourned to be spoken to on January 7, 2022 to vacate the trial dates and to set new dates.

[17] On January 7, 2022, the first new trial date of May 24, 2022 (the current trial date) offered by the Court was accepted by both Ms Thompson and the Crown.

[18] On January 19, 2022, a Notice to the Profession was released indicating that jury trial suspension would be extended to February 28, 2022.

Law

[19] 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.

[20] 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.

[21] A useful summary of the process for 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).

[22] In the present case, the delay to the end of the currently scheduled trial, on either the calculations of Ms Thompson or those done by the Crown, exceeds the presumptive ceiling set by Jordan.

Analysis

[23] Ms Thompson’s position is that the calculation of the total delay should run from the date of her arrest May 9, 2019, to the end of the currently scheduled trial June 24, 2022. This is a period of 1,143 days or 37.58 months.

[24] Ms Thompson submits that the delay surpassed the Jordan threshold on November 9, 2021. Further, Ms Thompson also submits that in considering whether the delay is unreasonable the Court should consider the pre-charge delay beginning from the date she was terminated from her employment.

[25] Ms Thompson agrees that there is some defence waiver but does not agree there is defence delay.

[26] Ms Thompson concedes that the COVID-19 pandemic and its effect on this case amounts to an exceptional circumstance in the s. 11(b) analysis. Ms Thompson submits that the delay between January 10, 2022 and May 24, 2022, a cumulative total of 134 days, is the only time that should be attributed to the Covid-19 pandemic impact.

[27] The Crown position is that the total delay is 1,121 days or 36.85 months from when the information was sworn May 30, 2019 to end of the currently scheduled trial June 27, 2022. The Crown concedes that this delay exceeds the presumptive ceiling.

[28] The Crown submits that defence delay amounts to 111 days or 3.65 months reducing the net delay to 1,010 days or 33.21 months. The Crown further submits that the total delay caused by the COVID-19 exceptional circumstance 134 days or 4.41 months. The Crown submits that the remaining delay is 876 days or 28.79 months.

[29] The Crown position is that the remaining delay is below the presumptive ceiling and the onus is therefore on the Applicant to establish that is one of the rare and clear cases where a stay is warranted. The Crown submits that this is not one of those cases.

Commencement of the Jordan Timeline

[30] Ms Thompson’s position is that the delay calculation should begin on May 9, 2019 when she was arrested and not May 30, 2019 when the Information was laid.

[31] The Crown’s position is that the delay should be calculated from the date the Information was sworn.

[32] The Crown relies on the following cases in support of their position that the calculation of delay does not commence until the swearing of the Information: R. v. Kalanj, [1989] 1 SCR 1594, at para 16. R. v. K.E., 2013 ONCA 175, [2013] O.J. No 1280, at para 20. R. v. Cody, 2017 SCC 31, at para 21.

[33] More recently, the Ontario Court of Appeal addressed this particular issue in R. v. Allison, 2022 ONCA 329 wherein there was a seven week period between the arrest and when the Information was sworn. The Court rejected the appellant’s argument that delay should have been calculated from the date of arrest. The reasons given, which apply equally to this case, are set out at paragraphs 41-43:

41 ...there is binding authority from the Supreme Court of Canada that addresses this point directly. In R. v. Kalanj, [1989] 1 S.C.R. 1594, the majority of the Supreme Court relied on the text of s. 11(b) of the Charter, which states that "any person charged with an offence . . . has the right to be tried within a reasonable time" [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of the arrest.

42 … in Jordan, the Supreme Court could have revisited this issue in setting the framework for calculating delay but did not do so. Instead, the Court affirmed, at paras. 47-49, that the time for calculating delay runs from "the charge to the actual or anticipated end of trial" [emphasis added]. As noted by Code J. in R. v. Gandhi, 2016 ONSC 5612, at para. 4, "[a]lthough the majority [in Jordan] changed fundamental aspects of the prior s. 11(b) framework, there was no indication that the Court wished to alter the longstanding principle that s. 11(b) delay begins to run from the swearing of the Information".

43 …since Jordan, this court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b) Charter application, time starts to run from the date of the charge and not the date of the arrest. Most recently, in R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 55, Trotter J.A. cited R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 22, which was decided before Jordan, to emphasize that "for s. 11(b) purposes, '[t]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, 'charge' means the date on which an information is sworn or an indictment is preferred'".

[34] I find that the calculation of total delay in this case runs from May 30, 2019 when the Information was sworn to June 24, 2022, the anticipated end of the currently scheduled trial. This is 1,121 days or 36.85 months.

[35] I accept the Crown position, based on R. v. Shaikh, 2019 ONCA 895 and not disputed by Ms Thompson, that the calculation from days to months for the Jordan analysis is done by dividing the total number of days by 30.417 and rounding down to the nearest decimal.

[36] I find therefore that the total delay is 1,121 days or 36.85 months. This is delay is above the Jordan threshold.

Defence Delay

[37] 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.”

[38] The Crown position is that the total defence delay and waiver is 111 days or 3.65 months. The Crown position is that this is comprised of 33 days of defence waiver from November 20, 2020 to December 23, 2020; 14 days of defence delay from January 8, 2021-January 22, 2021 and 35 days of defence delay between January 22 and February 25, 2021. Even this amount of waiver and delay comprises only 82 days.

[39] The Crown’s position is that there was an explicit defence waiver of 11(b) on November 20, 2020, until the anticipated next court date for preliminary hearing continuation date which ended up being December 23, 2020. The Crown completed calling all of their evidence on November 20, 2020 which was the last day scheduled for the preliminary hearing. Ms Thompson wanted to testify on the preliminary hearing however, and so an additional day of court time was required for the continuation. This period of time is 33 days.

[40] Counsel for Ms Thompson agrees that there was an 11(b) waiver and that it may be open to the Court to find that the waiver was to December 23, 2020.

[41] The transcript from November 20, 2020 contains the following interchange between the Court and counsel for Ms Thompson:

The Court: ….The Crown has called the evidence they intend to call in order to seek committal. The defence is proposing to call evidence on its - in its own case at the preliminary hearing, one witness and it’s hoped that could be done in a day. Mr. Guerts: Yes The Court: Committal is going to be consented to once that’s done and 11(b) is going to be waived by the defence until the next day, until the next day that we, we can get. Is that fair? Mr. Guerts: Yes

[42] I find that Ms Thompson waived 11(b) from November 20, 2022 until the preliminary hearing continuation date of December 23, 2020, a period of 33 days.

[43] The Crown’s position is that there was defence delay between January 8, 2021 and January 22, 2021. On December 23, 2020 when Ms Thompson was committed for trial the first appearance in the Superior Court offered was January 8, 2021. Counsel for Ms Thompson requested the matter go to January 22, 2021 instead.

[44] Ms Thompson’s position is that the transcript should speak for itself.

[45] The transcript of December 23, 2020 indicates that the Crown was available January 8, 2021 but counsel for Ms Thompson asked that the matter go to January 22, 2021 as he was retained only for the preliminary hearing and “Ms Thompson would benefit from as much time as possible to make the decision she needs to make and go from there.”

[46] I find there was defence delay from January 8, 2021 to January 22, 2021, a period of 14 days.

[47] The Crown position is that there was further defence delay between January 22, 2021 and February 25, 2021 when the defence finally agreed to set dates for trial. Ms Thompson declined to set trial dates on January 22, 2021, February 5 and 17, 2021 although the Crown was ready to set trial dates, having information as to witness availability each time. The Crown position is that this encompasses another 35 days of defence delay as had the trial date been set on January 22, 2021, the trial dates available presumably would have been correspondingly earlier.

[48] Ms Thompson’s position is that she was in a vulnerable position having retained counsel only for the judicial pre-trial, and not for trial, and it was reasonable for her to defer the setting of any trial dates until the judicial pre-trial was completed.

[49] The transcripts show that on January 22, 2021 Ms Thompson was not ready to set a judicial pre-trial, and the matter was adjourned to the next assignment court on February 5, 2021. I find that this period of 14 days is defence delay.

[50] The transcripts show that on February 5, 2021 Ms Thompson sought the earliest available judicial pre-trial date which was February 17, 2021. On February 5, 2021 the issue of setting trial dates was not raised and the transcripts do not reveal what trial dates might have been available.

[51] On February 17, 2021 a judicial pre-trial was held and there was the following exchange between Ms Thompson and the Court:

THE COURT: And we'll set the date then. Ms. Thompson, I could set a trial date today. I think I'd rather get a little more input and make sure we're setting enough time. So that's all right with you? MARY THOMPSON: Yes, that's fine. THE COURT: All right. Ms. Thompson is remanded to February 25th, 2021, at noon and it will be all the same numbers as today, Ms. Thompson. For a self-rep pre-trial it will be on the court record in a sealed file because it's pre-trial. If there's nothing further, thank you all.

[52] In the circumstances of this case I find that it was not unreasonable for Ms Thompson 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 do not find that the period between February 5, 2021 and February 25, 2021 was defence delay.

[53] I find the total defence waiver and delay was (33 + 14 + 14) 61 days.

[54] The Net delay is therefore (1,121-61) 1,060 days or 34.85 months.

COVID-19 Exceptional Circumstance

[55] The Crown’s position is that Covid-19 caused the suspension of jury trials scheduled to take place on and between December 20, 2021 to February 7, 2022 and then the suspension of jury trials to be extended to February 28, 2022. The Crown’s position is that the delay caused by this exceptional discrete event, in this case runs from the anticipated end of the first scheduled trial of February 11, 2022 to the anticipated end of the currently scheduled trial date of June 27, 2022 is 134 days or 4.41 months.

[56] Ms Thompson agrees that the delay related to the COVID-19 pandemic is an exceptional circumstance and she agrees that the number of days to be attributed to the exceptional circumstance is 134 days although she would calculate it from January 10-May 24, 2022 – the beginning dates for each of the scheduled trials.

[57] 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.

[58] In this case the trial scheduled to begin January 10, 2022 did not proceed due to a pandemic-related suspension of jury trials. It was postponed to the present trial date of May 24, 2022 as a result of the COVID-19 pandemic.

[59] 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.

[60] 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.

[61] 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.

[62] 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.

[63] 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.

[64] 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.

[65] 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.

[66] 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).

[67] In R. v. Li, 2021 ONSC 5700 ([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.

[68] 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 but then had to be adjourned due to COVID-19 restrictions, 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 particular pandemic restrictions took effect.

[69] I find therefore that the COVID-19 exceptional circumstance in this case encompassing either the period from the beginning of the first trial to the beginning of the re-scheduled trial, or from the anticipated end of the first trial to the anticipated end of the re-scheduled trial is 134 days.

[70] I find that the Remaining delay is therefore (1,060-134) 926 days or 30.44 months.

Whether the Remaining Delay is Unreasonable

[71] The Remaining delay here is over the presumptive ceiling. It falls to the Crown to show that the delay is nonetheless reasonable.

[72] I find there is nothing exceptional about the case, its complexity or any other special circumstance that would make this presumptively unreasonable delay reasonable.

[73] In coming to this conclusion, I note that with the very few exceptions that I found to be defence waiver or defence delay Ms Thompson did everything she could to move the matter forward. I also note that she suffered the additional prejudice of the time that passed between when she was dismissed from her employment to the time she was formally charged with this offence. This was approximately 17 months.

[74] I note that in Ms Thompson’s police interview on May 9, 2019 the investigating officer said to her: “But in this office, there's such, um, a backlog of, of fraud related offences that we're behind by like a year. So it takes us a year to catch up, which is why you're probably like why is this kind of happening now?”

[75] This pre-charge delay left Ms Thompson in a bit of a no-man’s land wherein she did not know whether she would be criminally charged. Because of this, had the remaining delay calculation fallen just below the presumptive ceiling, I might well have found that the delay in this case was nonetheless unreasonable.

[76] In all of the circumstances, I find that Ms Thompson has shown that the delay to trial in her case is unreasonable; it violates Ms Thompson’s s. 11(b) Charter rights and her application for stay pursuant to s. 24(1) is granted.

MILLER J. Released: May 6, 2022

COURT FILE NO.: CRIM J(P) 599/20 DATE: 2022 05 06

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARY THOMPSON RULING s. 11(b) MILLER J.

Released: May 6, 2022