COURT FILE NO.: CR-21-10000157
DATE: 20220602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
OLEKSANDER MARTIUK
Applicant
Melissa Atkin, for the Crown
Margaret Bojanowska, for the Applicant
HEARD: March 24, 2022
A. J. O’Marra J.
[1] Oleksander Martiuk has brought an application for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed under s. 11(b) of the Charter of Rights and Freedoms has been infringed.
[2] The applicant was arrested and charged with the offence of sexual assault on October 24, 2019, for an incident alleged to have happened on May 25, 2019, reported to police in October 2019. His trial in the Superior Court is scheduled to conclude on October 21, 2019. Accordingly, the time from the charge until the anticipated completion of the trial is 36 months.
[3] In R. v. Jordan 2016 SCC 27 the Supreme Court set a presumptive ceiling for delay in the Superior Court of Justice at 30 months calculated from the date of the charges to the actual or anticipated length of a trial. Any delay in excess of 30 months is presumptively unreasonable.
[4] In cases where the total delay, less delays waived either by the accused or exclusively caused by the defence, exceeds the presumptive ceiling of 30 months, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable due to exceptional circumstances.
[5] Particularly complex matters or discrete events that lie outside the Crown’s control as being reasonably unforeseen or unavoidable, and which delay the Crown could not have remedied due to those exceptional events is subtracted from the total delay to determine whether the presumptive ceiling has been exceeded.
Analytical Framework
[6] The Supreme Court in Jordan set out the analytical framework to determine whether a s. 11(b) violation for unreasonable delay has occurred:
(a) calculate the Total Delay, which is the period from the charge to the actual or anticipated end of trial;
(b) subtract Defence Delay from the Total Delay, which results in the “Net Delay”;
(c) compare the Net Delay to the presumptive ceiling;
(d) 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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(e) 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;
(f) if the Remaining Delay exceeds the presumptive ceiling, the court must consider whether there were exceptional circumstances such that the time the case has taken is justified and the delay is reasonable;
(g) if the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.[^1]
Overview of the Proceedings
Ontario Court of Justice
i) Arrest to Suspension of Courts due to COVID-19 Pandemic – 4.5 months.
[7] I have grouped the various time periods as the matter has progressed through the Ontario Court of Justice and Superior Court as follows:
[8] The applicant was arrested and released on a Promise to appear, October 24, 2019.
[9] December 4, 2019 - (1.5 month) First appearance at OCJ. Counsel was retained and appeared for the applicant. Crown had not yet received disclosure from the police; matter adjourned two weeks to provide disclosure.
[10] December 19, 2019 - (.5 month) Second appearance; defence confirmed initial disclosure had been provided. Matter adjourned for one month for disclosure review. Crown emailed defence to confirm disclosure received and to suggest booking JPT once counsel has opportunity to review disclosure. Judicial Pre-trial scheduled for February 11, 2020.
[11] February 6, 2020 - (1.5 month) Appearance in set-date court; counsel provided with complainant’s video statement. A Judicial Pre-trial was scheduled for February 11, 2020.
[12] February 11, 2020 - Judicial Pre-trial held at OCJ. Disclosure complete, except for two items: medical records and typed summary of the handwritten notes of a civilian employee of the police that was disclosed in initial disclosure in December 2019. Due to the recent Criminal Code amendments under Bill C-75 the parties were uncertain as to whether a preliminary hearing was still available for the offence charged. Counsel advised that further time was required for the accused to make his election, but the parties agreed to complete trial estimates in the event that the accused elected OCJ trial. Trial time estimated to require 5 days. During the JPT, counsel requested the metadata of the photos of the complainant’s injuries previously disclosed in December 2019.
[13] March 5, 2020 - Court appearance after JPT, adjourned at defence request to obtain instructions and further disclosure requested at JPT.
[14] March 12, 2020 - (1 month) Court appearance; counsel notes that some requested disclosure was still outstanding, but the assigned Crown who was to vet the materials was in a Superior Court trial. Matter adjourned four weeks at the Crown’s request.
ii) Suspension of Courts due to COVID-19 Pandemic – 6.5 months.
[15] March 15, 2020 - Ontario Court of Justice announced suspension of operations due to global pandemic.
[16] March 27, 2020 - Crown replied to counsel’s March 11, 2020, email apologizing for the delayed response due to jury trial and chaos due to pandemic shutdown; Crown advised that Crown is now of the view that the offence is, in fact, eligible for a preliminary inquiry.
[17] April 2, 2020 - Parties agree that a preliminary hearing is available and agree it will take one day and it can be set as soon as the Court begins scheduling dates.
[18] September 24, 2020 - Crown emails defence to advise that on September 28, 2020, the OCJ will begin scheduling matters not previously adjourned due to pandemic; parties canvass availability for call with the Trial Coordinator. No suggestion from defence that outstanding disclosure will prevent the matter from being scheduled.
[19] September 28, 2020 - OCJ begins setting dates for matters that had not previously been adjourned. Crown emails Trial Coordinator at 7:49 am to request scheduling conference. (6.5 months).
iii) Post-suspension - Set Date to Committal – 5 months.
[20] October 1, 2020 - Preliminary hearing date of January 22, 2021, obtained. No mention from defence counsel that outstanding disclosure items would prevent the matter from being scheduled.
[21] October 14, 2020 - Preliminary hearing dates put on record via Zoom in OCJ by counsel. No mention by defence counsel about outstanding disclosure.
[22] January 11-12, 2021 –Counsel consents via email to a s. 540(7) application by the Crown and concedes committal is conceded and is on consent. Counsel confirms committal and s. 540(7) application on consent.
[23] January 21, 2021 - Counsel calls Crown to advise that outstanding disclosure (i.e., medical records, photos with metadata, Heughan’s notes) had not been received. Crown emailed defence the three outstanding disclosure items.
[24] January 22, 2021 - Preliminary inquiry; parties prepared to proceed that morning, but hearing did not go forward due to technical issues. Court could have started preliminary hearing in the afternoon to hear the evidence of the complainant. However, the parties agreed that since the evidence of the complainant would not be completed in the time available, and the schedule of the judge hearing it would permit an early return to complete her evidence, it would be better to adjourn to get an earlier date and have the evidence all in one day. The preliminary inquiry was rescheduled for February 22, 2021.
[25] February 22, 2021 - Preliminary hearing held; accused committed to stand trial. The following day the Crown obtained counsel’s availability and scheduled the JPT at Superior Court. (5 months).
[26] Total time in the OCJ - 16 months.
iv) Committal to Anticipated Trial Completion Date – 20 months.
Superior Court of Justice
[27] March 12, 2021 - Superior Court JPT held. Crown emailed counsel to request availability for scheduling form to set Trial Dates. Counsel requests additional time before providing dates; counsel ultimately provides availability on March 22, 2021.
[28] March 25, 2021 - (1 month) Trial date set: 5-day trial Judge alone October 17, 2022, the first date offered by the Court, plus two interim motion dates, April 7, and June 3, 2022.
[29] March 25, 2021, to October 21, 2022 - (19 months) anticipated completion of trial.
[30] Total time in the SCJ - 20 months
v) Overall Time periods
[31] Summary: OCJ Arrest October 24, 2019, to Committal February 22, 2020 – 16 months. SCJ Committal in OCJ February 22, 2020, to Trial Completion October 21, 2022 – 20 months. Total Time: 36 months.
Discussion
[32] The overall delay to the anticipated completion of the trial in this matter is 36 months and exceeds the presumptive ceiling of reasonable delay as established in Jordan.
[33] In considering the framework as set out in Jordan there is no period of time that I attribute to defence delay.
[34] The significant delay in this matter was caused by the declaration by the World Health Organization of the global COVID-19 pandemic March 11, 2020, the subsequent declaration of a provincial state of emergency, and the direction in the Ontario Courts of Justice that all non-urgent criminal matters would be adjourned. By the end of September 2020 matters that had been adjourned began to be rescheduled, with priority for preliminary hearing and trial dates being given to in-custody accused and matters adjourned from previously scheduled matters during the suspension period.
[35] The parties agree that the period of court suspension and adjournments due to the COVID-19 pandemic is an exceptional event.
[36] The Crown submits that at least the 6.5 months from the declaration and suspension of non-urgent matters to setting a date for the preliminary inquiry should be considered in reducing the overall time period to below the presumptive 30-month ceiling.
[37] The applicant contends that had there been timely disclosure of further items requested it would have allowed the setting of a preliminary hearing or trial date sometime beyond the resumption of setting dates by the court.
[38] One has to be mindful of the exceptional intervening circumstances that occurred in March 2020 with the declaration of the COVID-19 pandemic and the effect upon the operation of the courts. It precipitated significant delays due to rescheduling of hundreds of cases in Toronto alone to ensure the safe reopening for all participants and the community at large.
[39] Numerous courts have noted that the declaration and impact of the COVID-19 pandemic is a quintessential discrete event – an exceptional event that resulted in proceedings being suspended and matters adjourned, which could not have been reasonably foreseen or anticipated.
[40] In R. v. Simmons, 2020 ONSC 7209, Nakatsuru J. observed that no reasonable person could have contended otherwise. In that case, he held that the entire period from the original trial date that had to be adjourned because of the pandemic to the new trial date, almost 10 months, should be attributed to the discrete exceptional event of COVID-19 and reduce the overall time period. In support of the conclusion, Nakatsuru J. provided several apt observations, which I adopt:
• Most trial courts have “deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed only the time period where trials have been actually suspended”.
• The impact of the 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 on how we do things and on the people who do them”. This 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 unprecedent proportions, never seen before in our time”.
• The public health crisis and its impact did not end on any specified date. Trials take place “in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and assessing what the Crown and the court can reasonably do to in mitigating the delay”.
• The impact of the COVID-19 pandemic on the judicial system is not over – “when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues”.
• Courts should be reluctant to cast blame or be overly critical of the justice system or its participants while meeting the challenges posed by the ongoing health crisis caused by COVID-19.
[41] In the case of R. v. Robinson, 2021 ONSC 2445 in which a date for trial had not been set prior to the COVID-19 pandemic and suspension of the scheduling of proceedings, once rescheduling commenced there was a recognition that there has been a cascading or “knock on” effect in setting dates after priority cases, those that had been adjourned from previously set trial or preliminary inquiry dates and/or in-custody accused.
[42] The position of the applicant that the delay in this matter is wholly speculative. While there was some delay in the disclosure of items requested that related to disclosure items previously disclosed, photographs of injuries taken by the complainant and a handwritten statement, it did not cause the applicant to delay making either an election to proceed by trial or preliminary hearing in the OCJ. The delay was caused by the declaration of the health emergency and suspension of proceedings, which caused a significant backlog of cases and the necessary triaging of cases to set dates. Further, in this instance, when the outstanding disclosure was provided the day before the date set for the preliminary hearing it did not prevent the applicant from proceeding on that date or to seek an adjournment on that basis. The further delay of one month to the new hearing date, adjourned on consent was due to technical difficulties delaying its start and lack of sufficient time to complete the evidence of the complainant.
[43] In this instance, the COVID-19 pandemic declaration in March 2020 to early October 2020 when the scheduling matters not previously scheduled resumed in the OCJ constitutes a discrete event that caused an unexpected delay in its progress. While the discrete event period might be considered to entail the entire period from the suspension of proceedings until the hearing date, as allocated in a number of cases, in this instance, in my view it is up to the setting of the preliminary hearing date, which would have occurred proximate to the suspension of proceedings. As such, the period of 6.5 months shall be deducted from the overall time.
[44] In addition to the 6.5 months of delay due to the exceptional circumstances of the COVID-19 suspension of proceedings, I consider the one-month delay from January 22, 2021, the first preliminary inquiry date, to February 22, 2021, when the matter was heard, to be another unexpected exceptional circumstance.
[45] Accordingly, the net delay of 36 months shall be reduced by 7.5 months exceptional delay with a remaining delay of 28.5 months, a period of delay below the presumptive ceiling for matters proceeding in the Superior Court.
[46] Where the delay falls below the presumptive ceiling the onus shifts to the applicant to establish the case is a clear case of unreasonable delay. The applicant must establish that the defence took meaningful steps demonstrating a sustained effort to expedite proceedings, and that the case too markedly longer than it reasonably should have.
[47] Where the presumptive ceiling has not been exceeded, a stay will be rare and granted “only in the clearest of cases.
[48] In this case the overall record indicates that both parties took steps to ensure the matter progressed as expeditiously as it could considering the intervening discrete events or has taken longer markedly longer than it should have.
[49] In the result the s. 11(b) application is dismissed.
A.J. O’Marra J.
Released: June 2, 2022
COURT FILE NO.: CR-21-10000157
DATE: 20220602
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
OLEKSANDER MARTIUK
Applicant
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: June 2, 2022
[^1]: See also R. v. Coulter, 2016 ONCA 704 at paras. 34-41.