COURT FILE NO.: CR 19-0054
DATE: 2022-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
G. Roy, for the Public Prosecution Service
-and-
ANGELO KIRKOPOULOS
Applicant
J. Stephenson and C. Valeri for the Applicant
HEARD: October 5, 2022
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24 OF THE CHARTER
A.J. GOODMAN, J.
[1] This 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”).
[2] The applicant, Angelo Kirkopoulos (“Kirkopoulos”) argues that his constitutional rights have been infringed due to the inordinate delay in proceeding with this trial.
Background and Issue:
[3] The applicant was charged on May 8, 2018. The trial is slated to commence on January 9, 2023 and is expected to continue until January 20, 2023.
[4] During the course of the hearing, the parties focussed on two 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 the COVID-19 pandemic.
Positions of the Parties:
[5] The applicant submits that his s. 11(b) rights have been infringed and that he is entitled to an appropriate remedy.
[6] The parties agree that the total delay from the charge date to the completion of trial is 56½ months. The applicant submits that when eliminating some period of time attributable to the defence, there is at least 34 to 36 months of delay, which is above the presumptive ceiling.
[7] The Crown disagrees with some of the applicant’s calculations of delay in this case. The Crown argues that a discrete exceptional event includes the COVID-19 pandemic with the cessation of proceedings and jury trials in Hamilton as well as defence delay. With all of this time deduced, the remaining period of delay is 26 to 28 months, well short of the presumptive ceiling.
[8] In oral submissions, the Crown attorney limited his argument to the two aforementioned areas without any reference to the issue of complexity.
[9] The 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:
[10] Section 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 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
[11] The 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.
[12] In 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.
[13] The Supreme Court set a presumptive ceiling of 30 months for cases proceeding in the superior courts.
[14] In 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.
[15] If 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.
[16] Where 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.
[17] Delay 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.
[18] If 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.
[19] On 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:
[20] A 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 CanLII 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.
[21] As 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
[22] The starting point is calculating the Total Delay; in this case, the time between the charge laid on May 8, 2018 and the anticipated end of trial currently set for January 20, 2023. Here, the total delay is 56½ months.
[23] The 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.
[24] Accordingly, 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.
[25] Defence 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.
[26] Examples 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.
[27] Determining 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:
[28] In 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. Godin may be the subject of some debate as to whether it is still applicable post-Jordan. However, I find that Godin can still be applied, albeit contextually. 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.
[29] The 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.
[30] If I understand the Crown attorney’s position, (and to be candid, it is not entirely clear to me), Mr. Roy raises the two specific periods of delay for defence delay: namely, between June 29, 2020 to January 17, 2022. The second timeframe is January 17, 2022 to January 20, 2023.
[31] The Crown says that this initial period was waived or was otherwise defence delay. While conceding that the period falls under the COVID-19 cessation of jury trials, especially in October 2020, the Crown argues that this period of delay relates directly to the actions of the defence, including a change of counsel and new counsel’s unavailability for the timely scheduling of trials. All of the defence’s actions caused the entire period of delay.
[32] The Crown says that the second period is captured by the exceptional circumstances of the COVID-19 pandemic. The Crown says that while judges were not available from January 2022 until the trial scheduled for January 2023, this is a result of the discrete event of the pandemic.
[33] The Crown submits that when the applicant discharged his original counsel in June of 2020, the jury trial set for September of that year could not proceed. Despite new counsel’s efforts to get up to speed, or to use the time set aside for the jury trial, the time could not be used. The Crown was advised that Ms. Stephenson might be retained on June 29, 2020 and moved to provide disclosure as soon as possible. The Crown provided Ms. Stephenson with the trial dates and she advised she was not available. The Crown stated that it would not consent to an adjournment but acknowledged the applicant would likely succeed if he applied for one.
[34] Ms. Stephenson also advised that her estimate of the pre-trial motions may be different. On July 6, 2020, Ms. Stephenson confirmed her retainer and stated she might be available for the trial dates.
[35] On July 6 and 7, 2020 the Crown, the defence and the trial coordinator corresponded to set up a further judicial pre-trial. The trial coordinator advised that the August 31 dates for the pre-trial are still in place, but she is not sure if there will be jury trials in September due to the pandemic.
[36] As of July 24, 2020, Ms. Stephenson was not in a position to conduct a full pre-trial and Reid J. suggested a continuing pre-trial be held. The Crown says that if Ms. Stephenson had intended to use the original dates for the pre-trial motions, her materials would have been due on July 31, 2020. By the end of July 2020, it was clear the August 31 pre-trial dates would be lost.
[37] On August 21, 2020, the applicant brought an adjournment application. On September 18, 2020, the matter was remanded to the next assignment court dates following an explanation to the presiding judge of the background of the case. Ms. Stephenson advises that earlier dates were adjourned, the trial coordinator had offered October 5, for pre-trial motions, but that she had not yet filed materials and it is unlikely that the motions can be heard.
[38] The trial coordinator was able to provide dates for the pre-trial motions starting on October 13, 2020. Skarica J. provided judgment on October 15, 2020 and the Crown asked for some time to re-evaluate the case given the exclusion of some of the evidence. The matter was remanded to the next assignment court date of November 20, 2020. In the interim, the Crown and defence arrange for another judicial pre-trial on November 25, 2020 to canvass time estimates for further pre-trial motions and a revised trial estimate.
[39] At the judicial pre-trial, the time estimate was three days for a further s. 8 Charter challenge and 2 weeks for a jury trial. In January, the pre-trial motion dates for March 29, 30, and 31, 2021 were confirmed. At the conclusion of the pre-trial motions, the Crown and defence write to the trial coordinator to request the trial dates. The court also offers December 6, 2021 but the defence was not available. The final date selected is January 17, 2022.
[40] On December 17, 2021, the Chief Justice suspended jury trials in the province of Ontario for a second time, until at least February 7, 2022. This was later extended to February 28, 2022. The applicant’s jury trial could not be heard during the scheduled dates and on January 17, 2022 the matter was remanded to the March assignment court.
[41] On March 8, 2022, the trial coordinator advised she did not have any dates for any judge until 2023. In May 2022, after setting dates for May 2023, the trial coordinator offered a two-week trial starting January 8, 2022. The defence was available and the Crown moved the personnel to cover the trial.
[42] The Crown submits that the court and the crown were available to proceed as early as April of 2020, (with an estimated end date of July 17, 2020). The Crown was ready to proceed with the pre-trial motions that had been scheduled for August 31, 2020 and agreed to proceed on short service for pre-trial motions in October, 2020. The defence was not ready to proceed. The delay that followed from the switch of counsel and the lost trial dates should be considered defence delay in their entirety.
[43] In oral argument, counsel for the applicant concedes some period of delay due to defence conduct. The applicant says that the case against him has now taken over four years before it will complete. While there was some defence delay around August and September 2020 (August 31, 2020, to October 15, 2020) when the applicant changed counsel from Mr. Pillay to Ms. Stephenson, the applicant, through counsel, made efforts throughout the process to move this matter along. Counsel was flexible and available in a short span of time given how late they came to the case. While the August 31, 2020 pre-trial motions were adjourned due to new counsel coming on board, there were also scheduling issues occurring with the trial coordinator unable to find a judge to sit for the motion. In all likelihood, this matter would have been adjourned anyways, questioning whether it is truly defence delay as the applicant argues that the court would not have been available to offer dates.
[44] The applicant says that the transcripts also make clear that new counsel was willing to be flexible and do whatever was necessary to speed the matter along. Counsel also agreed to having a different judge hear the motions. Throughout the scheduling of dates, counsel continuously prioritized this matter by rescheduling other matters, filing materials in a quick turn-around, and making herself available for offered dates. To the Crown’s credit, they made effort to do this well – but ultimately it was a matter of court availability along with the pandemic.
[45] In fact, some of the pretrial applications were heard during the pandemic period and some steps were taken to advance the case.
[46] From my review of the transcripts and materials filed, that defence counsel’s unavailability, combined with the change in counsel created a delay attributable to the defence and is defence-caused delay, but not to the extent advanced by the Crown: See R. v. Lai, 2021 SCC 52, (2021) 407 C.C.C. (3d) 1.
[47] Therefore, I find that the period from June 23, 2020 to October 13, 2020, and December 18, 2020 to March 29, 2021, a period of seven months, is defence-caused delay. This leaves a net delay of 49½ months. This time period is above the 30-month ceiling.
ii. Exceptional Circumstances:
[48] In 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.
[49] Compelling 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.
[50] As 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 – COVID-19 Pandemic
[51] Generally, 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.
[52] I 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).
[53] Accordingly, 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.
[54] The Crown submits that the delays caused to this matter by the COVID-19 pandemic are identifiable and are an exceptional circumstance.
[55] On January 17, 2022, the trial was again deferred because jury trials had again been suspended in the Province of Ontario. At that time, the remainder of 2022 had already been filled in the court calendar as the court system attempted to move through the backlog of cases.
[56] The Crown’s ultimate position is that the total “net delay” in this case is 26 to 28 months. This captures the period from the time of arrest to the middle of July 2020, when the first trial dates offered by the court would have been completed for the trial. The periods thereafter were either waived, caused by defence delay or covered by exceptional circumstances.
[57] The Crown argues that this motion should be dismissed as the parties could have progressed to the pre-trial stage much more quickly and obtained a trial date sooner. Almost the entire segment of this delay should be deducted as a discrete event and/or defence-caused delay.
[58] The 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 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.
[59] Indeed, the applicant tacitly concedes that the pandemic is an exceptional circumstance. However, the applicant does not attribute much, if any, of the period of delay to this particular issue. Instead, while acknowledging that normally an exceptional circumstance may arise as a result of the pandemic, this case moved along, even with the court having postponed trials until the general 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, a limited “discrete event” time deduction should apply.
[60] It is settled law 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 distinguish some of those cases as applicable to the matter before me.
[61] In 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.
[62] Since 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.
[63] In 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.
[64] In Schardt, dates 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.
[65] In 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 and material disclosure was still outstanding when the second trial date resulted in an adjournment.
[66] In R. v. Hannan 2022 ONCA 209, the Court of Appeal explained that determining the amount of defence delay requires a contextual approach, as defence delay arises from actions that are “solely or directly” caused by the defence. In some case, such as a defence adjournment application at the last minute, the entire time to the next trial should be attributable to the defence. The Crown says that this is one of those cases. I disagree.
[67] While the 2020 adjournment was a defence request because the applicant switched counsel too late for the new counsel to conduct the originally scheduled jury trial, it does not follow that, in this case, all of the time from change of counsel to the date of the trial ought to be considered waiver, defence delay or an exceptional circumstance as the Crown suggests.
[68] While it is true that COVID-19 directly prevented the parties from moving forward, after Ms. Stephenson came on board, the parties were ready to proceed but backlogs and unavailability of judges or jury trials in 2022 prevented them from doing so.
[69] In any event, there is some merit to the applicant’s arguments. Some pretrial matters were dealt with during the proverbial shutdown of the court. The Crown had to reassess its case. 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. I am not so convinced such is the case here.
[70] That 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 CanLII 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.” As far as I am aware, the principles arising from Allen is still good law. I have considered counsel’s submissions and the fact that, despite the pandemic, counsel made efforts to have a JPT and several pretrial motions scheduled.
[71] 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.
[72] I 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.
[73] For the purpose of this application, I reiterate my holding on this particular issue as outlined in R. v. Hinterberger, 2022 ONSC 4860. 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.
[74] Thus, I am not persuaded that the entire period of time – as alleged by the Crown, approximately 28 months of delay, which leaves a net delay of 26 months (sic) as claimed, is to be attributable to the COVID-19 pandemic and or comingled with defence caused delay.
[75] When the COVID-19 pandemic began in March of 2020, it was natural that some delays would occur; however, that does not account for the entirety of delays in this case. Ms. Stephenson was on board and attempted to schedule pre-trial motions by September of 2020. By December 2020-January 2021, further pre-trial motions were contemplated as a result of the outcome of the first set of pre-trial motions and were scheduled for March of 2021. What causes delay in this matter is two instances: firstly, the January 17, 2022 trial being adjourned due to COVID-19 measures which prevented juries from sitting, and secondly, the difficulties in rescheduling the trial caused by lack of dates being available in the Superior Court of Justice in Hamilton.
[76] Due to Omicron variant, however, jury trials were again suspended as of January 19, 2022, until February 28, 2022. Once jury trials were ready to resume on February 28, 2022, there were some delays with respect to rescheduling the trial. On March 18, 2022, the transcripts reflect that the Crown and the defence were ready to reschedule dates but that the court was not able to offer dates until May 20, 2022. I agree with the applicant that having no available dates left following the re-opening of courts in 2022, by March 2022 demonstrates institutional delay and that there must have been a serious backlog in the courts.
[77] I accept that defence counsel had many available dates before the ultimate trial dates of January 2023 were offered. While this matter did require two sets of pre-trial motions, both were able to be scheduled quickly and do not explain the totality of delays in setting the matter down for trial.
[78] I agree with the applicant that any and all requests for adjournments and pre-trial motions on the part of the defence were not only reasonable, but constituted legitimate actions taken to respond to the charges. As such, I have only deducted specific segments of time due to delay attributable to COVID-19, as follows: The eligible period is from January 19, 2021 to May 20, 2022, due to the subsequent shutdown of the courts according to the provincial directives.[^1] It is clear that the parties were ready to proceed but the court could not set dates due to the pandemic. Eventually, the court offered January 2023 for trial. This latter period falls as institutional delay with a backlog of criminal cases.
[79] For the aforementioned fourteen month period from March 29, 2021 to May 20, 2022, the COVID-19 pandemic precluded the parties from setting realistic hearing and/or trial dates. While some 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
[80] The total delay is 56½ months from the charge or initial information being sworn to the proposed end of the trial. Further, subtract seven months for defence caused-delay to achieve the Net delay. From that amount, subtract 14 months due to the discrete event of the pandemic with the reality of the ubiquitous cessation of jury trials in Hamilton. The Remaining Delay is 35½ months, which is above the 30-month threshold in Jordan.
[81] There is no issue of complexity or other reason advanced by the Crown to suggest that exceeding the presumptive threshold is reasonable in the circumstances.
CONCLUSION:
[82] Having regard to the overall s. 11(b) and Jordan analysis, there was a total delay of 56½ months. When calculating the net delay, the result is 49½ months. A further period of 14 months is captured by an exceptional circumstance due to the discrete event of the pandemic and the ubiquitous cessation of hearings or trials in the Superior Court in Ontario.
[83] The Remaining Delay of 35½ months exceeds the Jordan guidelines for a jury trial in the Superior Court and is presumptively unreasonable.
[84] The applicant’s rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay has been breached. The application is granted and the charges are hereby stayed.
A.J. GOODMAN J.
Released: November 18, 2022
COURT FILE NO.: CR 19-0054
DATE: 2022-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
-and-
ANGELO KIRKOPOULOS
Applicant
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
A. J. Goodman J.
DATED: November 18, 2022
[^1]: I have already deducted the period from January 19, 2021 to March 29, 2021 as defence-caused delay.