Court File and Parties

COURT FILE NO.: CR-21-30000522

DATE: 20220610

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R v. Titus, Defendant/Applicant

BEFORE: S.F. Dunphy J.

COUNSEL: Anna Gilmer, for the Crown/Respondent David Goodman, for the Defendant/Applicant

HEARD at Toronto: June 2, 2022

REASONS FOR DECISION – 11(b) Application

[1] Mr. Titus was arrested on October 10, 2019 and his three-week jury trial is projected to be completed by January 27, 2023 or just over 39.5 months following his arrest. He seeks an order pursuant to s. 24(1) of the Charter of Rights and Freedoms staying the charges against him by reason of the failure of the Crown to secure for him his right to a trial within a reasonable time pursuant to s. 11(b) of the Charter.

[2] There is no doubt that the January 2023 trial date assigned to this case will result in the delay from the laying of charges to the projected end of the trial being considerably longer than the presumptive 30-month ceiling for bringing non-complex matters to the end of trial established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631. This case will miss that presumptive ceiling by almost ten months. The issue in this case is the degree of delay properly attributable to the exceptional circumstance of the Covid-19 pandemic emergency.

[3] As in the case of R. v. Cann, [2022] O.J. No. 2129, 2022 ONSC 2699, I find that the disagreements between the parties regarding the characterization of various periods as defense delay is ultimately not material to the resolution of this application. Rather, a proper appreciation and quantification of the exceptional circumstance attributable to the pandemic emergency brings the net delay in this case well under the 30-month presumptive threshold.

[4] I dismissed this application from the bench after the hearing with reasons to follow. These are those reasons.

Background facts

[5] The parties agree on the chronology of events with minor disputes regarding the allocation of blame for this or that delay along the way. In my view, the resolution of those disputes about comparatively small periods of alleged defence delay is not required to resolve this application.

[6] I set forth the basic chronology of this case below in sufficient detail to understand the impact of the pandemic emergency on the timing of this case:

a. October 10, 2019: date of arrest of the accused.

b. January 16, 2020: date of initial Ontario Court of Justice judicial pre-trial.

c. March 15, 2020: initial OCJ shut down due to Covid-19 emergency.

d. May 4, 2020: announcement that no Preliminary Inquiry dates will be booked by the OCJ until further notice.

e. July 6, 2020: announcement of phased re-opening of courts beginning with in-custody matters.

f. October 21, 2020: trial coordinator at OCJ advises not yet able to book hearing dates for out-of-custody matters.

g. November 6, 2020: trial coordinator seeks appointment dates from counsel for meeting to book out of custody Preliminary Inquiry date. December 7 date proposed but not all counsel available. December 17 meeting date booked as first available meeting date for both counsel.

h. December 17, 2020: meeting with trial coordinator held and June 18, 2021 OCJ Preliminary Inquiry date booked for 1.5 days.

i. June 18, 2021: examinations take longer than parties anticipated, Preliminary Inquiry not completed – adjourned to 12 July 2021.

j. July 12, 2021: Preliminary Inquiry evidence still not completed – adjourned until August 11, 2021 to complete evidence and receive submissions.

k. August 11, 2021: Evidence and submissions completed at Preliminary Inquiry.

l. September 2, 2021: Committal to stand trial ordered.

m. October 18, 2021: first SCJ judicial pre-trial.

n. October 29, 2021: Jury trial confirmed for January 9-27, 2023. Defence counsel had some availability in July and August 2022 on dates where the court had none. Defence was not available for the earliest available date offered (October 17, 2022) by trial coordinator. January 2023 trial date was the first offered date available to defence and Crown both.

[7] It should be stated that I do not point any fingers of “fault” at the defence regarding the conduct of the case. While the parties may agree to disagree on relatively minor periods of alleged defence delay, there is nothing before me to suggest that the defence have acted unreasonably or otherwise adopted dilatory tactics. There have been instances where defence counsel was unavailable and Crown and court were available. Were the calculation of net delay a close-run thing in this case, I should have been required to delve into those disagreements in further detail. However, I have found that the exceptional circumstance of the pandemic has caused a delay in the progress of this case through the system that is greater than the 9.5-month period by which the anticipated end of this trial exceeds the presumptive Jordan ceiling of 2.5 years. This renders a finer analysis of potential defence delay moot.

[8] What I wrote in Cann (at para. 3) a month ago appears to me to be equally applicable to this case:

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.

[9] The Covid emergency began with the order of the Chief Justice of Ontario closing down Ontario’s courts for all but certain emergency matters on March 15, 2020. When that event occurred, the parties were days away from a second judicial pre-trial after which they hoped to be in a position to arrange a preliminary hearing date with the trial coordinator’s office. In ordinary times, there is no reason to believe that they should not have been able to do just that. When the window opened again to permit preliminary inquiries to be booked, out-of-custody cases such as the present one were dealt with last and for self-evident reasons. At the Ontario Court of Justice, the trial coordinator was unable to propose a date for meeting with counsel and to fix the date until December 7, 2020. By reason of counsel scheduling issues, that meeting occurred on December 17, 2020 instead. Whether I characterize the entire 9 month and 2 day delay as a Covid-19 exceptional circumstance or attribute 10 days of that delay to defence delay by reason of a scheduling conflict with the December 7 date proposed is a distinction without a difference. The entire period of delay is a direct consequence of the shut-down of the courts due to the Covid-19 emergency. I am disinclined to engage in finger-pointing about whose calendar accommodated whose dates more readily. Court administrative staff and counsel were all dealing with the same problem: the time necessary to get the system back up on its feet and running smoothly after so many months of near total stasis. The trial coordinator’s appointment calendar, counsel’s calendar and available hearing dates relative to demand for them were all severely backed up and only beginning to recover from so many matters having been deferred for so long.

[10] The preliminary hearing was booked for June 16 and 18, 2021. Unfortunately, the parties appear to have underestimated the time required. I do not have sufficient evidence before me to determine how to apportion blame for that underestimation. As it turns out, two further days were needed to complete the evidence and receive submissions. Instead of a committal coming down in mid-July 2021, the order of committal was not able to be issued until September 2, 2021.

[11] It does not take much experience in booking hearing dates to understand that the longer the requested hearing time, the longer the likely delay in securing the appointment will generally be. Once again, the parties pointed fingers at each other for the failure to complete the preliminary inquiry in the originally allotted time. The problem was not in the failure to complete, it was in the failure to estimate accurately. However, it seems highly likely to me that a more accurate hearing time estimate would have resulted in a later hearing date at all events. In other words, even with a more realistic four-day hearing request, it is quite likely that the hearing date they would have received in that case would have been somewhat later than June 18, 2021 in any event. I can’t attribute delay to poor estimating skills on the part of one party or the other since a better estimate would not likely have resulted in a speedier completion of the preliminary inquiry at all events.

[12] Having regard to the period of court shutdown alone, this case was actually in relatively good shape from a Jordan point of view at the point committal was ordered and the matter was transferred to Superior Court. Even with all of the Covid-19 emergency delays, the matter was processed through the OCJ within twenty-three months from the date of arrest. This timing was somewhat beyond the “normal” delay for non-complex cases pre-pandemic, but not close to the almost ten-month delay to the end of trial currently projected.

[13] Pre-pandemic, there was generally enough flex in the Superior Court system to permit “Jordan trouble” cases to be flagged on Superior Court in-take and prioritized for early trial dates. However, conditions at the Superior Court in Toronto in October 2021 when this matter arrived were not close to pre-pandemic conditions and indeed we are still some distance away in June 2022 from achieving anything like a pre-pandemic state of equilibrium in scheduling matters in Toronto.

[14] The reasons for this are not for want of diligent efforts.

[15] Since the on-set of the pandemic in 2020, this court has been on an emergency footing to all intents and purposes. Judicial resources were re-directed towards criminal matters to the detriment of other responsibilities of the Superior Court. Systems for integrating Zoom hearings and Zoom trials were developed and rolled out in weeks instead of months or years that might have been required in pre-pandemic times. Systems for allowing digital and on-line filing of materials for court hearings were also developed and rolled out with unprecedented speed. Additional resources were allocated to judicial pre-trials and other early resolution measures including re-elections. Additional resources were also allocated to bail review hearings to facilitate efforts to reduce the number of in-custody cases awaiting a hearing and also to alleviate crowding in detention facilities that were themselves working on adjusting to the new realities. Many of these initiatives have become permanent and others may become so resulting in permanent enhancements to the overall efficiency of the system.

[16] The result of all of these extraordinary efforts has not been to prevent a backlog of cases from occurring or expanding. That would not have been physically possible in any realistic view of matters. However, these measures have mitigated the rate of growth of the backlog arising during the periods of full and partial shut-down without a doubt. The bottom line however is that there is a considerable backlog of cases waiting for a hearing. This is particularly so for those waiting for a hearing before a jury as jury trials have been the most difficult to re-open in the changing health landscape. Our courtrooms were not designed for socially-distanced juries and accommodating that necessity reduced the number of courtrooms physically available for use for as long as that imperative remained in place.

[17] The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.

[18] The simple fact of the matter is that the justice system cannot expand and contract at will and without limit to accommodate every contingency. There has never been an emergency in the history of the administration of justice in this country that has resulted in this degree of court closures lasting for anything close to this amount of time. Ever.

[19] The Charter requires the Crown to provide everyone with a trial within a reasonable time and Jordan was designed to ensure the validation of that right by wringing out of the system the culture of complacency that tolerated needless impediments to the realization of that guaranteed right. Obviously, the pandemic emergency is not a “get out of Jordan free” card to be played at will by the Crown for months or years to come. Even unprecedented emergencies must be responded to and must be responded to reasonably with diligence and efficiency. To this point in the unwinding phase of this emergency, there is no reason to suspect a systemic failure to respond reasonably or efficiently. I cannot of course exclude the prospect of unreasonable delay arising in the context of a particular case notwithstanding the backdrop of exceptional systemic delay that is being otherwise reasonably addressed. However, there is no question that in this case, the exceptional circumstance of the pandemic emergency accounts for more than the nearly ten months of delay beyond the 30-month Jordan threshold applicable in normal times.

[20] I find that there has been no unreasonable delay in the processing or scheduling for trial of this matter having regard to the exceptional circumstances of the pandemic delays and the application was accordingly dismissed.

S.F. Dunphy J.

Date: June 10, 2022