COURT FILE NO.: CR-20-70000120-0000
DATE: 20220422
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
YARED MENGISTU
Applicant
A. Linds, for the Crown
M. Bavaro, for the Accused
HEARD: February 4, and April 7, 2022
Chalmers, J.
ENDORSEMENT
OVERVIEW
[1] Yared Mengistu brings this Application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, for a stay of proceedings on the basis that his right to be tried within a reasonable time has been violated.
[2] For the reasons that follow, I find that the Remaining Delay exceeds the presumptive ceiling of 30 months (913 days) established by R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631. I therefore allow the application and grant the stay of proceedings.
BACKGROUND FACTS
The Allegations
[3] On August 19, 2018, the Applicant was initially charged with uttering a death threat, dangerous operation of a motor vehicle, three counts of assault with a weapon, and mischief. He is alleged to have rammed his motor vehicle into his then-sister-in-law’s vehicle. The Applicant is also alleged to have reversed his vehicle and again rammed her vehicle several more times. He is then alleged to have taken a metal bar and used it to smash her vehicle, while continuing to utter threats.
The Chronology
[4] The Applicant was arrested on August 19, 2018. He was released on his own recognizance on August 20, 2018. On September 12, 2018, he was arrested for breach of recognizance. It is alleged that he contacted one of the complainants. On September 20, 2018, a new information was sworn. The charges now included attempted murder. The bail hearing was scheduled for October 23, 2018, before Justice Bovard. On October 29, 2018, Justice Bovard detained the Applicant.
[5] On January 23, 2019, a judicial pre-trial was scheduled for February 7, 2019, with Justice Horkins, in the Ontario Court of Justice. The parties estimated and received approval to set a five-day preliminary hearing. The Court’s first available dates were July 29-August 2, 2019. The Crown was available on those dates, but the defence was not. The next dates offered by the court were August 27-September 3, 2019. The Crown was not available on August 27-28, 2019. The mutually agreed upon dates for the preliminary hearing were August 29 to September 6, 2019.
[6] On March 1, 2019, the Applicant formally elected to be tried by a judge and jury in the Superior Court. A bail review was argued on March 8, 2019. The Applicant was released on a recognizance with two named sureties.
[7] On July 15, 2019, a trial readiness appearance was conducted before Justice Horkins. Two fully accredited Amharic interpreters were ordered for the preliminary hearing. The matter was put over to the first day of the preliminary hearing.
[8] The preliminary hearing commenced on August 29, 2019, before Justice Green. Only one interpreter was present. On September 5th, one of the witnesses, Abeba Teklemarian (the Applicant’s spouse) completed her examination in chief but there was insufficient time for her cross-examination. She stated that it was not convenient for her to return the next day because of school and work commitments. It was necessary to schedule an additional day for her cross-examination. The continuation of the preliminary hearing was scheduled for November 15, 2019. Justice Green imposed deadlines for filing written submissions in advance of the continuation of the hearing.
[9] The evidence for the preliminary hearing was completed on November 15, 2019. The hearing was adjourned to January 10, 2020, to receive the decision on committal. The Applicant was committed for trial on 13 charges including one charge of attempted murder and multiple charges for dangerous operation of a vehicle causing bodily harm.
[10] The judicial pre-trial in the Superior Court was scheduled with Justice Spies for March 10, 2020. A ten-day trial was scheduled on the same date. The Trial Verification Form sets out the Jordan date of February 18, 2021. The first available date for the Crown was June 1, 2020, and the first available date for the Defence was November 16, 2020. The form provides that the court’s first available date was February 8, 2021, however the defence was not available on that date. The next available date provided by the court and agreed to by the parties was May 10, 2021.
[11] The parties attended in Criminal Practice Court before Akhtar J. on March 10, 2020, after the judicial pre-trial. The trial was scheduled for May 10, 2021, with a judge and jury, for two weeks. There was an exchange on the record with respect to the trial date. Counsel for the Applicant put on the record that the defence counsel’s first available date for trial was November 16, 2020, but the court was not available until February 8, 2021. Counsel also stated that the next available date offered by defence counsel was April 26, 2021. Akhtar J. noted that February 8, 2021 was the cut-off date to allow the case to be tried within the Jordan ceiling, and the Crown and court are available for trial.
[12] The parties also put on the record, the date for a half-day voir dire to determine the competency of the proposed Amharic interpreters. The voir dire was scheduled for November 6, 2020. The matter was remanded to the date of the voir dire. The voir dire was completed on February 26, 2021 and Justice Boucher provided her ruling on March 3, 2021.
[13] On March 17, 2020, Chief Justice Morawetz announced the suspension of trials in the Superior Court. Jury trials were suspended on April 20, 2020. On March 18, 2021, the Chief Justice issued an amended Practice Direction advising that new jury trials in Toronto would not re-commence until at least July 5, 2021. On March 24, 2021, the Crown requested defence counsel’s availability to reschedule the trial that had been scheduled for May 10, 2021. On March 30, 2021, counsel provided a list of available dates to the Crown.
[14] On April 1, 2021, the parties completed a Trial Verification Form which indicated that the Crown’s first available date was July 5, 2021, and the first available date for the defence was August 30, 2021. The court’s first available date for the trial was September 19, 2022. Counsel were available for that date. On April 6, 2021, the new trial date was placed on the record.
[15] On April 13, 2021, a judicial pre-trial was conducted with Justice Goldstein. Counsel for the Applicant advised of their intention to bring an application for delay. A second pre-trial with Justice Goldstein was conducted on July 21, 2021. He advised that trial dates in August 2021 had become available. On July 22, 2021, the Crown advised that they could conduct the trial commencing August 23, 2021. On July 23, 2021, counsel for the Applicant advised that the Application for delay had to be prepared and their office was not in a position to accept the trial dates.
[16] On November 23, 2021, the Crown e-mailed Counsel for the Applicant and advised that trial dates had become available from February 7 to 25, 2022. Counsel for the Applicant was unable to accept this trial date. The trial continues to be scheduled for September 19, 2022.
THE ISSUES
[17] There are three areas of dispute:
(a) Is any of the delay attributable to the defence, and if so, what is the delay?
(b) Was the delay in completing the preliminary inquiry a discrete and unexpected event, and if so, what is the delay attributable to that event? and
(c) Is the COVID-19 pandemic a discrete and unexpected event, and if so, what delay is attributable to that event?
ANALYSIS
Framework
[18] The right to be tried within a reasonable time is central to the administration of the criminal justice system: R. v. Jordan, paras. 1, 20. The Supreme Court in Jordan established a “presumptive ceiling” for matters tried in the Superior Court at 30 months from the date the accused is charged to the actual or anticipated end of the trial. Where a case exceeds this ceiling, the delay will be presumptively unreasonable and a stay will issue, unless the Crown can show exceptional circumstances existed that justified the delay: R. v. Jordan, at paras. 46-47, 49 and 68.
[19] If the delay falls under the presumptive ceiling, the onus is on the defence to demonstrate that the delay was nonetheless unreasonable. The defence must show that it took meaningful steps to expedite the matter, and that the matter took “markedly longer that it should have” to proceed to trial: R. v. Jordan, at paras. 82-83.
[20] The following steps are to be taken to determine whether a stay ought to be granted:
(1) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;
(2) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
(3) Compare the Net Delay to the presumptive ceiling;
(4) If the Net Delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(5) Subtract the delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
(6) 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;
(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable: R v Coulter, 2016 ONCA 704 at paras 34-40.
Total Delay
[21] The first step in the analysis is to determine the total delay. The Applicant was charged on August 19, 2018. The presumptive ceiling date is February 19, 2021. The trial is currently scheduled to begin on September 19, 2022, for two weeks. The total delay from the date the charges were laid to the anticipated end of the trial is 49 months and 11 days (a total of 1,503 days). The total delay exceeds the presumptive ceiling of 30 months (913 days).
Is any of the delay attributable to the defence, and if so, what is the amount of delay?
[22] The defence is not entitled to benefit from delay caused by its own conduct. Any delay attributable to the defence’s conduct or inaction is to be subtracted from the total time period: R. v. Jordan, at paras. 21, 49 and 60. In scheduling court appearances, defence delay occurs when the court and Crown are ready to proceed, but the defence is not. Periods of time during which the court and Crown are unavailable will not constitute defence delay, even if the defence is also unavailable: Jordan, at para. 64.
[23] Although defence counsel is not required to hold themselves in a state of “perpetual availability”, section 11(b) “requires reasonable availability, flexibility and some level of cooperation” in setting trial dates: R. v. Ameerullah 2019 ONSC 4537, [2019] O.J. No. 3975, at para. 28. The clear message from Jordan is that all participants in the system, including defence counsel, are required to take proactive measures at all stages of the process to move the cases to trial in a timely fashion: R. v. Thanabalasingham, 2020 SCC 18, [2018] S.C.J. No. 18, at para. 9. As noted in R. v. Albinowski, 2018 ONCA 1084, “Jordan imposes an obligation on all actors in the criminal justice system, including defence counsel to alleviate the delays that have plagued the criminal justice system”: at para. 50.
[24] To determine the amount of delay attributable to the defence, it is necessary to consider the particular circumstances of the case, keeping in mind the change of direction set out in Jordan: R. v. Ameerallah, at para. 28. In some cases, offering a single date when defence counsel is not available will constitute the beginning of defence delay, and in other cases it may not: R. v. Simmons, 2020 ONSC 7209, at para. 29.
[25] With these principles in mind, I now consider the delay attributable to the defence in scheduling the preliminary hearing and trial.
Scheduling of the Preliminary Hearing
[26] The preliminary hearing was scheduled for August 29 to September 6, 2019. The Trial Confirmation Form indicates that earlier dates of July 29 to August 2, 2019 were offered but the defence was not available. The dates of August 27 to 30, 2019 were also offered but the Crown was unavailable. The Crown argues that the delay from the first date offered for the preliminary hearing to August 27, 2019; a period of 29 days, is attributable to defence delay. The Defence concedes a defence delay of one week to take into account the fact the defence was not available on the first offered date of July 29, 2019.
[27] The Defence argues that if the court had other dates after July 29, 2019, those dates would have been offered, and therefore, it cannot be said that the court and Crown were available to conduct the preliminary hearing after the offered date of July 29 and before the date the Crown was unavailable on August 27, 2019.
[28] The offering of a single date for the preliminary hearing for which the defence was unavailable starts the defence delay. At the time the preliminary hearing was scheduled, there continued to be a significant amount of time to complete all necessary steps in the criminal proceeding before the presumptive ceiling. The fact the preliminary hearing was rescheduled for a date one month after the first offered date, indicates that the Defence counsel had reasonable availability and was acting proactively to reschedule the hearing to minimize delay. There is no evidence that the court had available dates for the preliminary hearing between July 29, 2019 and August 27, 2019. I am satisfied that in the circumstances of the case, there was a one-week period of defence delay arising out of the scheduling of the preliminary hearing.
Scheduling of the Trial
[29] In the Trial Verification Form dated March 10, 2020, the Crown’s first available date was June 1, 2020, and the Applicant’s first available date was November 16, 2020. The form provides that the Court’s first available date was February 8, 2021. The trial was scheduled for the mutually agreeable date of May 10, 2021.
[30] The Defence states that it was prepared to proceed to trial on November 16, 2020, but the Crown or the court were unavailable. The court offered February 8, 2021 for the trial. Defence counsel was not available for that date. There is no evidence before me as to the Crown’s availability to conduct a trial on February 8, 2021. The Defence concedes a defence delay of two weeks because it was unable to proceed to trial on February 8, 2021. The Crown argues that the defence delay is from February 8, 2021 to May 10, 2021. In the alternative, the Crown states that one-half of this period ought to be attributed to the Defence.
[31] To determine the amount of defence delay, it is necessary to consider the particular circumstances of the case. At Criminal Practice Court on March 10, 2020, defence counsel put on the record, that its first available date was November 16, 2020, and the court was not available. If the court and Crown were able to proceed on November 16, 2020, the trial would have been completed within the Jordan ceiling. There is no evidence that multiple dates were offered for the trial that were unacceptable to the Defence. Only the single date was offered by the court that would have allowed the trial to be completed within the Jordan ceiling. There is no evidence that the court or Crown were available to conduct the trial between the proposed date of February 8, 2021, and the first scheduled date of May 10, 2021.
[32] The Applicant argues that if the court had other dates prior to May 10, 2021, those dates would have been offered to the parties. The fact that no earlier dates were available constitutes systemic failure: R. v. Live Nation Canada Inc., 2017 ONCJ 590, at para. 79.
[33] The scheduling of criminal trials, “requires reasonable availability, flexibility and some level of cooperation”: R. v. Ameerullah, at para. 28. Defence counsel is expected to work with the Crown and court to alleviate delay and to have the matter tried within the Jordan ceiling. Based on the submissions of defence counsel at Practice Court on March 10, 2020, I conclude that defence counsel demonstrated reasonable flexibility in scheduling the trial. In the Trial Verification Form and at the Practice Court on March 10, 2020, the Defence indicated that it was available to conduct the trial on November 16, 2020. This was within the Jordan ceiling.
[34] The Supreme Court of Canada recently considered this issue in R. v. Boulanger, 2022 SCC 2. The defence was offered dates in May 2019 but was unavailable. The next trial date was scheduled for September 2019. The court held that the entire delay between May and September could not be attributed entirely to the Defence. The court stated that the delay was caused by a number of factors, including the conduct of the defence, changes in the Crown’s strategy and institutional delay. The court found that it was “fair and reasonable” to attribute one-half of the delay to the defence.
[35] The Ontario Court of Appeal also recently considered this issue in R. v. Hanan, 2022 ONCA 229. In that case, the trial was scheduled for 6 weeks. The Crown and court were available to conduct the trial for six weeks beginning on June 3, 2019, but the defence was not. The trial was scheduled for October 28, 2019. The Crown argued that the entire period from June 3, 2019 to October 28, 2019 was attributable to defence delay. The trial judge found that the court was unable to accommodate a trial between June 3, 2019 and October 28, 2019 and therefore the entire period was not solely attributable to the defence. The court only attributed a six-week period of defence delay because the defence was unavailable to conduct the trial on June 3, 2019.
[36] The Court of Appeal found that the trial judge did not err in applying only 6 weeks to defence delay. The court concluded as follows:
[….] In these circumstances, the defence was only the “direct or sole” cause of the six-week delay starting June 3, 2019 because during this period the Crown and the court were ready to proceed and the defence was not. However, after that six-week period, there was no availability in the court schedule until October 28. The trial judge took the correct approach in concluding that this was not defence delay because the court was unable to accommodate the trial sooner: at para. 58.
The trial judge, in determining what portion, if any, of the delay between June and October 2019 should be attributed to the defence, applied an appropriate contextual approach that is faithful to Jordan. The trial judge’s refusal to attribute more than six weeks to the defence was, in the circumstances of this case, a fair allocation and entirely appropriate considering that it was the trial adjournment that resulted in the need for new dates, and the court had no other dates available between June and October 28, 2019. In the circumstances, it would not have been “fair and reasonable” to characterize as defence delay the remaining months when the court could not accommodate a trial. This was not delay that was “solely or directly” caused by the defence: at para. 59.
[37] On the evidence before me, I am unable to conclude that all of the delay from February 8, 2021 to May 10, 2021 is related to defence delay. The defence was not offered multiple dates for which it was unavailable. The defence was available to conduct the trial on November 16, 2020, which would have resulted in the case being tried within the Jordan ceiling, but the Crown and/or the court was not available to conduct the trial on that date. I am not satisfied that there was a lack of availability on the part of defence counsel which resulted in the trial being set further in the future than would otherwise have been necessary: R. v. Ameerullah, at para. 29.
[38] I conclude, that in the particular circumstances of this case, the defence delay with respect to the scheduling of the trial date is a two-week period. The Applicant demonstrated sufficient availability and flexibility to have the matter tried within the Jordan ceiling. Although the Defence was not available on the single trial date offered by the court, this does not support a finding that the Defence was not being proactive in scheduling the trial or was not working co-operatively to have the matter completed within the Jordan ceiling.
[39] Attempts were made to reschedule the trial during the pandemic. The Trial Verification Form dated April 1, 2021, provides that the first date available for the Crown was July 5, 2021 and the first date for the Defence was August 30, 2021. The court’s first date was September 19, 2022. The trial was scheduled for the court’s first available date. I do not find any defence delay with respect to rescheduling the trial.
Summary – Defence Delay
[40] The Defence concedes a delay of 7 days for the scheduling of the preliminary hearing. I agree this is an appropriate figure to be attributed to the Defence for the delay in scheduling the preliminary hearing. I also conclude that the defence delay with respect to the scheduling of the trial is 14 days. The total defence delay is 21 days. This figure is deducted from the Total Delay of 1,503 days, resulting in a Net Delay of 1,482 days. This exceeds the presumptive ceiling of 30 months, or 913 days. When a case exceeds the presumptive ceiling, the onus shifts to the Crown to show exceptional circumstances exist that justified the delay: Jordan, at para. 68.
Onus of the Crown to Show the Delays were Attributable to an Exceptional Event
[41] Exceptional circumstances must lie outside the Crown’s control in that they are reasonably unforeseen or unavoidable and the Crown cannot reasonably remedy or minimize the delay from those circumstances once they arise: R. v. Majeed, 2017 ONSC 3554, at para. 14. The Crown argues that the preliminary hearing and the COVID-19 pandemic are two separate discrete and unexpected events that caused the delay.
Was the delay in completing the preliminary inquiry a discrete and unexpected event, and if so, what delay is attributable to that event?
[42] Trials and preliminary hearings are not “well-oiled machines”: R. v. Jordan, at para. 79. If the preliminary hearing takes longer than reasonably expected, even where the parties have acted in good faith, it may constitute an exceptional event: R. v. Robinson, 2021 ONSC 2445, at paras. 76-9.
[43] Here, the Applicant elected to have a preliminary hearing. The hearing was scheduled for August 29, 2019 to September 6, 2019. The hearing was not completed until November 15, 2019. Justice Green released his reasons for committal on January 10, 2020. The Crown argues that there were four unexpected discrete events that delayed the completion of the preliminary inquiry to November 15, 2019. This is a period of 71 days.
[44] Amharic interpreters were required for the preliminary hearing. Arrangements were made for two Amharic interpreters for each day of the hearing. On the first day, one of the interpreters failed to attend and then cancelled the assignment without explanation. The hearing proceeded with the assistance of only one interpreter. The Crown argues that this resulted in frequent breaks and delay. Although the second interpreter did not attend, there was little, or any delay associated with this issue. The evidence was completed each day with only one interpreter. Even if there had been delay attributed to the interpreters, this was not a discrete or unforeseen event. The Crown was aware in advance that interpreters were needed for the accused and the civilian witnesses. The courts are responsible for providing appropriate interpreters. The Applicant argues any delay attributable to the interpreters is an institutional issue that falls at the feet of the Crown. I agree.
[45] The Crown argues there was unexpected delay in completing the preliminary hearing because one of the witnesses made, for the first time, an allegation of sexual assault. During the examination in chief, the Crown asked about a sexual assault which was alleged to have been committed by the Applicant in February 2018. The Crown’s statement that the allegation had not been previously disclosed is not factually accurate. In fact, the witness had disclosed the sexual assault to the Crown in advance of the preliminary inquiry. Reference to the earlier report of a sexual assault is found in the preliminary hearing transcript (p.29-34). Counsel for the Applicant argues that this was not an unforeseen or unexpected event. I agree.
[46] The final Crown witness was Abeba Teklemarian. She was the Applicant’s spouse. The Crown argues that she refused to meet with the police or Crown before the hearing and had become an adverse or hostile witness. The Applicant argues that this statement is factually incorrect. During her examination, Ms. Teklemarian was asked by the Crown whether they had had occasion to meet last week. She confirmed they had (p.91, l. 10). In any event, the transcript of the preliminary hearing suggests that she was not adverse or hostile. Even if there was a serious issue of her being adverse, the Crown could have had her statement to the police entered at the preliminary hearing. I am not satisfied that her evidence was an unexpected or unanticipated event that delayed the completion of the preliminary hearing.
[47] Ms. Teklemarian’s evidence in chief was completed on the fourth day of the hearing, but she was unable to attend the next day for her cross examination. At p. 148 (l.22), Ms. Teklemarian stated that she would have liked to have started earlier in the morning. The Judge noted that if he had known earlier, he could have tried to adjust his schedule. Counsel for the Applicant argues that the witness’ availability ought to have been canvassed well in advance, at least when the Crown and police met with her the week before the hearing. If the Crown was advised of her limited availability and wished to start earlier in the day, the Crown could have mitigated the delay by raising this issue with the Judge. I am not satisfied that Ms. Teklemarian’s unavailability to complete her evidence was an unforeseen event.
[48] I conclude that the Crown failed to satisfy its onus to establish that any delays with respect to the preliminary hearing were caused by exceptional circumstances. I find that the issues that arose during the preliminary hearing were not reasonably unforeseen or unavoidable or could not be reasonably mitigated by the Crown.
Is the COVID-19 pandemic a discrete and unexpected event, and if so, what delay is attributable to that event?
i) Period from May 10, 2021 to September 30, 2022
[49] On March 10, 2020, the parties secured a trial date of May 10, 2021. Shortly after the trial date was arranged, court proceedings in Ontario were suspended because of the COVID-19 pandemic. Jury trials were suspended on April 20, 2020. The suspension of jury trials was extended on March 16, 2021. As a result, the trial could not go ahead on May 10, 2021. The trial was adjourned to September 19, 2022. The trial is scheduled for two weeks and is expected to conclude on September 30, 2022.
[50] It is clear that COVID-19 is an exceptional discrete event: R. v. Drummond, 2020 ONSC 5495, at para. 76. This is conceded by the Applicant. The parties also agree that the period from the initial trial date of May 10, 2021, to the new trial date of September 19, 2022, is attributable to the exceptional event and should be deducted from the period of delay. This is 16 months and 9 days, or 498 days.
[51] As noted earlier, I conclude that the defence delay is 21 days. This results in a Net Delay of 1,482 days. When an additional 498 days is deducted for the period between May 10, 2021 and September 19, 2022 the Remaining Delay is 984 days. The Remaining Delay exceeds the presumptive ceiling of 30 months (913 days). I note that even if I was prepared to deduct one-half of the delay between February 8, 2021 and May 10, 2021 (45 days), the Remaining Delay would exceed the presumptive ceiling.
ii) Period from April 20, 2020 to May 10, 2021
[52] The Crown argues that the period of time from the suspension of jury trials on April 20, 2020 to the first trial date of May 10, 2021 (a period of 389 days) is also attributable to the pandemic. Although the trial was scheduled before the onset of the pandemic, the Crown argues that the pandemic caused significant disruption to the criminal justice system which prevented the Crown from rescheduling the trial for a date within the Jordan ceiling.
[53] The Applicant argues that the pandemic did not affect the scheduling of the first trial date of May 10, 2021. That date was scheduled on March 10, 2020 before the COVID-19 shutdown. The Court was having systemic issues with delay before the pandemic, and therefore there should be no deduction for the delay between the suspension of jury trials on April 20, 2020 and the first trial date of May 10, 2021.
[54] The Applicant relies on R. v. Metatawabin, 2021 ONSC 7168. In that case, the trial dates of May 11-27, 2020 and June 22-26, 2020 were scheduled before the onset of the pandemic. Justice Goldstein found that the delay from the onset of the pandemic to the first trial date was not attributable to the pandemic. He stated that the trial was scheduled before the pandemic and the delay would have counted towards the presumptive Jordan ceiling if the pandemic had not struck: at para. 16. Justice Goldstein referred to the decisions of Byrne J. in R. v. Gutierrez, 2020 ONSC 6810, and Woollcombe J. in R. v. Khattra, 2020 ONSC 7894. In Gutierrez, the trial was scheduled before the onset of the pandemic, for July 4, 2020. In Khattra, the trial was scheduled before the pandemic, for May 11, 2020. In both cases the court did not deduct the time from the onset of the pandemic to the first trial date.
[55] The Crown relies on R. v. Simmons, 2020 ONSC 7209, at paras. 67-74. In that case, Justice Nakatsuru determined that the entire period from the start of the pandemic to the new trial date should be deducted as a single discrete event. In Simmons the trial was scheduled before the pandemic for March 16, 2020. This is the same date as the shutdown of the courts because of the pandemic. It is my view that the fact there was no period from the pandemic to the first scheduled trial date is a distinguishing factor. The Simmons case is consistent with the cases relied on by the Applicant to support the position that the time between the trial dates ought to be deducted as being caused the exceptional event of the pandemic.
[56] The Crown argues that the pandemic had a “knock-on” effect on cases that had to be re-scheduled or set for trial after other priority cases: R. v. Robinson, 2021 ONSC 2445, at paras. 102-3. As a result of the pandemic, the Applicant’s trial could not be re-scheduled for a date within the Jordan ceiling. The Crown argues that the pandemic prevented the Crown from mitigating the delay.
[57] In R. v. Zappone, 2021 ONCJ 332, the trial was scheduled before the pandemic, for December 7, 2020. This was 19 months after the accused was charged. The trial was adjourned because of the pandemic and rescheduled for June 23-25, 2021. The defence brought a s.11(b) Charter application on the basis that the first trial date was beyond the presumptive ceiling for cases in the Ontario Court of Justice. The court found that the pandemic was a discrete exceptional circumstance. The court stated that although the pandemic did not have a “direct” impact on the scheduling of the trial, it had an “indirect” effect in that it prevented the rescheduling of the case for a date within the presumptive ceiling: at para. 20. The Crown filed an affidavit of a senior Crown counsel which asserts that “but for” the pandemic, rescheduling would have been successful and new dates within the Jordan ceiling would have been obtained. This assertion was not challenged or contradicted: at para. 9.
[58] I distinguish Zappone on the facts. In Zappone the Crown filed an affidavit which set out the steps it would take to secure earlier trial dates. Here, the Crown did not file any evidence. In oral argument, counsel stated that the Crown would normally utilize the summer calendar and would have asked the Trial Co-ordinator for earlier dates. However, there is no evidence that specifically sets out the steps that could be taken, and the success that could have been expected. Although I acknowledge that the pandemic caused an unprecedented disruption to the criminal justice system, I am left guessing as to what could have been done to obtain an earlier trial date.
[59] The Crown has the onus to establish that “but for” the pandemic the case would have been rescheduled for a date within the Jordan ceiling. The Crown must put forward evidence to prove the causal link: R. v. Greenidge 2021 ONCJ 57, [2021] O.J. No. 468, at para. 26. In Greenidge, the trial was scheduled before the pandemic. The trial date was beyond the presumptive ceiling. The Crown argued that “but for” the pandemic, it would have made arrangements to reschedule the trial for a date within the presumptive ceiling. The evidence necessary to establish causation was addressed by Justice Monahan:
[31] In my view, the evidence the Crown has put forward in 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 [Trial Coordinator] to offer to the defence (which may have given rise to defence delay if they were not accepted).
[32] Neither the affidavit of Mr. Hendy nor the factum of the Crown asserts that the Crown would have been successful in moving the trial date up. The affidavit simply says that “had I or my office been made aware that there would be an 11(b) application prior to the shutdown of the courts, steps could have been taken to see if an earlier trial date could be found (my emphasis) (see paragraphs 3 and 4 of the Hendry affidavit).
[36] The evidence is this case does not provide a proper factual foundation for me to conclude that the pandemic caused the delay above the 18 months. The most I can say here, in the absence of further evidence on this point, is that but for the pandemic the Crown likely would have tried at some point and might have been successful in moving the trial date up or securing earlier dates to offer to the defence. I cannot say, on this record, that they would more likely than not have been successful in this regard.
[60] The Crown also relies on R. v. Khan, [2021] ONCJ 195. The trial was scheduled before the pandemic for July 19-20, 2021. The trial dates were beyond the Jordan ceiling. The judicial pre-trial took place just before the onset of the pandemic. At the pre-trial, the Crown “immediately” raised concern about the trial dates and said it would reach out to the defence to try to find earlier dates. The Crown stated that it was prepared to “stack” this case on an already full list and give it priority. The matter was adjourned to March 20, 2020, to see if earlier dates could be found. The pandemic intervened before the Crown could find earlier dates. The Court stated that, with the evidence that the Crown was prepared to give this matter priority, it was “almost inevitable” that earlier dates within the Jordan ceiling would have been secured. The Court concluded that the only thing that prevented the rescheduling of the trial was the pandemic: at para. 12.
[61] I also distinguish Khan on the facts. Here, the Crown set the trial date on March 10, 2020. The scheduled trial date was May 10, 2021, which was beyond the presumptive ceiling. The Crown did not immediately raise concerns or advise the defence at the pre-trial that it would take steps to secure earlier dates. At Practice Court on March 10, 2020, the matter was remanded to the voir dire regarding the interpreters. The Crown did not request a date to return to Practice Court to see if earlier trial dates may become available. After jury trials were available starting in September 2020, the Crown did not take any steps to obtain an earlier trial date. Although the Crown argues that the pandemic prevented it from rescheduling the matter to a date within the presumptive ceiling, it did not take any steps to do so before the shutdown.
[62] The Crown argues that the pandemic caused disruption throughout the criminal justice system that not only affected the scheduling of trials, but also affected the rescheduling of trials for matters in “Jordan distress”. While there is no doubt that the pandemic caused significant disruption, there is no evidence, upon which I can rely, to support the Crown’s position that “but for” the pandemic an earlier trial date could have been obtained. The Crown’s position that it would have secured an earlier date is speculative and is not supported by evidence. To paraphrase Justice Monahan, I am unable to conclude on this record, that the Crown would have been more likely than not to reschedule the trial.
Conclusion – Effect of the Pandemic
[63] The Applicant concedes that the period from the initial trial date of May 10, 2021, to the new trial date of September 19, 2022, is attributable to the exceptional event of the pandemic and should be deducted from the period of delay. This is 16 months and 9 days, or 498 days. I conclude that the period from the suspension of jury trials on April 20, 2020, to the initial trial date of May 10, 2021 is not to be deducted from the delay. The trial was scheduled for May 10, 2021, before the onset of the pandemic. I conclude that the pandemic did not have a direct impact on the scheduling of the trial.
[64] The Crown argues that the pandemic had an “indirect” effect on the delay because it prevented the rescheduling of the trial to a date within the presumptive ceiling. There is no evidence before me that sets out the steps the Crown would take to secure an earlier date. I find that the Crown failed to satisfy its onus to establish that “but for” the pandemic, the trial could have been rescheduled for a date within the presumptive ceiling.
Case Complexity
[65] I conclude that the Remaining Delay is 984 days. This exceeds the Jordan ceiling of 913 days. The Crown argues that the case was complex such that the time it has taken to proceed to trial is justified and the delay is reasonable. The Crown relies on the fact that Amharic interpretation is required. Several interpreters have been disqualified due to conflict of interest.
[66] I acknowledge that there have been challenges related to the interpreter issue. However, I can find no causal connection between the need for interpreters and the delay. There is no evidence before me as to the steps taken by the Crown to obtain interpreters for the trial or how those steps resulted in delay.
[67] It is my view that although the charges are serious, the case is not particularly complex.
DISPOSITION
[68] The Total Delay is 1,503 days. I conclude that the defence delay attributed to the scheduling of the preliminary hearing and the trial is 21 days. The Net Delay is 1,482 days. The Net Delay exceeds the presumptive ceiling and therefore the onus shifts to the Crown to show that exceptional circumstances exist. The Crown argues that the preliminary hearing and the pandemic were exceptional events which resulted in delay.
[69] I am satisfied that the pandemic is an exceptional event and that the delay from the first trial date of May 10, 2021 to the new trial date on September 19, 2022 is related to the exceptional event. I calculate this period to be 16 months and 9 days, or 498 days. When this amount is deducted from the Net Delay, the Remaining Delay is 984 days.
[70] I am not satisfied that the delay in completing the preliminary hearing was due to unforeseen or unavoidable events. I also find that the Crown failed to satisfy its onus to prove that the delay from the suspension of jury trials on April 20, 2020 to the first scheduled trial date of May 10, 2021 was caused by the pandemic.
[71] I find that the Remaining Delay exceeds the Jordan limit of 30 months. I allow the Application and order a stay of the proceedings.
DATE: April 22, 2022