Overview

[1] Dion Langford applies to the court to stay the prosecution against him on the basis that his right to be tried within a reasonable time, protected by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been infringed.

[2] Mr. Langford was charged on June 25, 2019, with aggravated assault, possession of a weapon, carrying a concealed weapon, and robbery, contrary to the Criminal Code. His trial is to commence on August 8, 2022, and is anticipated to conclude on August 16, 2022. The period of time between when the charges were laid and the expected conclusion of the trial totals 1149 days, or 37 months and 22 days

[3] In R. v. Jordan, 2016 SCC 27, the Supreme Court established presumptive limits of reasonableness to be applied when addressing delay under s. 11(b) of the Charter. For matters that are to be tried in the Superior Court, the presumptive limit is 30 months to the end of the trial. If the case has taken in excess of 30 months, the onus is on the Crown to rebut the presumption of unreasonable delay, failing which the prosecution will be stayed. (Jordan, paras. 46-47).

[4] In order to rebut the presumption of unreasonable delay the Crown must show that periods of delay were caused by (1) defence delay, or (2) exceptional circumstances. Periods of time caused by these events are deducted from the total time the matter has taken. If the deductions bring the delay below 30 months, then the Crown has met its onus of rebutting the presumption of unreasonable delay, although it is still open to an accused person to seek to establish that the remaining delay is unreasonable. In such circumstances, “the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.” The Supreme Court stated, however, that “[w]e expect stays beneath the ceiling to be rare, and limited to clear cases.” (Jordan, para. 48)

[5] In this case I have concluded, first, that the Crown has met its onus and that there should be deductions due to defence delay, and due to exceptional circumstances resulting from the COVID-19 pandemic, which reduce the delay below 30 months.

[6] Second, although the defence took meaningful steps establishing a sustained effort to expedite the proceedings from July 2020 forward, having regard to the overall context, and despite a delay in completing the preliminary inquiry in a more timely way for which the Crown bears responsibility, I am not satisfied that the delay in getting this case to trial is “markedly longer that it reasonably should have” taken, or that this is such a rare, clear case that requires the exceptional step of staying the proceedings.

Legal framework – defence delay and exceptional circumstances

[7] Jordan describes defence delay as having two components: (1) waiver, which must be clear and unequivocal, and (2) delay caused solely by the conduct of the defence. The latter category may include deliberate tactics to delay a case, but will also apply where the defence, has “caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.” (Jordan, para. 64)

[8] The Supreme Court describes exceptional circumstances as events which “lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.” (Jordan, para. 69, emphasis in original)

[9] The Court also placed a burden on the Crown to show that it “took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.” As the Court continued at para. 70 of Jordan:

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

Defence waiver and delay arising from the withdrawal of defence counsel

[10] The first issue arises from delay related to the withdrawal of defence counsel.

[11] The charges were laid in June 2019, and progressed appropriately over the next 6 months. The accused retained counsel, a disclosure meeting was held with the Crown, and disclosure was provided. A Judicial Pre-trial (“JPT”) was held with a judge in the Ontario Court of Justice on December 3, 2019, followed by a court appearance on December 5, 2019, at which time it was expected that dates would be set for a preliminary inquiry.

[12] On December 5, 2019, however, the matter was adjourned to December 12 at the request of the defence. The accused waived that week of delay. The case was adjourned again on December 12 to December 16 as there was confusion when an agent attended and the court was unaware that a JPT had already been conducted.

[13] On December 16, 2019, counsel for the accused appeared again. But, rather than setting dates for a preliminary inquiry, defence counsel indicated he was withdrawing as he was joining Crown’s office and the file needed to be transferred to a new lawyer.

[14] There were then appearances in January and February, 2020, in which the accused appeared on his own behalf while he sought new counsel. On one occasion the accused did not attend at all. On February 26, Mr. Langford asked for 3 more weeks but was given one week until March 4, 2020. On that date an agent appeared and the accused was given three more weeks, until March 25, 2020, to finalize a retainer with a new lawyer.

[15] On March 16, 2020, however, the courts shut down due to the onset of the COVID-19 pandemic. The matter was adjourned without an appearance on March 25 to a date in June 2020.

[16] The Crown submits that the delay following the withdrawal of defense counsel on December 16, 2019, until the onset of the pandemic and the need to adjourn further hearings beginning on March 25, 2020, should either be delay attributed to the defence, or should be regarded as a discrete, exceptional event.

[17] The defence responds that it is not Mr. Langford’s fault that his lawyer left to join the Crown’s office. I agree this is not the fault of accused, but it is not the fault of the Crown either. Further, as the Crown points out, almost 3 months after counsel withdrew, the applicant still did not have new counsel, even though he was able to retain counsel promptly following his arrest in June 2019.

[18] This delay falls into both categories. It may be seen as defence delay as the court and the Crown were ready to proceed, but the defence was not (Jordan, para. 64). It was also an event that was outside the control of the Crown, and the delay was unavoidable as the defence needed time to retain new counsel (Jordan, para. 69). In this sense it is similar to discrete events such as the unexpected unavailability of a participant - a lawyer, judge, juror or witness, for example – who gets sick and the trial is delayed: see, e.g., R. v. Simmons, 2020 ONSC 7209 at para. 71.

[19] I conclude, therefore, that the period from December 16, 2019 to March 25, 2020 should be deducted from the overall delay. Together with the delay waived by the defence between December 5 and December 12, 2019, 107 days should be deducted from the overall delay.

COVID-19 delay commencing March 2020

[20] On Mr. Langford’s first court date following the shut-down of court operations, on March 25, 2020, his case, like all other cases, was automatically adjourned for 10 weeks to June 3, 2020. It was automatically adjourned again on June 3 to August 12, when the matter was adjourned again to October 21, 2020, by which time court operations had restarted.

[21] During this shut-down period the parties were not idle. New defence counsel was retained at the beginning of July, 2020. A meeting was held with the Crown, more disclosure requests were made, and a second JPT was held on October 14, 2020. By the end of September, normal operations were resuming and as of September 28, 2020 the scheduling of out-of-custody trials and preliminary inquiries had resumed.

[22] Following the JPT on October 14, 2020, the parties were ready to set dates for a preliminary inquiry. At the next appearance on October 21, 2020, however, the matter was adjourned for two weeks to arrange an appointment with the trial coordinator in order to obtain dates for the preliminary inquiry. Unfortunately, despite many emails and requests for an appointment with the trial coordinator, it took until December 16 to have a conference call and obtain dates which were confirmed in court the following day, December 17, 2020. June 21, 22 and 23, 2021 were set for the preliminary inquiry.

[23] The COVID-19 pandemic and suspension of court operations clearly falls within the category of exceptional circumstances described in Jordan: R. v. Simmons, at para. 60; R. v. Obregon-Castro, 2021 ONSC 1096, at para. 38; R. v. Drummond, 2020 ONSC 5495 at para. 76; R. v. Gutierrez, 2020 ONSC 6810 at para. 19. That period began in March 2020 and continued until the Crown and the court could take steps to mitigate the time lost. As Moldaver J. said in Jordan, however, at para. 75, “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).”

[24] In Simmons, Nakatsuru J. found that the entire period from when that matter was adjourned in March 2020 to the new trial date in January 2021 should be included as exceptional and be deducted. He rejected the defence position that the period of the discrete event ended in September 2020 when the Superior Court began scheduling new jury trials (Simmons, para. 68).

[25] Nakatsuru J. observed that most trial courts were including time beyond the period of the shut-down as deductible. He noted that the impact of the pandemic has not been limited to simply the suspension of trials for a period of time, but has affected how trials are conducted, scheduling procedures, and created a significant backlog that has had to be addressed while the pandemic lingers (Simmons, paras. 69-70).

[26] In Obregon-Castro, Code J. also deducted the entire period up to the conclusion date of the trial in that case, of December 24, 2021 (para. 42).

[27] In my view, the discrete event of the shut-down of the courts due to the COVID-19 pandemic is an exceptional circumstance that should be applied to reduce the delay in this matter. The period from March 25, 2020 until October 21, 2020, when the parties were in a position to set dates for a preliminary inquiry, as they had been previously on December 16, 2019 but for the withdrawal of counsel, should be deducted. This is a period of 210 days.

[28] This approach is similar to what judges did in R. v. Venne, 2021 ONCJ 80 at para. 34 and R. v. Vorontsov, 2021 ONCJ 169 at para. 61.

[29] I do not agree, however, that all of the 57 days between October 21, 2020, and December 16, 2020, should also be part of the discrete event resulting from the pandemic. The preliminary inquiry could not be scheduled on October 21, 2020, due to a new procedure for scheduling matters caused by the pandemic. Rather than consulting with the trial coordinator on the appearance date by walking down the hall to get dates and then immediately returning to court to confirm them, as had been the pre-pandemic practice, counsel were directed to seek an appointment for a conference call with the trial coordinator to obtain dates, which would then be confirmed at a subsequent appearance.

[30] In this case, the delay of two months to have a call with the trial coordinator to schedule dates is too long. The expectation on October 21, 2020, was that it would take two weeks to do so and return to court to confirm the dates. Periods of 11 and 16 days for this scheduling process to occur in Scarborough, where this case originated, have been recognized as reasonable and deductible discrete events by judges there in other cases: R. v. Ajgirevitch, OCJ, May 19, 2022, unreported, at para. 56; R. v. Farooq, OCJ March 29, 2022, unreported, at paras. 25- 31. In my view, 14 days is a reasonable period to deduct for this scheduling step.

[31] Together with the earlier delay between December 2019 and March 2020 of 107 days, the total deduction becomes 331 days (107+210+14), or about 11 months. This reduces the delay to about 26 and a half months, which I will call the net delay. As this is below 30 months, subject to the Crown showing that it tried to take steps to mitigate the delay, the Crown has met its onus of rebutting the presumption of unreasonable delay.

Did the Crown take reasonable steps to mitigate the delay?

[32] Jordan requires that the Crown show that it took reasonable steps to try to mitigate the delay, even if those steps were not successful. In my view, the evidence establishes that the Crown did take such steps. Following the retaining of new defence counsel, the Crown worked cooperatively to be ready to set a preliminary inquiry date as soon as that was possible in the fall of 2020. In other cases, delay caused by having to repeat disclosure and pre-trial conferences has been treated as defence delay (e.g., R. v. Ajgirevitch at para. 33). I do not do so here, but the steps taken while the court shut-down continued did mitigate the delay.

[33] I also accept that obtaining dates for the preliminary inquiry in June 2021 helped to mitigate delay. The Crown submits this was an early date, and this is supported by evidence, and the observations of Justice R. Wright in R. v. Ajgirevitch at para. 58, which described operations in Scarborough. In short, the backlog due to COVID-19 caused an additional 90 days of delay in scheduling matters, extending target times to trial from nine months prior to the pandemic to twelve months following the resumption of operations in the fall of 2020. Accordingly, I accept that this preliminary inquiry, which began 6 months after being scheduled, did come on quickly.

The delay arising from the preliminary inquiry

[34] The preliminary inquiry commenced on June 21, 2021 and continued on June 22 and 23. However, it was not completed at that time.

[35] Prior to the preliminary inquiry commencing, defence counsel pressed the Crown on whether the Crown would be calling a youth charged with offences arising from the same incident whose case was proceeding separately in Youth Court.

[36] The Crown would not commit to calling the youth. At an earlier point, in the fall of 2020, the Crown said the youth would be under subpoena and the defence could call her if it wished, as defence counsel had indicated that she wished to hear from the youth “co-accused.” Emails a few days prior to the preliminary inquiry between defence counsel and a different Crown subsequently assigned to the matter indicated that the Crown remained undecided about whether to call the youth.

[37] At the second day of the preliminary inquiry, on June 22, 2021, the Crown said it would be calling the youth, and hoped to do so the following day. However, as the youth was facing charges arising from the same event, the need for her to obtain independent legal advice arose which neither the Crown or defence had contemplated earlier. This led to an adjournment of the preliminary inquiry to find one more day when the witness could testify after obtaining legal advice.

[38] The trial coordinator offered dates in September and October 2021, but the defence counsel was not available, although she had other dates available before and after the dates offered. A further meeting was held with the preliminary inquiry judge to see what could be done to find earlier dates, but the next available date for the court was February 25, 2022, and the preliminary inquiry was adjourned to that date when the youth witness testified. The accused was committed for trial a few weeks later on March 21, 2022. By this time, in fact as of December, 2021, the 30 month presumptive ceiling had been exceeded.

[39] The matter was remanded to April 12, 2022 in the Superior Court. The case then moved very quickly and a jury trial is scheduled to commence on August 8 and is expected to take 8 days.

[40] The defence submits that the 8-month delay in the completion of the preliminary inquiry was the fault of the Crown in failing to have anticipated the need for the youth to obtain independent legal advice in advance. However, the defence did not object to at least a short adjournment of the preliminary inquiry for the youth to obtain advice. The problem then became one of finding a new date.

[41] The Crown agreed on this motion that 8 months was far too long to find one additional day, but notes that earlier dates were available to the Crown and the court but not to the defence. This is some indication of reasonable steps taken to try to mitigate the delay. It also constituted dates when the court and the Crown were prepared to proceed but the accused was not (Jordan, para. 64).

[42] The Crown also argues that up to 90 days of this adjournment period should be attributed to COVID-19 due to the backlog in cases. Rather than deducting more time, however, I accept that the scheduling was affected by COVID-19 challenges as reflected in the limited availability of an additional day to complete the preliminary inquiry. This informs the conclusion that reasonable steps were taken in the circumstances. Although they were not successful, the Crown has met its burden.

[43] Accordingly, after deducting periods of delay caused by defence waiver, defence conduct and exceptional circumstances, the net delay is 26 and a half months, which is below the 30-month presumptive ceiling.

Delay below 30 months

[44] The defence nevertheless still argues that the net delay in this case is unreasonable, highlighting the lengthy delay caused by the adjournment of the preliminary inquiry.

[45] Applying the criteria in Jordan (para. 48), counsel for the accused, since her retainer in July 2020, took meaningful steps which demonstrated a sustained effort to move this matter along once court operations resumed in the fall of 2020. However, there was defence waiver and delay before July 2020, and current counsel’s unavailability on dates offered in the fall of 2021 meant that the preliminary inquiry could not resume until February, 2022. On balance, however, I accept that defence counsel took the steps required to make the case that the net delay was unreasonable.

[46] Turning to the question of whether this case has taken “markedly longer than it reasonably should have” to come to trial (Jordan, para. 48), it is significant that this case has been proceeding, largely, during an unprecedented pandemic. Everyone has faced challenges in adjusting to it. I have attributed about 7.5 months of delay to the pandemic, which is the amount of time beyond the 30 months identified as presumptively unreasonable by the Supreme Court in Jordan. The net time to trial of less than 30 months is achieved, therefore, without including a 90-day deduction for the additional backlog arising from the shut-down, nor does it include deductions for the defence waiver and delay arising from the need for Mr. Langford to get new counsel.

[47] Indeed, had the pandemic not intervened, having regard to the delay caused by the need for new counsel, and the pre-pandemic delay of up to nine months to schedule a preliminary inquiry, it is likely that the preliminary inquiry in this matter would not have occurred until at least early 2021. A trial in the Superior Court would likely then have been scheduled for, at the earliest, the fall of 2021, or just under 30 months after the charges were laid. This might have been faster than the net delay period of approximately 26 and a half months.

[48] Taking a “bird’s-eye view of the case” (Jordan, para. 91), I am not satisfied, that this is one of those “rare” and “clear” cases in which the delay is unreasonable and in breach of the Charter right of the accused to a trial within a reasonable time. Even accepting that the defence took meaningful steps to move the matter along, in all the circumstances affecting this case, including the delays addressed above, I cannot conclude that the case has taken “markedly longer” to come to trial than could reasonably be expected.

[49] The application to stay the proceedings is dismissed.

Paul B. Schabas

Released: August 3, 2022

COURT FILE NO.: CR-22-30000226-0000

DATE: 20220803

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DION LANGFORD

Applicant

REASONS FOR JUDGMENT

Schabas J.

Released: August 3, 2022

R. v. Langford, 2022 ONSC 4542

Case Summary

Overview

Legal framework – defence delay and exceptional circumstances

Defence waiver and delay arising from the withdrawal of defence counsel

COVID-19 delay commencing March 2020

Did the Crown take reasonable steps to mitigate the delay?

The delay arising from the preliminary inquiry

Delay below 30 months

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 2