Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
J. Lalande, for the Crown Attorney
-and-
WILLIAM HINTERBERGER
Applicant
R. Addelman and S. Robinson, for the Applicant
HEARD: July 27, 2022
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24 OF THE CHARTER
A.J. GOODMAN, J.
1This is an application brought by the applicant for a stay of proceedings by virtue of a breach of s. 11(b) and pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11 (“Charter”).
2The applicant, William Hinterberger, (“Hinterberger”) argues that his constitutional rights have been infringed due to the inordinate delay in proceeding with this trial.
Background and Issue:
3The applicant was charged on September 30, 2019. The trial is slated to commence on September 19, 2022 and is expected to continue until October 7, 2022.
4During the course of the hearing, the parties focussed on three distinct areas raised by the Crown attorney. Specifically, these include a delay due to the actions of the defence, and exceptional circumstances involving discrete events related to delayed disclosure and the COVID-19 pandemic.
Positions of the Parties:
5The applicant submits that his s. 11(b) rights have been infringed and that he is entitled to an appropriate remedy.
6The parties agree that the total delay from the charge date to the completion of trial is 36 months and eight days. The applicant submits that when eliminating some period of time attributable to the defence, there is at least 32 to 34 months of delay, which is above the presumptive ceiling.
7The Crown disagrees with some of the applicant’s calculations of net delay in this case. The Crown argues that a discrete exceptional event includes the COVID-19 pandemic with the cessation of proceedings and trials in Ottawa as well as unique disclosure issues. With this time deduced, the remaining period of delay is under 24 months, well short of the presumptive ceiling.
8In oral submissions, the Crown attorney limited his argument to the three aforementioned areas without any reference to the issue of complexity.
9The Crown submits that the applicant has not met his burden of demonstrating a violation of his rights under s. 11(b) of the Charter because the net delay is under the 30 month presumptive ceiling.
Legal Principles:
10Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights to security of the person, liberty and a fair trial. In the seminal case of R. v. Jordan, 2016 SCC 7, [2016] 1 S.C.R. 631, the Supreme Court of Canada reworked the entire rubric of delay and effectively overruled the previous analysis and procedure in R .v Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.
11The right to a speedy trial guaranteed by s. 11(b) of the Charter reflects the principle that “[t]imely justice is one of the hallmarks of a free and democratic society”: Jordan, at para. 1. Section 11(b) is also designed to protect the interests of society in the expeditious resolution of criminal proceedings.
12In Jordan, the Supreme Court noted at para. 38, that the pre-existing framework had become “too unpredictable, too confusing, and too complex,” and had “become a burden on already over-burdened trial courts.” According to the Supreme Court, a pervasive “culture of complacency” fostered delay throughout the system: at para. 4.
13The Supreme Court set a presumptive ceiling of 30 months for cases proceeding in the superior courts.
14In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next stage is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.
15If the net delay then exceeds the ceilings outlined in Jordan (18 months for the provincial court and 30 months for superior court cases), it is presumptively unreasonable.
16Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two components: “(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, at para. 69.
17Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.
18If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable. If the Crown is not able to rebut the presumption, the charges against the accused will be stayed: Jordan, at paras. 37-39.
19On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.
ANALYSIS:
20A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance of a stay of proceedings in criminal matters, appellate courts remind trial judges to ensure that such a remedy is used only as a last resort: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at p. 466. It is a right that is not to be taken lightly. A stay of proceedings has substantial ramifications not only for the applicants, but to the justice system as a whole when the state is found to have breached an accused’s fundamental Charter rights.
21As mentioned, the Court of Appeal in Coulter, at paras. 34-40, clarified the following steps that the court is required to analyze for s. 11(b) motions:
a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;
b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
c) Compare the Net Delay to the presumptive ceiling;
d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
e) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
f) 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;
g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
i. Calculating the Total Delay Period
22The starting point is calculating the Total Delay; in this case, the time between the charge laid on September 30, 2019 and the anticipated end of trial currently set for October 7, 2022. Here, the total delay is 36 months and eight days.
23The next step is to subtract defence delay. It is now well-established that every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution as the evidence in the cases against them grows stale over time. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole”: Jordan, at para. 21.
24Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction subtracted from the total delay. Because the Charter governs state conduct, the conduct of the accused person or defence counsel that delays the trial does not count against the presumptive ceilings: Jordan, at paras. 21, 49, 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 1, 32-33.
25Defence caused delay comprises those situations where the accused’s acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. In situations where the Crown and the court are ready to proceed, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.
26Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” Such determinations are “highly discretionary”: Jordan, at paras. 60-66; Cody, at paras. 28-31.
27Determining whether a step taken by the defence is legitimate requires considerations of both substance and procedure. The decision to take a step as well as the manner in which it is conducted may attract scrutiny. Time needed for trial preparation will be classified as inherent delay within the Jordan framework. Even where there is some merit, “a defence action may be deemed not legitimate […] if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay”: Cody, at paras. 31-32. Such a finding need not amount to professional or ethical misconduct. Instead, the assessment of legitimacy requires that all justice system participants advance an accused’s right to a trial within a reasonable time: Cody, at paras. 30-36.
Defence Waiver and Defence Conduct Amounting to Delay:
28In R. v. Godin, 2009 SCC 26, at para. 2, the Supreme Court held that “s. 11(b) does not require defence counsel to hold themselves in a state of perpetual availability”, thus allowing leeway for refusal of available dates by defence counsel. As the ceilings established in Jordan are intended as presumptive statements as to reasonable delays for which the state is responsible, actions that are not properly attributable to the state, such as those attributable to defence counsel or to the accused person, are excluded from the total calculation of delay.
29The amount of delay that will be deducted for defence unavailability will depend on the circumstances. A contextual approach should be applied. Where a date is available to the Crown and court, but refused by defence counsel, aside from time required to legitimately respond to the charges, this is defence-caused delay: See R. v. Boulanger, 2022 SCC 2, R. v. Thanabalasingham, 2020 SCC 18 at para. 9, R. v. Williamson, 2016 SCC 28 at paras. 21-22, R. v. Mallozzi, 2017 ONCA 644 at paras. 32-38, 41, leave to appeal to the S.C.C. refused (without reasons), [2017] S.C.C.A. No. 392, R. v. Cowell, 2019 ONCA 972 at para. 32, R. v. Albinowski, 2018 ONCA 1084 at paras. 32, 37-40, 49.
30In this case, the Crown attorney raises a specific period of delay from January 25, 2021 to May 12, 2021, where the defence was unavailable. Further, during this period, the defence re-elected trial in the Superior Court, which, the Crown alleges, caused further delay. In oral argument, counsel for the applicant concedes some period of delay due to defence conduct.
31On October 22, 2020, the parties secured February 16 and 17, 2021 for pretrial motions as well as three weeks beginning on May 10, 2021 for an Ontario Court of Justice (“OCJ”) trial. A review of the trial-setting form shows that the trial coordinator also offered three weeks for trial: January 25, February 1 and February 8, 2021. The Crown and Court were available. Defence counsel was not.
32Moreover, at that point in time, the parties were scheduling a three-week trial with several pretrial motions in the OCJ. It was only in March, 2021 that defence re-elected to the Superior Court with a one and a half day preliminary inquiry - well within the applicant’s rights. However, if this decision was made earlier in the process, I am persuaded by the Crown that the parties would have been able to find dates closer-in-time. The Crown attorney wrote to defence counsel on April 6, 2021 to indicate that it had offered to produce the witnesses for a discovery to avoid the wait for a preliminary hearing, which would have saved three months of time. Defence counsel declined to participate in discovery hearing.
33From my review of the transcripts and materials filed, I agree entirely with the Crown that defence counsel’s unavailability, combined with the re-election to the Superior Court at the 11th hour created a delay attributable to the defence and is defence-caused delay: See R. v. Lai, 2021 SCC 52, (2021) 407 C.C.C. (3d) 1.
34Therefore, I find that the period from January 25, 2021 to May 12, 2021, a period of three months and 18 days is defence delay. This leaves a net delay of 32 months and 20 days. This time period is above the 30-month ceiling.
ii. Exceptional Circumstances:
35In instances where, after deducting defence-caused delay and waiver, the time period remains above the 30 month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “lie outside the Crown’s control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.” The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Jordan, at paras. 69-71; Cody, at paras. 44-46, 48, 54; and R. v. St. Amand, 2017 ONCA 913, 385 C.C.C. (3d) 226, at paras. 81-82.
36Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling: Jordan, at para. 51. When determining how to allocate delay during trial, courts will distinguish a reasonable period of delay to deal with a discrete event, which may be subtracted from the net delay, from systemic or institutional delay which causes further delay. Delay caused by a shortage of judicial resources is not deductible from total delay.
37As discussed, discrete events are reasonably unforeseen or are reasonably unavoidable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. It will be for the trial judge, relying on his/her good sense and experience, to determine whether a particular event is properly determined to be exceptional: Jordan, at paras. 73-74; Cody, at paras. 46, 48, 58-59, 163-165.
Exceptional Circumstances – Delayed Disclosure
38There is no dispute that there was a delay in providing disclosure to the defense. Prior to the applicant’s initial arrest, Sergeant Clement of the Ottawa Police Service notified the Department of Justice (DOJ) and Canadian Security and Intelligence Service (CSIS) (“federal authorities”) that the investigation against the applicant contained “sensitive information” as defined in s. 38 of the Canada Evidence Act, R.S.C. 1985 c. C-5. (“CEA”).
39The Crown says that this period of delay (from September 30, 2019 to April 15, 2020) is a key segment in the analysis and should be understood in context. First, there was a legal obligation for police to advise the federal authorities of the disclosure under the Evidence Act and to comply with their direction to review the disclosure. Unfortunately, once the information was transferred into the possession of federal agencies for review, the prosecutor and the police had limited control over the pace and timing of the disclosure. However, it is submitted that a review of the materials demonstrates that the assigned Crown in combination with the investigators, made reasonable and thorough efforts to ensure that the disclosure would be prepared as efficiently as possible. This includes a period of six days where the Crown and investigators reviewed and redacted materials.
40Further, the Crown submits that this six and a half months of delay was impacted by the COVID-19 pandemic, which slowed down the efforts of the federal agencies reviewing the disclosure. The intricate review process conducted by the federal authorities, in combination with the volume of disclosure and some understandable delays due to COVID-19 shows that a significant period of time was required to complete the redactions.
41The Crown says that the delay resulting from the in-depth review required at multiple levels, including the Crown and the federal authorities, is a discrete event. The efforts by the police and Crown began at the earliest opportunity. While there was no avoiding the delay due to the volume of disclosure and additional review of it by various federal agencies, it was nonetheless handled in a timely fashion. The Crown admits that while the disclosure in this case took longer than it would in the usual course, it is justified.
42Respectfully, I must disagree with the Crown’s assessment. The lethargic pace at which the federal agencies dealt with this disclosure matter is disconcerting. It seems to me that the federal agencies treated the repeated requests by the police agency for vetting as a mere inconvenience. I see no reason why vetting and the necessary redactions could not have been completed within a reasonable timeframe. I am not persuaded in the least with the explanations provided in the affidavit filed from “Witness A”.
43The Crown refers to the case of R. v. Huang, 2021 ONSC 8372, which I distinguish on the facts. Not only did Huang concern a warrant obtained under the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 which involved a highly complex review process, but the vetting of disclosure by federal authorities was not the “discrete event” under consideration. Rather, the discrete event was litigation of national security privilege under s. 38.04(2)(c) of the CEA, which occurred after disclosure was vetted and provided: at para. 170.
44Further the COVID-19 pandemic does not offer any justification for the delay in disclosure. To grant deduction due to COVID-19, the Crown must establish a “causal link” between the pandemic and the delay sought to be deducted: R. v. Bui, 2021 ONCJ 379 at paras. 26-27, citing R. v. Greenridge, 2021 ONCJ 57. In Bui, for example, Block J. rejected COVID-19 as an excuse, finding that the delay was simply caused by the lack of diligence in providing disclosure: at para. 29.
There is no satisfactory explanation for the 15-month delay in providing disclosure central to the only contested issue in this matter. There is no evidence that the pandemic prevented the Crown from acquiring, vetting, and providing the requested material. The Crown had a lengthy period of time in which court-attendance obligations were sharply reduced. If the disclosure process was performed with no urgency after February 27, 2020, the inescapable conclusion is that it was entirely neglected by the Crown in the period between July 15, 2020 and March 19, 2021. In this case trial delay has had little or nothing to do with the pandemic.
45As a general proposition, an accused is entitled to review sufficient disclosure before a scheduled appearance, such as a judicial pre-trial (“JPT”): R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303, at paras. 12-15. Where disclosure is made so late that it limits review before an appearance, the accused is not obliged to move a care forward: at para. 13. To their credit, the defence was prepared to advance this case to a series of JPTs while important disclosure remained outstanding, including the complainant’s audio video statements and the Information to Obtain the search warrant for the applicant’s home.
46I find that, despite best efforts made by the Crown and the investigating officer, I am persuaded that any delay caused by a third-party government agency in the circumstance of this particular case ought not to accrue to benefit of the prosecution. Indeed, what message would that send to any third party such as in the case at bar - about acting in a timely, prudent and reasonable manner in relation to such important requests from police agencies?
47In this case, I find that the delayed and incremental disclosure in this case is not an exceptional circumstance for the purposes of the s. 11(b) analysis.
Exceptional Circumstances – COVID-19 Pandemic
48Generally, the COVID-19 pandemic is the quintessential discrete exceptional circumstance as defined in Jordan. It could not be foreseen or avoided, and nothing could be done to reasonably remedy, or mitigate the ongoing court delays arising out of this crisis.
49I take judicial notice of the pandemic and its ongoing effects on the justice system, as well as the Government’s ongoing response, pursuant to ss. 17 and 22(1) of the CEA, ss. 17, 22(1).
50Accordingly, it is beyond question that the pandemic creates an unfortunate situation whereby trials are delayed. During the time that jury trials are suspended, any delay may fall under a discrete event. Various Ontario courts have determined that he whole of the delay to the next scheduled trial date is to be deducted where that period can be said to have been entirely caused by the exceptional circumstance of the pandemic: R. v. Drummond, 2020 ONSC 5495, R. v. Khattra, 2020 ONSC 7894 at paras. 78-91, R. v. Ali, 2021 ONSC 1230, at paras. 43, 63, R. v. Truong, 2020 ONCJ 613, R. v. Stack, 2020 ONCJ 544, R. v. Walker, 2020 ONSC 8153, at paras. 33-51, R. v. G.R., 2020 ONCJ 578, R. v. Pinkowski, 2021 ONCJ 35, at paras. 21-25, R. v. Buoc, 2022 ONSC 1067, at paras. 35-39, R. v. Brooks, [2022] ONSC 115, at paras. 27-29.
51The Crown submits that the delays caused to this matter by the COVID-19 pandemic are easily identifiable. After the first wave of disclosure was issued on April 15, 2020, the parties were able to move the matter forward, subject to review of the disclosure by defence counsel. However, as of April 1, 2020, the OCJ was unable to process appearances due to the pandemic and all matters were adjourned until July 2020. As a result, the parties were unable to schedule a JPT in the normal course and some delay ensued. The Crown says that the parties could have progressed to the pre-trial stage much more quickly and obtained a trial date sooner. A significant portion of this delay should be deducted as a discrete event.
52The applicant submits that while the COVID-19 pandemic is certainly an extraordinary event from a global perspective and was admittedly a major source of institutional backlogs in the Canadian criminal justice system, this is not to say that the pandemic is necessarily and automatically a deductible “discrete event” for the purposes of the Jordan calculus in every case. The case law is clear that COVID-19 does not give the Crown a free pass from s.11(b) challenges. Instead, a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it.
53Indeed, the applicant tacitly admits that the pandemic is an exceptional circumstance. However, the applicant does not attribute much, if any, of the period of delay to this issue. Instead, while acknowledging that normally an exceptional circumstance may arise as a result of the pandemic, this case moved along in the OCJ, even with the court having postponed trials until the resumption of hearings. Thus, the applicant submits that the period of time proffered by the Crown does not apply in this particular case. As COVID-19 had nothing to do with the delays, no “discrete event” time deduction should apply. The applicant advances several cases in support of his position.
54I agree with the applicant that the Crown bears the onus of establishing that the delay that it seeks to have deducted from the net delay was actually caused by the pandemic. And while I accept the basic legal principles as provided in the cases proffered by the applicant, I either distinguish or decline to follow the conclusions in some of those cases as applicable to the matter before me.
55In R. v. Greenridge, 2021 ONCJ 57, Monahan J. declined to deduct COVID-19 as a discrete event after finding it had no “direct link” to the delay: at paras. 27-28. However, when trial dates were set in December 2019, the earliest available dates meant the trial would be completed in February 2021 and exceeded the OCJ’s 18 month presumptive ceiling.
56Since trial dates were scheduled pre-pandemic, the suspension of court operations and ensuing backlog did not prevent the Crown from securing earlier hearing dates. With or without COVID-19, Greenridge would have exceeded the presumptive ceiling. In the present case, the OCJ’s pandemic backlog directly impeded the parties’ ability to schedule hearing and trial dates and move the matter forward. There is a causal link between the pandemic and the present case which was not found in Greenridge.
57In R. v. Schardt, 2021 ONSC 3143, Nieckarz J. refused to deduct any period of time during which in-person proceedings or jury trials were suspended due to COVID-19. After deductions for defence delay, Nieckarz J. determined that there was a net delay of 36 months on the first count and 33½ months on the two remaining counts.
58Dates for the pre-trial applications and jury trial were already set pre-pandemic, and while the accused agreed to conduct the applications by Zoom given the suspensions of court operations, it was the Crown who failed to take necessary steps to allow it to proceed. Further, it was the Crown’s delay in consenting to the defence’s request for a severance which had an “untold impact” on delaying the case, not the suspension of jury trials or backlogs in scheduling: at para. 70. Unlike Schardt, the prosecution in this case was prepared to schedule and proceed with a series of JPTs. I am persuaded that, but for the backlogs in scheduling, the matter would have moved forward sooner.
59In R. v. Delaney, 2021 ONCJ 467, Joubert J. declined to deduct COVID-19 as a discrete event, finding that the real and only cause for delay was outstanding disclosure. Though the trial scheduled to proceed on May 11, 2020 was adjourned in accordance with pandemic protocol, disclosure issues had been ongoing since before the pandemic started, and material disclosure was still outstanding when the second trial date approached on March 8, 2021, resulting in an adjournment: at para. 52. While Joubert J. concluded that COVID-19 was not the ultimate cause of delay.
60COVID-19 directly prevented the parties from moving forward in the present case. Notwithstanding delayed disclosure from federal authorities, the Crown did not continually fail in providing timely disclosure as it did in Delaney. The parties were ready to proceed from September 24, 2020 to October 30, 2020, but backlogs prevented them from doing so.
61In any event, there is some merit to the applicant’s arguments. JPTs were set during the proverbial shutdown of the court. Some disclosure was delayed. After the OCJ began to address matters in early July, cases were prioritized by beginning with in-custody matters. It also bears repeating that reliance on the pandemic as a discrete exceptional circumstance requires, as with any exceptional event, that the Crown have taken reasonable steps to mitigate the delay caused by it.
62That being said, the Crown is not obligated to prioritize one individual case over another where thousands of matters were adjourned and await trial: Doherty J.A. stated in R. v. Allen, 1996 4011 (ON CA), [1996] 1 C.R. (5th) 347, 110 C.C.C. (3d) 331, at p. 348, ““no case is an island to be treated as if it were the only case with a legitimate demand on court resources.” After the OCJ began to address matters in early July 2020, the Crown made prompt resort to remote case management processes to get the matter back on track and rescheduled. I have considered counsel’s submissions and the fact that, despite the pandemic, counsel made efforts to have several JPTs conducted during the early stages of the pandemic. In fact, four JPTs were scheduled between June 25, 2020 and September 11, 2020.
63In any event, in R. v. Robinson, 2021 ONSC 2445 at para. 102, Akhtar J. recognized the difficulty in calculating the delay caused by the COVID-19 pandemic in addressing s. 11(b) of the Charter:
It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months is a more specific time period, it cannot be disputed that there was a "knock on" effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.
64I agree with Ahktar J.’s overall assessment. The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances.
65For the purpose of this application, I reiterate my holding on this particular issue as outlined in R. v. Belzil, 2021 ONSC 781. Further, I adopt Nakatsuru J.’s detailed discussion and sage analysis on this very issue in the case of R. v. Simmons, 2020 ONSC 7209 at paras. 67 - 76.
66Thus, I am not persuaded that the entire period of time - six and a quarter months, as alleged by the Crown, is to be attributable to the COVID-19 pandemic and ought to be deducted due to the suspension of trials and hearings in the OCJ.
67As such, I have only deducted specific segments of time due to delay attributable to COVID-19, as follows: First, the period from April 15, 2020, to June 10, 2020, due to the initial shutdown of the courts according to the provincial directive, to (after having received the “first wave” of disclosure) the setting of the date for the first JPT (for June 25, 2020). Second, from September 24, 2020 to October 30, 2020, when the parties were ready to proceed but the OCJ was in the process of setting dates, with a backlog of 80 criminal cases directly attributable and being prioritized due to the pandemic.
68For the three months and four day period in 2020, the COVID-19 pandemic precluded the parties from setting realistic hearing and/or trial dates. While attempts were made to set dates, it is beyond dispute that this situation was completely unforeseeable and could not be remedied by either of the parties.
Summary of Delay in the Present Case
69The total delay is 36 months and eight days from the charge or initial information being sworn to the proposed end of the trial. Further, subtract three months and 18 days for defence caused-delay to achieve the net delay. From that amount, subtract a discrete event of three months and four days due to the COVID-19 pandemic with the reality of the ubiquitous cessation of trials and proceedings in the OCJ in Ottawa. The remaining delay is 29½ months, which is just below the 30-month threshold in Jordan.
Delay Below the Presumptive Ceiling – The Applicant has not met his Onus
70Where the Jordan threshold is not exceeded, stays of proceeding will be “rare” and “limited to clear cases.” A stay will only be imposed if the accused establishes that the defence took “meaningful steps that demonstrate a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. “Meaningful steps” means more than token efforts, such as simply putting on the record that the defence had earlier dates. The defence must be proactive and must cooperate with the Crown and the Court to avoid delays and put the Crown on timely notice when issues arise that may delay the trial: Jordan, at paras. 48, 82-91.
71Despite the very able submissions of counsel, the record is principally silent on positive measures undertaken by the applicant to expedite the proceedings in this court to the pace he now demands. At the 11th hour, the applicant exercised his right to re-elect to judge and jury. Having moved the matter to the Superior Court, this enhanced the time required for the matter to proceed to trial. In any event, the defence did not press this issue in argument and has not met his onus to persuade me otherwise.
CONCLUSION:
72Having regard to the overall s. 11(b) and Jordan analysis, I conclude that there was a total delay of 36 months and eight days.
73The Net Delay is reflected when considering the period of January 25, 2021 to May 12, 2021 due to defence-caused delay. The further timeframe of April 15, 2020 to June 10, 2020 and September 24, 2020 to October 30, 2020 is captured by an exceptional circumstance due to the discrete event of the pandemic and the cessation of hearings or trials in the OCJ in Ottawa.
74The Remaining Delay of 29½ months does not exceed the Jordan guidelines for a jury trial in the Superior Court and is presumptively reasonable.
75The applicant’s rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have not been breached. The application is dismissed.
A.J. GOODMAN J.
Released: August 25, 2022
COURT FILE NO.: 19-18142
DATE: 2022-08-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
WILLIAM HINTERBERGER
Applicant
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
A. J. Goodman J.
DATED: August 25, 2022
