ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 21-30 DATE: 2022/06/30

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Christian Sandhu, Applicant

Counsel:

Alexandre Simard, for the Crown Danielle Robitaille and Tara Boghosian, for the Applicant

RULING ON APPLICATION TO STAY PROCEEDINGS PURSUANT TO SECTION 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS (sec. 11(b) Delay)

Laliberté. j.

[1] The Applicant Christian Sandhu is charged with making an explosive substance by means of bottles, gasoline and lighters, contrary to s. 82(1) of the Criminal Code. The offence is alleged to have occurred on December 16, 2019, at the Township of South Stormont. The Crown has chosen to proceed by Indictment and Defence elected to be tried by a Judge alone in the Ontario Superior Court of Justice. A two-day trial is scheduled to proceed on October 6 and 7, 2022. The Applicant has brought an Application under s. 24(1) of the Charter seeking a stay of proceedings based on a violation of his s. 11(b) right to be tried within a reasonable time.

[2] There is no dispute that the total delay from the laying of the Information on December 16, 2019, to the anticipated end of trial exceeds the 30 months presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631. The question to be decided by the Court is whether the net delay falls under the said threshold by reason of defence related delay and/or otherwise justified by the advent of the Covid-19 Pandemic as an exceptional circumstance.

[3] The Applicant’s position is that the net delay remains over the Jordan ceiling and is not mitigated by any exceptional circumstances. The unreasonable delay is said to having been caused in good part on the Crown’s failure to complete disclosure until nearly a year and a half after he was charged. It is argued that this is a simple and straightforward case that was entirely unaffected by Covid-19 delays. Counsel also points to what is described as institutional delay associated to Court administration, Crown unavailability and lack of judicial resources due to the state’s failure to properly resource the Cornwall Ontario Court of Justice and the Superior Court of Justice. Thus, a stay of proceedings is said to be the appropriate remedy.

[4] In response, the Crown submits that Defence contributed to the overall delay and that the Covid-19 Pandemic is a discrete event amounting to an exceptional circumstance. Furthermore, it is argued that reasonable steps were taken to mitigate the delay. Defence’s contribution to the delay is said to be linked to counsel’s inability to elect on December 17, 2020, the failure to follow the process for committal on December 24, 2020 and the unavailability of Counsel when earlier dates for pre-trial motions were offered in the Superior Court of Justice. With respect to Covid-19, the Court is asked to find that the 7-month period from March 2020 to October 2020 during which regular court operation was suspended is delay directly attributable to exceptional circumstances. The Court is also reminded of the impact of Covid-19 on trial coordination and the overwhelming backlog of cases. The end result is that the delay in this case is not unreasonable and a stay of proceedings is not warranted.

[5] The Applicant provided a fairly detailed and comprehensive record of the procedural history in this matter which led to the setting of the October 6 and 7, 2022 trial. This evidentiary record consists of transcripts of the various court appearances, endorsements and email communications between counsel and with trial coordination. As part of his Factum, the Applicant included a chart outlining dates from December 16, 2019 to October 6-7, 2022 with submissions throughout in support of his position in this Application.

[6] The Court confirms having reviewed and considered all of this material in its analysis. However, for the most part, reference to dates will be made in general terms as they relate to the specific issues raised by the parties. The issues can be properly articulated as follows:

i) Did the Applicant contribute to the delay?

ii) Is the delay related to the Crown’s failure to provide full disclosure in a timely manner?

iii) Is it due to the lack of judicial and institutional resources in the Cornwall jurisdiction?

iv) What role, if any, did the Covid-19 Pandemic play in the procedural history which led to the trial date? Is this an exceptional circumstance/discrete event contemplated in R. v. Jordan?

[7] In deciding this Application, the Court is guided by the analytical framework and principles set out by the Supreme Court of Canada in R. v. Jordan, op.cit, ably summarized as follows by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA, 704:

1. Calculate the total delay:

• The period from the swearing of the Information to the actual anticipated end of the trial.

2. Calculate the net delay by subtracting defence delay from the total delay:

• Defence delay has 2 components, defence waiver and defence-caused delay;
• Defence waiver can be explicit or implicit but must be clear and unequivocal; accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights;
• Defence-caused delay are situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial; frivolous applications and requests are the most straightforward example of defence delay; where the Court and the Crown are ready to proceed but the Defence is not, the Defence will have directly caused the delay.

3. Compare the net delay to the presumptive ceiling identified by the Supreme Court in Jordan beyond which delay is presumptively unreasonable:

• Provincial Court: 18 months;
• Superior Court: 30 months.

4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.

5. The Crown may rebut the presumption by establishing the presence of exceptional circumstances:

• These must lie outside of the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable and (2) Crown cannot reasonably remedy the delays emanating from the circumstances once they arise;
• An exceptional circumstance is the only basis upon which the Crown can discharge its burden;
• Generally, exceptional circumstances fall under 2 categories, namely discrete events and particularly complex cases;
• Discrete events include a medical family emergency on the part of the accused, important witnesses, counsel, trial judge; any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted.

6. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable and must do so by establishing, (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer that it reasonable should have.

7. If the remaining delay exceeds the presumptive ceiling, the delay is unreasonable, and a stay should be granted.

DISCUSSION

1. TOTAL DELAY

[8] As already noted, there is no dispute that the total delay in this matter runs from the swearing of the Information on December 16, 2019, to the anticipated end of the trial on October 7, 2022. This translates to a total delay of 33 months and 22 days calculated as 1,026 days converted to months by dividing same by 30.417 (see R. v. Shaikh, 2019 ONCA 895.

[9] The total delay is therefore 33 months, 22 days.

2. NET DELAY

[10] Dealing now with net delay, the Applicant concedes that there is a 21-day explicit defence waiver from August 9, 2021 to August 30, 2021. Such waiver was made in the context of the judicial pre-trial held before Superior Court Justice Lafrance-Cardinal. The transcript reveals that the August 9, 2021 judicial pre-trial was adjourned on consent for continuation on August 30, 2021. Delay was expressly waived by the Applicant’s counsel. Such waiver brings the total delay to a net delay of 33 months and 1 day.

[11] The question of whether the total delay is to be further reduced by reason of defence-caused delays is highly contentious. The Court will now consider the defence actions relied upon by Crown Counsel.

[12] The Court is asked to impute a total of 47 days for the period of December 24, 2020, to February 9, 2021, based on Defence being unable to elect the mode of trial and not having instructions in the context of the December 17, 2020, Ontario Court of Justice judicial pre-trial. This is said to be further compounded by Defence having failed to follow the process for committal and securing a Superior Court of Justice judicial pre-trial. It is noted that the matter was before the Ontario Court of Justice on December 24, 2020 but required to be adjourned by reason of Defence’s said failure to follow the process.

[13] The transition from the Ontario Court of Justice to the Superior Court of Justice has undeniably shown to be lengthy and at times, arduous. The Crown elected to proceed by Indictment at the first appearance on January 14, 2020. There was no entitlement to a preliminary inquiry. Following the resumption of the regular Court activities which were suspended from March 2020 to October 2020 by reason of the Covid-19 Pandemic, Judicial Pre-trials were held on December 10, 2020 and December 17, 2020 before Justice Lahaie. At the December 15, 2020 appearance, Defence Counsel stated the following:

“This matter was recently judicially pre-tried and will continue to be judicially pre-tried on the 17^th. Asking that the matter go over three weeks to allow for that to happen and likely to set trial dates in the interim.”

The matter was accordingly adjourned to January 5, 2021 to be spoken to.

[14] The second Judicial Pre-trial proceeded before Justice Lahaie on December 17, 2020. However, it appears not to have been a worthwhile exercise. This is based on the following comments made by Counsel at the March 2, 2021 court appearance:

Crown Counsel:

“… I understand that there was a judicial pre-trial. That was before. That was on December 17^th in front of Her Honour Justice Lahaie. However, defence it looked like did not have the instructions at that point, so it was adjourned. That’s my understanding. The defence was not ready from my understanding to conduct that judicial pre-trial in the Ontario Court of Justice. It appears now that counsel is indicating that they do have instructions…”

Defence Counsel:

“… just for the purpose of the record. It’s correct that Mr. Sandhu was not prepared to make an election at the time of the OCJ judicial pre-trial. We did make the election shortly thereafter. The election was made in writing in December. It was adjourned for the purpose of going to a Superior Court judicial pre-trial. Unfortunately, we lost the date that he had been provided in Superior Court and tried to bring the matter forward. But in any event, the matter was unable to be brought forward and this is where my concern comes from in terms of missing, the SCJ judicial pre-trial dates…”

[15] The record reveals that on December 22, 2022, the Applicant had filed a written election pursuant to s. 536.2 of the Criminal Code to be tried by a Judge alone in the Superior Court. The matter was brought forward by Defence on December 24, 2020, to confirm the said election and set a date in the Superior Court of Justice. The end result was that the Court Registrar communicated with the Superior Court trial coordinator and stated the following:

“… I’m being advised by the Superior court trial coordinator that she has nothing in regard to this matter being brought to Superior Court. And at this time, the current process is a Superior Court judicial pre-trial has to be set and then it will be set to a future court date at that time. So we can’t set the matter to a Superior Court date today. I would recommend to a future OCJ court, perhaps even the March 2^nd and then they can bring it forward.”

[16] On December 24, 2020, following the above-noted court appearance, Defence Counsel sent an email to the Superior Court trial coordinator confirming the election and requesting to schedule a judicial Pre-trial. The exchange is as follows:

Defence Counsel:

“My client Mr. Sandhu has elected trial by a court judge alone. I understand the next step is to set an SCJ JPT. Am I able to schedule that with you?

Trial Coordinator:

“… At the committal you can set this date. SCJ JPT: February 9, 2021 at 11 am, your client need not attend. You will need an SCJ designation to be filed prior to the JPT. When the JPT is over the judge will give you the next date.”

[17] The record confirms that Defence Counsel made significant efforts to bring the matter forward in order to appear in the Ontario Court of Justice and confirm the election on record to allow for the February 9, 2021 Judicial Pre-trial in the Superior Court of Justice. She was not successful in doing so. On March 29, 2021, the election was confirmed on record and adjourned to May 3, 2021 for the first of a series of six Superior Court Judicial Pre-trials held before Justice Lafrance-Cardinal. These Judicial Pre-trials proceeded on May 3, 2021, July 5, 2021, July 28, 2021, August 9, 2021, August 30, 2021 and April 25, 2022. It is also noted that the Indictment was signed by the Crown on April 30, 2021.

[18] The fundamental question at this stage of the analysis is whether any of the delay which occurred during the procedural transition from the Ontario Court of Justice to the Superior Court of Justice is to be imputed to the Applicant as sought by the Respondent Crown.

[19] Having considered the circumstances, the Court is of the view that the period from December 24, 2020, to February 9, 2021, amounts to defence-caused delay to be deducted from the total delay.

[20] The Court does not dispute Defence’s assertion that the inability to elect and receive instructions was from their perspective related to disclosure issues. Notably, Counsel had on several occasions sought the video recording of the December 16, 2019 statement to Constable Labbe once at the police station following his arrest. However, a summary of this statement had been disclosed from the start and revealed that not much would turn on same. The summary confirmed the following:

"0635

• PC Labbe reviewed Right to Counsel, Caution and Secondary Caution with Sandhu- Indicated he understood.
• Sandhu was satisfied with his conversation with his lawyer.
• Sandhu “respectfully declined to say anything” when being questioned.
• Sandhu nodded when asked if he had made a bad decision today regarding the incident.
• Sandhu declined to say anything further.
• Confirmed he is in his last year at RMC, studying a bachelor of aeronautical engineering.

0647- Resumed

• PC Labbe re-iterated repercussions of offence. No response from Sandhu.
• Sandhu provided with opportunity to provide his view of the event, no response.
• Sandhu declined to provide any further info.

0651 A.M. – Interview concluded"

[21] While not irrelevant, the statement is not of such magnitude so as to prevent the making of an election by Defence as to the mode of trial. In fact, it is noted that a written election under s. 536.2 of the Criminal Code was filed by Defence shortly after the December 17, 2020 OCJ Judicial Pre-trial. The record shows that it was filed on December 22, 2020. This was done notwithstanding the fact that the impugned statement was still not available. It was later confirmed in April 2021 that the file had been corrupted and could never be accessed by anyone.

[22] So that Defence not having elected in the context of the Ontario Court of Justice Judicial Pre-trials of December 10 and 17, 2020, was a significant factor in the delay which followed in setting a date in the Superior Court of Justice. It is noted that on December 15, 2020, Defence Counsel had requested a 3-week adjournment to allow for the completion of the December 17, 2020 OCJ Judicial Pre-trial and importantly, “… likely to set trial dates in the interim…”. The matter was therefore adjourned to be spoken to on January 5, 2021.

[23] This was further compounded by the fact that the process of transitioning a matter to the Superior Court was not followed by Defence as it required confirmation on record of the election and a Judicial Pre-trial would then be set.

[24] The Court is very mindful of the fact that Defence Counsel actively attempted to correct the situation and follow the process. The evidence also discloses that she encountered difficulties in trying to get the matter on course. Notwithstanding Counsel’s notable effort, the delay generated by this is seen as connected to Defence. It is linked to Defence not having instructions from the accused as to the mode of trial as confirmed by Counsel on the March 5, 2021 Court appearance and not having subsequently followed the process allowing for the matter to reach the Superior Court of Justice and the setting of a Judicial Pre-trial.

[25] Such Defence delay reduces the total delay to a net delay of 31.5 months.

[26] Crown Counsel argues that Defence further delayed the matter by not being available for earlier pre-trial motions dates offered by the Trial Coordinator of the Superior Court of Justice. The record reveals that on March 8, 2022, the said Trial Coordinator offered August 2-10, 2022, for the pre-trial motions with a trial to occur in fall 2022, or alternatively, June 6-10, 2022 for the pre-trial motions with a trial in August 2022. Defence Counsel responded that she was not available the week of June 6, 2022, as she was in another trial. The pre-trial motions were ultimately set for August 2-5, 2022, with a trial of October 6-7, 2022.

[27] The Crown’s submission is that since the Court and the Crown were ready to proceed with the pre-trial motions on June 6, 2022 but Defence was not available, this 3 months delay should be attributed to Defence and deducted from the remaining 31.5 months net delay. This is said to result in the net delay being below the 30 months presumptive ceiling.

[28] The Court rejects the Crown’s submission on this issue and agrees with Defence that at most, this equates to 5 days of defence-caused delay. This finding is based on the following considerations:

• As noted by the Supreme Court of Canada in R. v. Godin 2009 SCC 26, [2009] 2 SCR 3 at paragraph 23:

"[23]… Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability…"

• Defence had raised scheduling concerns with the Crown and Trial Coordinator in her November 5, 2021 letter. She noted the following:

"…We write to advise that our 2022 calendar is quickly filling up. We are very concerned that we may not have an available schedule by the time the Court is ready to offer new dates…"

• Counsel could not, in good faith, compromise one client’s interests for another…” – see R. v. Safdar 2021 ONCA 207

• The Crown’s position on this issue is contrary to the Ontario Court of Appeal’s instructions in R. v. Hanan, 2022 ONCA 229 where the court rejected the notion of a “bright-line rule” providing that, if defence unavailability causes a scheduling delay, then the defence must take complete responsibility for the entire period of delay. Taking a contextual approach, it cannot be said that Defence’s refusal of the June 6, 2022 date for pre-trial motions is the “sole or direct” cause of the resulting delay leading up to October 6-7, 2022. The record shows that the court could not offer trial dates before October 2022. Again, as noted in R. v. Hanan, “… periods of time during which the Court and the Crown are unavailable will not constitute defence delay…”

[29] The Court therefore finds that Defence Counsel’s unavailability to proceed with Pre-trial motions on June 6-10, 2022 does not translate to more than 5 days defence-caused delay to be deducted from the remaining 31.5 months net delay. The result is that the net delay exceeds the 30 months presumptive ceiling and thus presumptively unreasonable. The question becomes whether the Crown has rebutted this presumption by establishing the presence of exceptional circumstances.

[30] The Crown’s position is that the Covid-19 Pandemic is a discrete event amounting to an exceptional circumstance which directly impacted the speed at which this matter proceeded to trial. Crown Counsel notes that from March 2020 to October 2020, the matter was adjourned three times as per the guidelines ordered by the Government of Ontario. These adjournments made it such that there was little activity during this period of close to seven months. This delay is directly attributable to the Pandemic.

[31] The Crown submits that the closing of the courts has led to an overwhelming backlog. This matter must be looked at in the context of the numerous other cases which were already in the system and set for trial. These cases needed to be re-scheduled for trial. The Court is reminded that no case is an island as the system revolves around many other cases. Doing so, has been very challenging for all including Trial Coordination. There have been significant issues of communication.

[32] It is also submitted that the Crown, as it must, took reasonable available steps to avoid the presumptive ceiling being exceeded. Crown Counsel raises the fact that this matter was flagged by Trial Coordination as being “Jordan sensitive” and was given priority in scheduling for the second half of 2022. Counsel also relies on the Crown having been ready to proceed on the first available dates which were offered to the parties.

[33] Counsel for the Applicant maintains that the delay in this matter was not caused by the Covid-19 Pandemic. It is noted that when the Pandemic hit, this case was at an early stage as no pre-trial motion or trial dates needed to be rescheduled.

[34] The submission is that the delay is unconnected to Covid-19 but results from the Crown’s failure to provide disclosure which was repeatedly sought by Defence. The Crown failed to complete disclosure until nearly a year and a half following the laying of the charges. It took until April 2021 to confirm that the audio of the accused’s video statement had been irreparably corrupted. Defence is the one who diligently pursued disclosure. In turn, the Crown did not take reasonable steps to resolve the issue regarding the said statement.

[35] The delay is also said to be linked to the state’s failure to properly resource the Cornwall Courts. The lack of judicial resources caused by the failure to appoint a Judge resulted in delay which is not as a result of the Pandemic. It is also argued that the Crown failed to assist in mitigating delay by not assisting Defence in its attempt to get earlier pre-trial dates in the Superior Court of Justice

[36] Defence therefore argues that the Crown has not shown that the delay is justified by exceptional circumstances. Nor did the Crown take reasonable steps to address the delay in this matter.

[37] Is the presumptively unreasonable net delay which exceeds the 30 months presumptive ceiling rebutted by the Covid-19 Pandemic?

[38] The advent of the Covid-19 Pandemic is unquestionably an exceptional circumstance, specifically a discrete event as contemplated by the Supreme Court of Canada in R. v. Jordan. This finding is supported by a number of decisions from the Ontario Superior Court of Justice which include:

• R. v. Simmons, 2020 ONSC 7209 (J. Nakatsuru)
• R. v. Obregon-Castro, 2021 ONSC 1096 (J. Code)
• R. v. Ali, 2021 ONSC 1230 (J. Somji)
• R. v. Henry, 2021 ONSC 3303 (J. O’Marra)
• R. v. Huang, 2021 ONSC 8372 (J. Dambrot)
• R. v. Brooks, 2022 ONSC 115 (J. Copeland)
• R. v. Hyacinthe, 2022 1444 (J. Harris)
• R. v. Thompson, 2022 ONSC 2712 (J. Miller)

[39] This major worldwide health crisis was reasonably unforeseen and unavoidable. It was beyond control as it struck everywhere including at the core of our justice system and its operation. Its repercussion was such that it required the suspension of most of the Court’s operation from March 2020 to October 2020, a period of close to 7 months.

[40] As noted by Justice Code in R. v. Obregon-Castro, op. cit., when discussing the significance of a health crisis on Charter-protected rights, reference is made to the Supreme Court of Canada’s seminal decision in Reference RE s. 94(2) of the Motor Vehicle Act (1985), 1985 CanLII 81 (SCC), 23 C.C.C. (3d) 289, where “epidemics” were identified as one of the very few “exceptional conditions” that could justify placing s.1 reasonable limits on s.7 Charter rights.

[41] In describing the magnitude of Covid-19 and its consequences on the administration of justice, the Court can do no better than echo the words of Justice Nakatsuru at paragraph 70 of R. v. Simmons, op.cit:

“[70] Second, 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 trial 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 ensured. 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.”

[42] The Court is mindful that the finding of a “discrete exceptional event” does not end the inquiry. As noted by Justice Dambrot in R. v. Huang, op.cit., at paragraph 171, it is still necessary to consider how the pandemic affected the particular case. The focus is whether the discrete event caused the delay. The Crown must show that but for the pandemic, earlier dates would have been obtained for the case.

[43] Having considered the relevant principles and the circumstances in this matter, the Court finds that the excessive delay is linked to the Covid-19 pandemic and that but for this discrete event, earlier dates would have been available to hear this trial. This finding is based on the following considerations:

1. It is undisputed that following the January 14, 2020, February 11, 2020, February 27, 2020 and March 24, 2020 appearances, the matter was adjourned on three separate occasions from March 24, 2020 to October 20, 2020 by reason of directives issued by the Chief Justice of the Ontario Court of Justice, in response to Covid-19. It was therefore impossible for the matter to move forward in the process leading towards the setting of any dates either for a Judicial pre-trial or a trial in the Ontario Court of Justice, nor for a committal to stand trial in the Ontario Superior Court of Justice.

The reality is that the matter was practically stalled for a period of seven months in the midst of the suspension of most of the Court’s operation which was directly connected to this health crisis. This is true notwithstanding the fact that this case was at an early stage when the pandemic struck. It would not have been adjourned for a period of some seven months but for Covid-19 and the need for the Chief Justice to suspend most of the Court operations in response to this unforeseen and dangerous event.

2. The facts reveal that following the end of the suspension of most of the Court operation on October 20, 2020, the case was able to move forward in the process at a reasonable pace when one considers the circumstances. In fact, Judicial pre-trials were held on December 10 and 17, 2020 in the Ontario Court of Justice before Justice Lahaie. These were heard within less than 2 months following the suspension. This is found to support the Court’s finding of a nexus between Covid-19 and the delay from March to October 2020.

3. With respect to the Applicant’s assertion that delay is explained in good part by the lack of Judicial resources and the state’s failure to appoint a Judge of the Superior Court of Justice in Cornwall, the Court finds that while this may account for the delay once the matter transitioned to the Superior Court Justice level, it cannot account for the delay prior to such transition. There is no suggestion that the Ontario Court of Justice lacked judicial resources. As already indicated, the reality is that Court operations were for the most part suspended while the matter was before the Ontario Court of Justice and this was directly connected to Covid-19.

4. The Court previously addressed the issue of the Crown’s failure to provide disclosure and the impact of this on delay. As noted, while not irrelevant, the missing disclosure was not of such magnitude so as to prevent the matter from moving forward and frustrate Defence’s ability to elect a mode of trial. This view is supported by the fact that the matter did move forward and transitioned to the Superior Court of Justice for trial notwithstanding the fact that it was only later confirmed in April 2021 that the recording of the impugned accused statement was corrupted and unavailable. While the Crown’s failure to disclose within a reasonable period of time raises concerns, the seven months delay from March 2020 to October 2020 is found to be connected to Covid-19 and not the Crown’s failure to disclose. The case could have moved forward notwithstanding missing disclosure but couldn’t by reason of the suspension of most of the Court’s operations.

5. The Court has also considered the fact that in the normal course of things (i.e., outside of restrictions imposed by the Chief Justice from March to October 2020) the Crown’s failure to disclose even material evidence, would not have generated such delay pending full disclosure. This reasoning is based on the instructions of the Ontario Court of Appeal in R. v. N.N.M., 2006 CanLII 14957 (ON CA), [2006] OJ no 1802 which were recently re-affirmed in R. v. Allison, 2022 ONCA 329. The Court stated the following in R. v. N.N.M. at paragraph 37:

"[37]… Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. As this court stated in R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 at para. 47 (Ont.C.A.). “the Crown is not obliged to disclose every last bit of evidence before a trial date is set.”"

This is especially true in the present matter as the Crown had disclosed a summary of the accused’s statement which revealed that not much, if anything, would turn on same. In fact, he chose not to say anything to the police. The same applies to the request for a video while inside the cruiser as none existed.

6. This matter cannot be looked at in isolation. Delay must be assessed in conjunction with the many other cases which were also impacted by the Covid-19 pandemic. This notion was recently reaffirmed by the Supreme court of Canada in R. v. K.G.K 2020 SCC 7 by referring to the words of Justice Doherty of the Ontario Court of Appeal in R. v. Allen 1996 CanLII 4011 (ON CA), [1996] OJ no 3175:

"Reasonableness under s.11(b) has always accounted for the reality that “no case is an island to be treated as if it were the only case with a legitimate demand on court resources.”"

7. In the same vein, the reasonableness of the efforts made by the Court and Crown to respond and mitigate delay requires a contextual approach. It must be appreciated in light of the deep and longstanding repercussions of the pandemic on the Justice system. It is undeniable that this never seen before discrete event had a “significant domino effect” (see R. v. Hyacinthe, op.cit., paragraph 17). As noted by Justice Nakatsuru at paragraph 72 of R. v. Simmons, op.cit.:

"[72] … the discrete exceptional event caused by the Covid-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes 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 in assessing what the Crown and the court can reasonably do in mitigating the delay."

Seen in proper context, the efforts taken by the Court and the Crown in this matter are found to be reasonable. Notably, the case was subject of six judicial pre-trials from May 3, 2021, to April 25, 2022 before Senior Justice Lafrance-Cardinal, notwithstanding the fact that, by all account, this is not a complex matter. In fact, it is set for a two-day trial following four days of pre-trial Charter Applications. Significant judicial resources were therefore provided in what is undeniably an important step of the process.

Also significant is the fact that steps were taken by Trial Coordination to bring the matter forward even if dates had been set. The record shows that on August 30, 2021, the pre-trial Applications had been set for March 6-9, 2023, with trial dates of June 5-6, 2023. However, on March 8, 2022, earlier dates were offered namely, August 2-10, 2022 for the pre-trial Applications with a trial in the fall of 2022 or alternatively, June 6-10, 2022, for pre-trials and a trial in August 2022. As discussed, Defence was not available the week of June 6, 2022, as she was in another trial. The pre-trial motions were ultimately set for August 2-5, 2022, with a trial of October 6-7, 2022. Crown Counsel agreed to the earlier dates offered by the Court.

The point is that the authorities were not complacent and did not sit idly waiting for the delay to exceed the presumptive 30 months ceiling.

CONCLUSION

[44] The Court therefore finds that when properly analyzed and looked at in the context of the Covid-19 pandemic, the delay from the laying of the Information on December 16, 2019, to the anticipated end of trial on October 6, 2022, does not breach the Applicant’s right to be tried within a reasonable time pursuant to s.11(b) of the Charter. The Application is dismissed accordingly.

Released: June 30, 2022

The Honourable Justice Ronald M. Laliberté

COURT FILE NO.: 21-30 DATE: 2022/06/30

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Christian Sandhu

RULING ON APPLICATION TO STAY PROCEEDINGS PURSUANT TO SECTION 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS (sec. 11(b) delay)

The Honourable Justice Ronald M. Laliberté

Released: June 30, 2022