COURT FILE NO.: CR-21-70000436
DATE: 20221110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOHN FISHER
Andrew Cox, for the Crown
Elham Ellen Jamshidi, for John Fisher HEARD: September 12, 2022
Ruling on S. 11 (b) APPLICATION
P.J. Monahan J.
Introduction
[1] John Fisher is charged with aggravated assault, assault with a weapon, carrying a concealed weapon, and possession of a weapon for a dangerous purpose. The Crown alleges that Mr. Fisher stabbed Joshua Maier-McKenzie in the basement of a sports bar in Toronto on February 17, 2019. Mr. Fisher submits that his right to be tried within a reasonable time guaranteed by s. 11 (b) of the Canadian Charter of Rights and Freedoms[^1] has been violated and, accordingly, that these proceedings should be stayed pursuant to s. 24 (1) of the Charter.
[2] This trial was completed on September 22, 2022, which is approximately 43 months since the laying of the information on February 20, 2019. Therefore, the total delay exceeds the presumptive 30-month ceiling for bringing noncomplex matters to the end of trial established by the Supreme Court of Canada in R. v. Jordan.[^2]
[3] The Crown does not allege that any of the delay in bringing this matter to trial is attributable to the Applicant. However, the Crown argues that there are two exceptional circumstances which, when properly factored into the analysis, bring the remaining delay in this case below the 30-month presumptive threshold. These exceptional circumstances are:
a. the COVID-19 pandemic, which the Crown argues delayed the preliminary inquiry by approximately 13.5 months; and,
b. an illness experienced by the assigned Crown in the spring of 2022 which caused the trial to be postponed by a further 2 months.
[4] Although Mr. Fisher agrees that the COVID-19 pandemic is an exceptional circumstance that is properly factored into the Jordan framework, he argues that only 5.5 months of the delay should be deducted for this reason. He further argues that the illness of the assigned Crown does not justify any further reduction in the total delay. Thus, the remaining delay significantly exceeds the Jordan 30-month presumptive ceiling, and the proceeding should be stayed.
[5] At the conclusion of oral argument, I dismissed the application with reasons to follow. These are my reasons.
Procedural History
[6] The procedural history of this matter is set out in considerable detail in the written materials submitted by the parties, which will not be repeated here. The key dates, for the purposes of this application, are as follows:
a. February 19, 2019: the Applicant is arrested and charged
b. February 20, 2019: the information is sworn and the Applicant makes his first appearance in bail court
c. June 5, 2019: substantial disclosure is provided by the Crown, although additional disclosure remains outstanding
d. July 3, 2019: a judicial pre-trial (JPT) is conducted in the Ontario Court of Justice and a preliminary inquiry of 7 days is set for June 1-9, 2020
e. March 15, 2020: the OCJ shut down due to COVID-19 emergency
f. July 6, 2020: the OCJ announces phased reopening of courts, with priority being given to in-custody matters
g. August 12, 2020: the OCJ announces that out-of-custody hearings that have been adjourned due to COVID-19 may be rescheduled commencing August 17, 2020. Matters are to be rescheduled in accordance with the date of the adjournment, beginning with those matters adjourned between March 16 and April 3, 2020. Hearings that were adjourned between May 19 and June 5, 2020 (the category applicable to Mr. Fisher’s preliminary inquiry, which had been scheduled to commence June 1, 2020) could only be rescheduled commencing September 8, 2020
h. September 1, 2020: the Crown emails the Applicant’s counsel in advance of the September 8, 2020 rescheduling window for the preliminary inquiry, seeking dates upon which counsel is available
i. September 15, 2020: the Applicant’s counsel indicates that she is available for a 5-day in-person preliminary inquiry between September 15 and November 30, 2020; between January 5 and April 1, 2021; and from June 1, 2021 onward. The Crown advises that he is only available commencing April 1, 2021
j. September 15, 2021: the trial coordinator confirms June 7-11, 2021 as the new preliminary inquiry dates
k. June 7-10, 2021: the preliminary inquiry is held in the OCJ; Chisvin J. reserves judgment on committal
l. July 19, 2021: Chisvin J. orders the Applicant’s committal
m. August 30, 2021: Applicant makes his first Superior Court of Justice appearance
n. September 17, 2021: an SCJ JPT takes place before Justice Breese Davies
o. September 24, 2021: a 3-week Judge and jury trial is scheduled, commencing March 13, 2022
p. December 17, 2021 to February 28, 2022: New jury trials are suspended due to resurgence of COVID-19
q. March 8, 2022 to May 18, 2022: parties correspond about bringing the matter forward to have the trial heard between July 4-15, 2022. Both Crown and Defence counsel are available. However, assigned Crown falls ill with a heart illness and is unable to accept the dates
r. July 15, 2022: the date the trial would have concluded, had the Crown not fallen ill
s. September 12-23, 2022: the SCJ trial is held
The Jordan Framework
[7] In Jordan, the Supreme Court of Canada provided presumptive time periods within which an accused must be brought to trial: 18 months for cases in provincial courts and 30 months for cases tried in superior courts. In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases.[^3]
[8] In instances where, after having deducted defence-caused delay, 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 (i) they are reasonably unforeseen or reasonably unavoidable, and (ii) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem were it possible to have done so.[^4]
[9] Discrete, exceptional events such as family or medical emergencies will qualify as exceptional circumstances.[^5] 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. Further, it is for the trial judge to determine what amount of the delay arising from the exceptional circumstance ought to be deducted.
COVID-19 is a Exceptional Circumstance for Jordan Purposes
[10] Both parties agree that the COVID-19 pandemic is an exceptional circumstance which must be factored into the calculation of the net or remaining delay in this case. Where they differ is on the appropriate period of time that should be deducted on account of the pandemic.
[11] The Crown argues that the 13.5-month period between June 4, 2020 and July 19, 2021 should be deducted as a discrete circumstance related to the COVID-19 pandemic. The basis for this deduction is that the Applicant’s preliminary inquiry had originally been scheduled to commence on June 1, 2020 and would have likely concluded by June 4, 2020. However, because of the pandemic, the preliminary inquiry did not proceed until June 2021, and the decision on committal was not delivered until July 19, 2021.
[12] The Crown further argues that it did everything reasonable to mitigate the delay and to reschedule the preliminary inquiry as soon as reasonably possible. However, by September 8, 2020 (when the OCJ rescheduling window for this matter became open), the Crown was not available until April 2021 and defence counsel was not available between April and June 2021, which meant that the preliminary inquiry did not proceed until June 2021. Therefore, the Crown argues that the entire period between the originally anticipated end date of the preliminary inquiry (June 4, 2020) and the actual end date (July 19, 2021) should be deducted from the Jordan delay calculation.
[13] The Crown further argues that the scheduling of the trial in the Superior Court of Justice was further delayed on account of a pandemic-related backlog of cases in this court, although the Crown does not specify the precise period of time which should be deducted on account of SCJ backlog.
[14] The Applicant agrees that, although the COVID-19 pandemic is an exceptional event, justifying some deduction in calculating the net or remaining delay for Jordan purposes, the Crown failed to make the rescheduling of the preliminary inquiry a priority. The Applicant points out that on September 15, 2020, his counsel advised the Crown that she was available for a five-day preliminary inquiry anytime between September 15, 2020 and November 30, 2020, and again from January 5, 2021 until April 1, 2021. However, Crown counsel advised that he was not available until April 1, 2021, a period of approximately seven months. Had the Crown given this matter the priority it deserves, the preliminary inquiry could have been concluded prior to April 1, 2021. Therefore, the Applicant argues that the appropriate deduction on account of the rescheduling of the preliminary inquiry is the 5.5-month period between March 30, 2020 (when proceedings in the Ontario courts were suspended due to COVID-19) and September 15, 2020, the point at which the Applicant’s counsel was available to proceed with the preliminary inquiry. The Applicant also disagrees with the Crown’s position that any further deduction is warranted on account of the SCJ backlog.
Appropriate Deduction for COVID-19 in the circumstances
[15] Two issues fall to be determined in calculating the appropriate deduction on account of the COVID-19 pandemic:
a. what is the appropriate deduction for the delay associated with the rescheduling of the preliminary inquiry; and
b. whether, and to what extent, any further deduction should be made on account of account of the SCJ backlog.
[16] In considering the first issue, I begin with the by-now axiomatic observation that the COVID-19 pandemic has had a “system-wide impact of unprecedented proportions, never seen before in our lifetime.”[^6] COVID-19 forced the adjournment or postponement of thousands of proceedings, both in the OCJ as well as the SCJ, creating large backlogs of cases in both courts which are still being processed through the system.[^7]
[17] This leads to a second, related observation, namely, that in determining the COVID-related delay in individual cases, the analysis must take into account these system-wide impacts. Many thousands of proceedings have been delayed on account of the pandemic, all of which must be rescheduled in an effort to have them completed within the Jordan presumptive guidelines. No single case is entitled to take priority over all others, without regard to the legitimate needs of other accused who are also facing delays in having their matters addressed. The comments of Doherty J.A. in R. v. Allen, although made in another context, over a quarter-century ago, are equally applicable in assessing the appropriate response to the COVID-19 pandemic:[^8]
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[18] These comments are particularly relevant in considering the appropriate deduction for the delay associated with the rescheduling of the preliminary inquiry in this case.
[19] The Applicant’s preliminary inquiry was adjourned at the height of the COVID-19 pandemic, along with thousands of other matters over the course of several months. By the summer of 2020, the OCJ had established a priority order and timeline for rescheduling the thousands of matters that had been adjourned due to COVID-19. Because out-of-custody matters ranked lower on the OCJ priority list, by the time that Mr. Fisher’s preliminary inquiry could be rescheduled on September 8, 2020, a significant number of other proceedings had already been rescheduled. Moreover, the OCJ had not adjourned matters set prior to the pandemic for October 2020 onwards. In essence, the OCJ was responding to a significant backlog while still attempting to keep its currently scheduled matters on track.
[20] It is also significant that the assigned Crown took active steps to attempt to reschedule the preliminary inquiry as soon as reasonably possible. On September 1, 2020, in advance of the OCJ window for rescheduling Mr. Fisher’s preliminary inquiry, the Crown emailed to counsel for Mr. Fisher as follows:
I am trying to get some of my more serious matters down that were adjourned during Covid. As per the OCJ’s notice to the public, could you please fill out the attached form and send it to the trial coordinators. We should be able to then book a prelim for Mr. Fisher in short order.
[21] On September 15, 2020, both counsel provided the trial coordinator with their availability for the five-day preliminary inquiry. Because the assigned Crown was not available until April 1, 2021, and Mr. Fisher’s counsel was not available in April or May 2021, the preliminary inquiry was scheduled and actually held in early June 2021.
[22] Mr. Fisher argues that the delay in scheduling Mr. Fisher’s preliminary inquiry was attributable to the fact that the Crown was not giving sufficient priority to the matter. I do not believe this criticism to be fair or accurate. By September 2020, a significant number of adjourned proceedings had already been rescheduled. The Crown could not be expected to put those matters aside and advance Mr. Fisher’s preliminary inquiry to the front of the queue. In fact, it would have been wrong to have done so precisely for the reason articulated by Doherty J.A. in Allen, to the effect that, “no case is an island to be treated as if it were the only case with a legitimate demand on court resources.”
[23] In my view, the Crown acted diligently in attempting to reschedule the preliminary inquiry, while also taking into account the legitimate needs of other accused to have their matters heard in a timely way. It is also significant that the preliminary inquiry was expected to require five days, which is a significant block of time for both the court and counsel. It is hardly surprising or unusual that the Crown only had availability commencing April 1, 2021.
[24] On this basis, I find that the 12-month delay in commencing the preliminary inquiry (i.e., from June 2020 until June 2021) is attributable to the COVID-19 pandemic rather than a lack of diligence or appropriate prioritization on the part of the Crown. This 12-month period should therefore be deducted as a discrete circumstance related to the COVID-19 pandemic for purposes of the Jordan calculation.
[25] At the same time, I would not accede to the Crown’s argument that the period of time between the end of the preliminary inquiry’s evidence phase and the decision on committal was a delay attributable to the pandemic. Regardless of when the preliminary inquiry was held, the presiding judge would have needed the same amount of time to consider his/her decision. Therefore, it would not be appropriate to deduct the period of time between June 10, 2021 and July 19, 2021, while the parties were awaiting the preliminary inquiry judge’s decision on committal, from the Jordan delay calculation.
[26] I turn now to the second issue identified above, namely, whether any additional deduction from the Jordan calculation should be made on account of the SCJ backlog.
[27] Once the matter reached the SCJ in August 2021, the Crown arranged for the scheduling of a JPT before the end of September 2021. The earliest available trial dates for the estimated three-week judge and jury trial were in March 2023. At the same time, the matter was added to the Downtown Toronto Crown Attorney’s priority list in order to canvas the possibility of earlier trial dates becoming available.
[28] Unfortunately, by early December 2021, the highly transmissible Omicron COVID-19 variant had reached Ontario. Because of the public health situation, on December 17, 2021, the SCJ announced that it would not commence any new jury trials in any court location until the end of February 2022.
[29] I regard the approximately 2.5-month period from mid-December 2021 until the end of February 2022, during which time no new jury trials could commence in Ontario, as a discrete circumstance directly attributable to the COVID-19 pandemic. Moreover, there were no actions that the Crown could have taken to mitigate this delay. This 2.5-month period should therefore be deducted in calculating the remaining delay in this matter.
[30] In the result, I would deduct a total of 14.5 months from the total delay of 43 months, leaving a remaining delay of approximately 28.5 months.
Deduction for Crown Illness
[31] The Crown submits that the approximate 2-month period between July 15, 2022 and September 22, 2022 is a discrete circumstance resulting from the illness of the assigned Crown.
[32] On May 11, 2022, trial dates became available in July 2022 on account of an in-custody matter that had resolved. However, approximately one week earlier, the assigned Crown had been advised by a medical specialist that he should undergo an invasive procedure to deal with a recently diagnosed medical condition. He underwent this procedure on May 18, 2022. As a result, he was unable to accept the July 2022 trial dates that were offered on May 11, 2022. Fortunately, the medical procedure was successful, and the Crown was able to commence the trial on September 12, 2022.
[33] Courts have consistently concluded that illness is a discrete circumstance to be subtracted from the overall delay.[^9] However, Mr. Fisher argues that the delay resulting from the assigned Crown’s illness in this case should not be deducted because neither he, nor his counsel was advised of the availability of trial dates in July 2022.
[34] The Crown points out that on April 25, 2022, counsel for Mr. Fisher had indicated by email that the Crown need only inform her of possible trial dates in cases where both the court and the Crown were available. By the time the Crown learned on May 11, 2022 of the July 2022 trial dates, he was not able to take up those dates on account of his upcoming medical procedure. For this reason, he did not bring the dates to the attention of Mr. Fisher’s counsel.
[35] I regard this as reasonable in the circumstances and would therefore deduct the two-month period between July 15, 2022 and September 22, 2022 as a discrete circumstance on account of the illness of the assigned Crown.
Conclusion
[36] After deducting a total of 16.5 months from the initial 43-month delay, the remaining delay of 26.5 months is significantly below the Jordan presumptive 30-month ceiling. As noted earlier, where the remaining delay falls below the presumptive ceiling, a stay of proceedings will be rare and limited to clear cases. There has been no suggestion from Mr. Fisher that this one of those rare or clear cases.
[37] The Applicant’s s. 11 (b) application is therefore dismissed.
P. J. Monahan J.
Released: November 10, 2022
COURT FILE NO.: CR-21-70000436
DATE: 20221110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOHN FISHER
RULING ON s. 11(b) APPLICATION
P.J. Monahan J.
Released: November 10, 2022
[^1]: Constitution Act, 1982, Part I, as enacted by the Canada Act 1982 (U. K.) c. 11 (the "Charter").
[^2]: 2016 SCC 27 ("Jordan").
[^3]: Jordan, at paras. 5, 46–49 and 60; R. v. McManus, 2017 ONCA 188, at para. 21.
[^4]: Jordan, at paras. 69-71; R. v. Coulter, 2016 ONCA 704 ("Coulter"), at paras. 45-48.
[^5]: Coulter, at para. 49.
[^6]: R. v. Simmons, 2020 ONSC 7209 ("Simmons"), at para. 70, per Nakatsuru J.
[^7]: I adopt the comments of Dunphy J. to this effect in R. v. Cann, 2022 ONSC 2699, at para. 4, and R. v. Titus, 2022 ONSC 3484, at para. 13.
[^8]: R. v. Allen, 1996 4011 (ON CA), [1996] O.J. No. 3175 (C.A.), at para. 27.