R. v. Thompson, 2022 ONSC 4284

Court File and Parties

COURT FILE NO.: CR-20-700000247-0000 DATE: 20220721

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

MARK THOMPSON Applicant

COUNSEL: Darren Hogan and Karolina Visic, for the Respondent Alana Page and Angela Ruffo, for the Applicant

HEARD: March 21, 22 and April 1, 2022

RULING ON AN APPLICATION TO STAY PROCEEDINGS

B.P.O’Marra J.

overview

1The applicant faced a charge of manslaughter. The homicide occurred on June 25, 2018. The trial was scheduled to proceed in this court on May 24, 2022. The applicant applied for a stay of proceedings based on sections 11(b) and 24(1) of the Charter. On April 1, 2022, I dismissed the application. These are my reasons.

THE CHRONOGOLY

2On June 25, 2018, a drug dealer was robbed and shot to death in his apartment in Toronto.

3On June 28, 2018, Warren Farrell was arrested and charged with the murder. He was alleged to be the shooter.

4On July 5, 2018, the applicant was arrested and charged with the murder. He was alleged to have been present and a party with the common intention for murder.

5On December 7, 2018, dates were scheduled for a Preliminary Hearing. The Crown was available as of September 9, 2019. Counsel for Farrell was not available in that month. Counsel for the applicant was not available for the weeks of October 21 or 28, 2019. On consent, the dates set were for four weeks commencing November 4, 2019. Counsel for the applicant concedes that he is responsible for two weeks of delay from October 21 to November 4, 2019.

6Two Crowns were assigned for this case from the outset. The senior Crown was Joanne Capozzi. She was to be assisted by a Crown who had been called to the Bar in 2010.

7Ms. Capozzi was also scheduled for an in custody jury trial to last eight days and to conclude by October 24, 2019. Counsel for the accused in that trial brought a series of applications before the trial judge. Those applications had not been raised or accounted for when the trial date was set to conclude by October 24, 2019. The jury in that case was not even selected until October 24, 2019. Verdicts were not returned until November 22, 2019. Thus, Ms. Capozzi was not available for the start of the Preliminary Hearing for the applicant and his co-accused.

8Three days before the Preliminary Hearing was to start, a key Crown witness became unavailable due to a serious health issue. The precise nature of the health issue has not been disclosed for privacy reasons. The witness was a police officer who had dealt with the important issue of surveillance videos and discrepancies in time stamps. That evidence was disputed by counsel for both accused who planned to cross-examine the officer at some length.

9The Crown enlisted another officer to figure out and present the time stamps issues. This was a very time consuming and complex task. It involved some 70 hours of additional preparation time. The prosecution and police devoted substantial time, effort and resources to this contentious and important issue. They were eventually able to establish the accuracy of the time stamps by an alternate method. The defence eventually conceded the accuracy of this evidence.

10The Crown who was to assist Ms. Capozzi was set to conduct the Preliminary Hearing on his own. At the outset of that proceeding on November 4, 2019, he outlined the anticipated evidence and issues for the first two weeks. He anticipated that the Preliminary Hearing would finish on time.

11On November 6, 2019, Crown Attorney Sean Doyle contacted counsel for the accused to advise that the Crown who was to present the case was unfortunately ill and was unavailable to attend court on November 7, 2019. Mr. Doyle indicated that the Crown would request an adjournment to November 8, 2019. On that date the Crown requested a further adjournment to November 13, 2019. The defence opposed this and requested that a “replacement Crown” attend for November 12, 2019 to complete the evidence on a voir dire that was in progress. That voir dire involved four police witnesses. No evidence was called on November 12, 2019.

12The Crown’s health issue was such that he was placed on an extended medical leave. He never returned to the case. He was not even available to consult with the new Crown counsel who would take over carriage of the case. The precise nature of his health issue has not been disclosed for privacy reasons.

13Within three days of that Crown’s absence, senior Crown counsel Anna Tenhouse became involved in the case. She is a member of the homicide team at the Crown’s office. She started calling evidence on the fourth court day after the assigned Crown had to leave the case. She was assisted by Assistant Crown Karolina Visic (who has remained on this case since then).

14Not surprisingly, the two new Crowns needed some days out of court to get up to speed on the case. They called witnesses on November 13 and 14, 2019. Ms. Tenhouse advised counsel and the court that there were three police witnesses scheduled for November 15, 2019. That date was later vacated so the Crown could prepare. Counsel for the applicant conceded the issue of voluntariness on his post arrest statement for purposes of the Preliminary Hearing. The witnesses on that issue would be examined by way of discovery after the Preliminary Hearing.

15Between November 14-19, 2019, all counsel were in contact with the trial coordinator to secure further dates for evidence and submissions. The following additional dates were added on consent: November 20, 22, 25-29, December 10-13 and 16, 2019 inclusive. Counsel for the applicant also advised that she was available for dates in January, February and March 2020.

16The original schedule for the Preliminary Hearing set out 19 court days between November 4-29, 2019. 11 of those days were actually used for evidence and submissions.

17On November 22, 2019, senior Crown counsel Ms. Capozzi returned to this case after the verdicts in the protracted jury trial that was to finish by October 24, 2019. No witnesses were called that day. Counsel engaged in a focus hearing. Ms. Capozzi joined Ms. Tenhouse and Ms. Visic for the Crown.

18Mr. Capozzi was scheduled to retire from the Crown’s office on December 31, 2019. That was long after the originally scheduled Preliminary Hearing in this matter. The Crown’s office now assigned senior counsel Darren Hogan to this case. He has remained on this case, along with Ms. Visic since late 2019.

19On March 11, 2020, the evidence at the Preliminary Hearing was completed after 24 days of evidence and submissions. On that day the World Health Organization proclaimed the outbreak of the Covid-19 pandemic. Counsel agreed to make submissions on committal in writing. Counsel for Farrell conceded committal for trial on second degree murder. Counsel for the Crown and the applicant agreed to serve and file written submissions by March 23, 2020, with oral submissions set for March 24, 2020.

20On March 16, 2020, all courtrooms in Ontario were shuttered due to the pandemic. Counsel agreed to provide any further submissions on committal in writing. Those submissions included transcripts and digital copies of exhibits. The applicant concedes there should be 17 days attributed to exceptional circumstances.

21On May 11, 2020, the applicant was committed for trial on the charge of manslaughter.

22Between June 12, 2020 and December 5, 2020, the applicant was on bail. On the latter date he was arrested based on an alleged breach. His sureties were also no longer able to supervise him. He has remained in custody on this charge since December 5, 2020.

23On June 25, 2020, an 8-week jury trial was set for May 4, 2021. The Crown and the court had earlier dates available for trial. Dates in February and March 2021 were offered but counsel for the applicant was not available until the end of April 2021. The Crown submits there were 74 days of delay attributable to the applicant. The applicant agrees there is defence delay but submits it should be set at 63 days.

24Between January 2021 and June 2021, 6 pretrial motions were presented and dealt with by Justice Kelly Byrne. These were originally scheduled to last 2 weeks but took 8 weeks over time.

25In April 2021, the applicant applied for bail. He was denied.

26The first scheduled jury trial for the two accused was set to proceed in May and June 2021. However, as of March 17, 2021, based on the pandemic, jury trials could not proceed in Ontario until July 5, 2021, at the earliest.

27On April 6 and 9, 2021, counsel for the applicant applied for severance of his trial and an order directing that he proceed without a jury for trial in May and June 2021. The Crown position was that they would consent to a re-election for trial by judge alone provided both accused agreed to do so. The Crown was opposed to a severance. Counsel for Farrell advised that he would not agree to re-elect trial by judge alone.

28On April 16, 2021, the application for re-election was dismissed. The issue of severance then became moot.

29A new trial date was set for May 24, 2022, with an anticipated end date of July 8, 2022. Counsel for Farrell was unavailable for the entire period from and including July 2021 and May 2022. Counsel for the applicant was available for trial in July 2021. Counsel was not available from and including October 2021- March 2022. The Crown was not available from and including July 2021 until October 2021.

COMPLEXITY OF THE CASE

30This case was factually, logistically and legally complex.

31The applicant was alleged to have been a party to the culpable homicide caused by the shooter. Criminal liability for such a party usually depends, as in this case, on layers of circumstantial evidence. The case against the non-shooter is factually and legally more complex than that against the shooter.

32The complexity of this case, with two accused, was reflected in the actual court time used before and after committal for trial.

33The Preliminary Hearing occupied 24 count days before submissions on the contested committal for trial of the applicant.

34The joint jury trial was scheduled for 6 weeks. Pretrial motions in the Superior Court were scheduled to take 2 weeks. In fact, 8 weeks were required to complete them.

UNAVAILABILITY OF THE ASSIGNED SENIOR CROWN

35Mr. Capozzi reasonably anticipated she would be available for the scheduled commencement of the Preliminary Hearing. The fact that she was unavailable was not due to being double booked. She was the assigned Crown on an in custody jury trial that was scheduled to conclude by October 24, 2019. For various reasons beyond her control that other trial was not concluded until November 22, 2019. Based on a flurry of unanticipated defence applications on the other jury trial, the jury was not even selected until October 24, 2019.

36Ms. Capozzi was also scheduled to retire as of December 31, 2019. That was a date that must have been set at least several months in advance. The Preliminary Hearing of this matter was scheduled to conclude before the end of November 2019. The fact that she would not be available to continue the Preliminary Hearing for the further dates in 2020 was not the consequence of bad planning or lack of attention by the Crown’s office. The fact that senior Crowns Anna Tenhouse and Darren Hogan were brought into the case in November of 2019 showed an appropriate and reasonable degree of priority afforded by the Crown’s office.

UNAVALIABILITY OF A KEY WITNESS AND THE ASSIGNED CROWNS FROM EARLY ON

37There is no basis to believe that the illness that sidelined a key Crown witness and the assisting Crown could have been anticipated or dealt with in any other reasonable fashion. The officer’s anticipated evidence was complex and contentious. The health issue for the assisting Crown was such that he was not even available to brief a new counsel to step into the case. The situation would be no different if counsel for the accused had been ill and unable to proceed.

38Before the Preliminary Hearing started and after 3 days of evidence the Crown was represented by at least 2 counsel at all times, including senior counsel Anna Tenhouse and Darren Hogan. Before the scheduled conclusion of the hearing, Mr. Hogan and the assistant Crown Ms. Visic were involved and have remained so since that time.

39I am satisfied that there was no dilatory conduct by the Crown in their efforts to move the Preliminary Hearing forward.

RE-ELECTION AND SEVERANCE

40The applicant submits that in the circumstances the Crown should have consented to a severance and re-election so that he could be tried in May and June 2021, rather than one year later. I agree that if the interests of the applicant were the sole or primary ones deserving of consideration that would be correct.

41The applicant was jointly charged with the shooter on an alleged murder. The alleged shooter had a right to be tired by a judge and jury. He was not prepared to re-elect judge alone even if the Crown consented.

42The issue of Crown consent to a re-election is a matter of discretion. For well established reasons, courts are reluctant to override the exercise of Crown discretion absent some indication of an oblique motive or unfairness; Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 32; R. v. Anderson, 2014 SCC 41 at paras. 37 and 44. The issue of severance of alleged co-perpetrators is a matter for the court based on the interests of justice: Criminal Code s. 591(3).

43In any criminal trial, counsel for the Crown and defence make decisions that have consequences. The Crown was prepared to consent to a re-election provided both accused agreed to do so. The motions judge dismissed the application to override the Crown decision to decline re-election. There was no finding of oblique or improper motive for the Crown exercise of its discretion.

44If there had been an order permitting re-election and severance the two separate trials would have involved almost all of the same evidence with the attendant time involved. The Crown is not obliged to declare the basis upon which it exercises its discretions. In this case there is no basis to believe that discretion to decline re-election was unfair to the applicant or that it caused unreasonable delay in his time to trial.

ANALYTICAL FRAMEORK

45In R. v Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, sets out the framework for analysis in determining a s.11(b) violation:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;

2. Subtract defence delay 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, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;

5. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Days”) for the purpose of determining whether is the presumptive ceiling has been reached;

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.

See R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41.

IMPACTS OF THE COVID-19 PANDEMIC

46There is no dispute that the breakout of the Covid-19 pandemic is an exceptional circumstance, specifically a discrete event as contemplated by the Supreme Court of Canada in R. v. Jordan: R. v Huang, 2021 ONSC 8372: R. v. Obregon-Casteo, 2021 ONSC 1096. This was an unforeseen and dangerous event that merited the shuttering of courtrooms throughout Ontario for extended periods of time. The right to a speedy jury trial could not trump the health and safety issues related to all participants in the judicial process.

47In R. v. Simmons, 2020 ONSC 7209 at paras. 69-73 Justice Nakatsuru referred to the ripple effect of the pandemic on every aspect of the administration of justice:

[69] First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 – 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 – 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.

[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 trials 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 ensued. 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.

[71] Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 – 84.

[72] Similarly, 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.

[73] Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region—which has now suspended jury trials again since October 9, 2020—has recently extended the suspension of jury trials to January 4, 2021.¹ In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.

48In R. v. Allen, 1996 CanLii 4011 (ONCA) Justice Doherty referred to the reality that is a component of reasonableness under s. 11(b) of the Charter as follows:

“…no case is an island to be treated as if it were the only case with a legitimate demand on court resources.”

49The impact of the pandemic in combination with the other discrete events on this application rendered the resultant time to trial unavoidable and reasonable.

CALCULATION OF THE DELAY

50The total time from date of arrest to anticipated conclusion of the second trial date is approximately 48 months or 1440 days. The defence concedes their delay of approximately 94 days in both levels of court. In my view a further 300 days, being the approximate time to the conclusion of the second trial, should be deducted from the total delay. This is based significantly on the fact that counsel for the co-accused was unavailable for the entire time to the second trial date. Those totals leave a net delay of approximately1046 days or 34.38 months. This is slightly over the Jordan ceiling.

RESULT

51Based on the combination of exceptional and discrete circumstances on this application, I am satisfied that the Crown has rebutted the presumption of unreasonableness. The application is dismissed.

52I am grateful to all counsel for their helpful materials and submissions.

O’Marra J.

Footnotes

1. 1Footnote reference preserved from original text.