Court File No.: CR-21-101265

Date: 2022-07-07

Superior Court of Justice - Ontario

Re: R. v. Ousmane Kromah

Before: G. E. Taylor, J.

Counsel: Alyssa Bain and Katherine Enns, Counsel for the Crown Malcolm McRae and Cooper Lord, Counsel for Ousmane Kromah

Heard: June 13, 2022

Endorsement

Application for a Stay of Proceedings

Introduction

[1] Ousmane Kromah is charged with manslaughter, two counts of aggravated assault and two firearm offences. The circumstances giving rise to the charges occurred on December 15, 2019. Ousmane Kromah was charged on May 5, 2020. He has been in custody since his arrest on May 4, 2020. Pretrial applications were scheduled for three weeks commencing June 13, 2022 and were completed within the allotted time. The trial is scheduled to begin on October 24, 2022 and to be completed by December 2, 2022.

[2] Ousmane Kromah seeks a stay of all charges on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms has been violated.

Background

[3] Ousmane Kromah was arrested on May 4, 2020 and the Information was sworn the following day. He was committed for trial on March 24, 2021. He was originally required to appear in Trial Scheduling Court on April 30, 2021, but that date was cancelled by order of the Regional Senior Justice due to issues related to the COVID-19 pandemic. The Order of the Regional Senior Justice provided that "due to the ongoing public health crisis", all appearances scheduled for between April 23 and May 7, 2021 in Kitchener, Ontario were re-scheduled to be addressed in Trial Scheduling Court on May 28, 2021. The pretrial conference was held on May 12, 2021.

[4] It was agreed at the pretrial conference that three weeks would be required for pretrial motions and six weeks would be required for the trial. Immediately following the pretrial conference, counsel for Ousmane Kromah sent an email to the trial coordinator in Kitchener and Crown counsel in which he stated: "My availability starts November 8, 2021". I note that for several years local trial coordinators in the Central South Region have not been responsible for scheduling homicide cases which are all administered by the Office of the Regional Senior Justice.

[5] On May 13, 2021, the Crown responded by stating that counsel was not available to start pretrial motions on November 8, 2021 due to a previously scheduled homicide jury trial. Defence counsel responded on May 13 that he would be available to start pretrial motions on January 10 or 17, 2022 but if the pretrial motion were to commence on January 10, he would have to seek to adjourn a two-day Ontario Court trial scheduled for that week.

[6] By way of an email dated May 25, 2021, defence counsel advised that his availability to start pretrial motions had changed to January 24, 2022. On May 28, 2021, defence counsel wrote asking when he could expect to receive dates for the commencement of pretrial motions. Later that same day, the Office of the Regional Senior Justice advised that dates would be provided the following week. On June 17, 2021, not having heard from the Office of the Regional Senior Justice, defence counsel sent an email requesting dates be provided.

[7] On June 22, 2021, the Office of the Regional Senior Justice advised that pretrial motions could begin on January 3, 10 or 17, 2022 for three weeks and the trial could begin on April 18 for eight weeks. Crown counsel were available for the dates proposed. Defence counsel took the position that he was not available due to numerous trials set while waiting for dates to be provided. After receiving the defence response, the Office of the Regional Senior Justice proposed that pretrial motions start on February 2, 2022 with the trial to begin on May 9, 2022. The Crown was available on these dates but defence counsel was not.

[8] Finally, on June 22, 2022, the Office of the Regional Senior Justice advised that the pretrial motions and the trial could be accommodated on April 18, 2022 for pretrial motions with the trial beginning on May 23, 30 or June 6. The Crown indicated that any of the proposed dates were acceptable. None of the dates were acceptable to the defence.

[9] In the final email of June 22, 2022 (referred to in the preceding paragraph), the Office of the Regional Senior Justice suggested June 13, 2022 for the start of pretrial motions with the trial to begin on October 24, 2022. These dates were acceptable to all counsel.

[10] An affidavit sworn by a law clerk of defence counsel, states that on May 27, 2021, a trial date for another case was scheduled for February 7 and 8, 2022 and on June 11, 2021 a 12 day trial for another matter was scheduled to start on May 9, 2022.

[11] On June 25, 2021, the dates for pretrial motions and the trial were set. Pretrial motions were scheduled for three weeks commencing June 13, 2022 and the six week trial was set to begin on October 24, 2022. At that time, counsel for Ousmane Kromah stated:

On May the 12th we conducted a judicial pretrial and came to the estimates that you've just heard about. I emailed the trial coordinator on that date requesting dates and offering my availability commencing November the 8th of this year. The only response that I received from the Crown was that they were not available in November. I then offered availability commencing in January. I followed up on several occasions. The first time I received a response from the Crown or the Court was on June the 22nd offering dates commencing in January. I would've been available in January up until June of this year but in the meantime, having no – received no response about possible court availability or when availability may commence, I scheduled a number of trials which is what has led to the delay in this matter and it being scheduled commencing in June and finishing in December of next year as opposed to finishing next summer.

[12] There was no suggestion that by scheduling the trial to begin on October 24, 2022 and to finish on December 2, 2022, the defence would take the position that Ousmane Kromah's right to be tried within a reasonable time as guaranteed by the Charter would be violated. No mention was made of the intention of Ousmane Kromah to seek a stay of proceedings based on a violation of his right to be tried within a reasonable time.

[13] The Pretrial Conference Report completed by the Regional Senior Justice stated that the defence did not intend to bring a stay application for a s.11(b) Charter breach. That position did not change until March 25, 2022 when defence counsel advised the Crown that it would be seeking a stay of proceedings based on delay. At no time did counsel on behalf of Ousmane Kromah seek a further pretrial conference to advise of the change in position regarding a breach of s.11(b) of the Charter as required by the Criminal Proceedings Rules and the Provincial Practice Direction Regarding Criminal Proceedings dated August 12, 2020.

Discussion

[14] The seminal case of R. v. Jordan, 2016 SCC 17 describes the methodology to be followed in determining whether the right of an accused to be tried within a reasonable has been violated. The Jordan framework requires, as a first step, to determine the total delay from the date of the charges to the anticipated completion of the trial (para.60). Ousmane Kromah was arrested on May 4, 2020 and charged on May 5, 2020. His trial is expected to be completed by December 2, 2022. Counsel are agreed that this will result in a total delay of 30 months and 28 days. This means that the Jordan presumptive ceiling is exceeded by 28 days.

[15] The next step in the Jordan analysis is to determine if any part of the total delay is attributable to the defence (para. 60). Defence delay is that caused solely by the conduct of the defence. Defence delay includes when the court and the Crown are ready to proceed, but the defence is not and the period resulting from that unavailability will be attributed to the defence (para. 64). The "net delay" which is the total delay less defence delay is compared to the presumptive ceiling of 30 months.

[16] If the net delay is greater than 30 months, it is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances (para. 68). If the net delay is less than 30 months, the onus is on the defence to establish that the delay is never-the-less unreasonable (para. 78).

[17] In R. v. Cody, 2017 SCC 31, the Court emphasized that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time (para. 1).

[18] Between committal for trial and the setting of dates for pretrial applications and the trial was a period of approximately three months. During this period, the pretrial conference was held. In my view, a period of three months between committal and the setting of trial dates is a reasonable length of time.

[19] There was a delay between May 12, 2021, the date of the pretrial conference, and June 22, 2021, the date on which the Office of the Regional Senior Justice provided some proposed dates for pretrial motions and the trial. This delay was unfortunate. However, it must be kept in mind that this was an exceedingly tumultuous period of time for the administration of justice. I do not propose to recite the history of all the difficulties experienced by courts generally and the Superior Court in particular. In May and June 2021, the Superior Court in the Central South Region was attempting to return to some semblance of normalcy after being shutdown for months in 2020, re-opened in the fall of 2020 and then having to be shutdown again in the late fall of 2020. The backlog of cases to be scheduled was significant. By order of the Regional Senior Justice, all criminal cases scheduled between April 23 and May 7, 2021 were re-scheduled to be spoken to on May 28, 2021. This exacerbated the scheduling crisis.

[20] Initially, dates for pretrial motions were suggested for January with the trial to commence on April 18, 2022. Crown counsel was available. Defence counsel was not available to hold pretrial motions in January 2022 and to begin the trial on April 18, 2022. This would have resulted in a trial completion date of May 27, 2022. Defence counsel's position was stated to be that if he had been advised earlier of these proposed dates he could have kept them open but the proposed dates were not acceptable because "I have set numerous trials since in the proposed date range". No further details were provided.

[21] It was then suggested that pretrial motions commence on February 7, 2022 and the trial begin on May 9, 2022. Crown counsel was available. Defence counsel simply stated that he was not available on the dates proposed. This proposal would have resulted in the trial being completed by June 17, 2022.

[22] Finally, on June 22, 2021, the Office of the Regional Senior Justice suggested two alternatives. The first suggestion was for pretrial motions to begin April 18 and for the trial to commence on May 23, 30 or June 6, 2022. The second alternative was for pretrial motions to be held starting June 13, 2022 with the trial to commence on October 24, 2022. Defence counsel responded that he was agreeable to setting the June and October 2022 dates. Defence counsel did not respond to the first proposed dates of April for pretrial motions and May or June for the start of the trial. If any of the trial dates in the first alternative had been accepted, the trial would have been completed between July 1 and 15, 2022.

[23] Accordingly, pretrial motions were set for three weeks starting on June 13, 2022 and the trial was set to begin on October 24, 2022.

[24] The evidence on this application is that defence counsel was not available due to conflicting trial dates on February 7 and 8, 2022 and from May 9 to 25, 2022. These dates were set before June 25, 2021, the date on which pretrial motions and the trial date were scheduled for the present case. The February dates would not have conflicted with any of the proposed pretrial motion dates. Pretrial motions scheduled to begin on April 18, 2022 would have been completed by May 6, 2022. The trial scheduled to begin on May 9, 2022 would have been completed May 25, 2022.[^1] Therefore, the suggestion that pretrial motions begin on April 18 with the trial to start on May 30 or June 6, 2022 would not have resulted in a conflict with either of defence counsel's scheduled trials.

[25] I am mindful of the submission that defence counsel requires reasonable time for preparation. However, it is important to bear in mind the admonition that all participants in the criminal justice system have an obligation to cooperate in order to facilitate the timely scheduling of trials. In certain circumstances that may mean having to complete pretrial motions, or a trial, in one case at the end of the week and then to prepare for and begin another trial the following Monday.

[26] Ousmane Kromah relies on the statement by the Supreme Court of Canada in R. v. Godin, [2009] S.C.R. 3 at paragraph 23 that: "Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(b) purposes, require defence counsel hold themselves in a state of perpetual availability". This comment was made in the context of defence counsel not being available for the first date offered for a re-scheduled preliminary inquiry which resulted in a delay of a month and a half. However, in Godin, when the original preliminary inquiry date was scheduled for seven months into the future, defence counsel promptly wrote to the court and the Crown suggesting 31 alternative dates on which he was available for a one-day preliminary inquiry. There was no response to this proposal.

[27] In contrast, in the present case, defence counsel suggested pretrial motions be held in November 2021 when Crown counsel was engaged in another homicide trial. Defence counsel then suggested pretrial motions begin on January 10 or 17, 2022 but this was shortly changed to January 24. Thereafter no dates were proposed by the defence. Significantly, in my view, when dates were proposed, the position of defence counsel was that the dates were not acceptable. There was no spirit of cooperation exhibited to attempt to schedule dates that were acceptable to the Crown, defence and the court.

[28] If the proposal to begin the trial on June 6, 2022 had been accepted, the trial would have been completed by July 15, 2022. This would result in the trial being completed approximately 4.5 months earlier than the currently scheduled end of the trial. In my view, this period is appropriately considered as defence delay. The net delay is therefore 26.5 months which is below the presumptive ceiling.

[29] It is also significant that when the trial date was set Ousmane Kromah's position was that delay was not an issue. That was the position set out in the Pretrial Conference Memorandum. While it is clear that defence counsel expressed exasperation over the trial scheduling procedure when the date was set on June 25, 2021, it was just that. Expressed exasperation. There was no suggestion that by scheduling the trial to begin on October 24, 2022, Ousmane Kromah would consider his Charter guaranteed right to a trial within a reasonable time to be violated. The trial date was set on the expectation of the Crown and the court, which I find to be reasonable, that delay was not an issue.

[30] The Criminal Proceedings Rules and the Provincial Practice Direction Regarding Criminal Proceedings require that when the position of an accused regarding a breach of s.11(b) of the Charter changes following the pretrial conference, the defence must notify the Crown and the trial coordinator in writing of the change in position and arrange a further pretrial conference "as soon as practicable". One of the reasons for scheduling a further pretrial conference is so that efforts can be made to accommodate the case within the 30-month ceiling established in Jordan.

[31] By waiting until March 25, 2022 to advise that a stay of proceedings would be sought because of delay, it was not possible to attempt to reschedule either the pretrial motions or the trial. The requirement of scheduling a further pretrial conference was ignored.

[32] Had defence counsel clearly articulated on June 25, 2021 that scheduling the six-week trial to begin on October 24, 2022 would result in a breach of his client's right pursuant to s.11(b) of the Charter to be tried within a reasonable period of time, or if a further pretrial conference had been arranged as directed by the rules, I am confident that this case would have been scheduled so that the presumptive ceiling would not be breached.

[33] When the net delay is less than 30 months, it remains open to the defence to establish unreasonableness if it is shown that it took meaningful steps to demonstrate a sustained effort to expedite the proceeding and the case took markedly longer than it reasonably should have (Jordan, para. 82).

[34] Ousmane Kromah submits that he took meaningful steps to expedite the proceeding and that the case took markedly longer than it should have. I disagree with both premises. The efforts on the part of defence counsel relied upon to show attempts to expedite the case were in my view largely cosmetic. Within an hour of the start of the pretrial conference, defence counsel had sent an email saying he was available starting the week of November 8, 2021. There is no suggestion about the Crown being consulted prior to the email being sent. Counsel's availability for the trial is also not addressed.

[35] In subsequent emails, defence counsel stated that he was available to begin pretrial motions in January 2022 and then he changed his position to not being available until January 24. No reason was given for this change. Defence counsel sent emails to the Office of the Regional Senior Justice dated May 28, and June 17, 2021 requesting dates. However, when dates were offered, defence counsel exhibited no flexibility in scheduling dates for the pretrial motions and the trial which would not result in the completion of the trial being over the presumptive ceiling. In my view it has not been established that a sustained effort to expedite the proceeding was made. To establish a sustained effort, compliance with the rule requiring the Crown and the court to be advised as soon as practicable after a decision has been made to challenge the reasonableness of the delay in bringing the case to trial and to schedule a further pretrial conference is necessary.

[36] As the Court stated at paragraph 85 in Jordan:

To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

[37] In this case, I find that the statement made by defence counsel at Trial Scheduling Court on June 25, 2021 was nothing more than an assertion that an earlier date would have been preferred. I am not satisfied that the defence has demonstrated meaningful and sustained steps to schedule an early trial. The defence has not demonstrated that it was cooperative with and responsive to the Crown and the court when dates were being proposed. Rather the defence showed virtually no flexibility when dates were proposed. Finally, timely notice of the intent to seek a stay of proceedings because of delay was not given. Instead, the defence waited until it was too late to schedule earlier dates before declaring its intention.

[38] Although not strictly necessary to decide this application, I would also find that the delay between April 30, 2021, the date of the first Trial Scheduling Court, and June 25, 2021, when the pretrial motion and trial dates were set, was caused by a discrete event, namely the COVID-19 pandemic. That period is 56 days which when subtracted from the total delay results in a net delay of 29 months and two days, which is also below the presumptive ceiling.

Conclusion

[39] For the above reasons the application to stay this indictment because of a breach of Ousmane Kromah's right to be tried in a reasonable time is dismissed.

G.E. Taylor, J.

Date: July 7, 2022

[^1]: This is calculated on the basis of a 12 day trial and allowing for the holiday Monday in May falling during the course of the trial.