Court File and Parties

COURT FILE NO.: CR-856/20 DATE: 20230224 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – JORDAN NICHOLAS – and – REYMON DUNCAN-JONES Respondents

Counsel: David Wilson, for the Crown Paul Socka, for Jordan Nicholas Peter Kott, for Reymon Duncan-Jones

HEARD: October 25 and 27, 2022

REASONS FOR DECISION

M.L. EDWARDS, RSJ.

Overview

[1] This is an application to stay the prosecution for unreasonable delay, pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). At issue are two discreet events that engage a discussion of exceptional circumstances. These discreet events include the Covid 19 pandemic (the “Pandemic”) and a mistrial declared in March 2022 by Smith, J. (the “Mistrial”).

Background

[2] On August 21, 2020, Mr. Duncan-Jones was driving a Lexus in Lindsay, Ontario. One of the occupants of the vehicle was Mr. Nicholas. The Lexus was pulled over by a police officer. A search of the vehicle was undertaken, which revealed a black bag under the driver’s seat, allegedly containing fentanyl.

[3] The officer who had stopped the Lexus formed the intention to arrest all of the occupants and while attempting to arrest Mr. Nicholas, he attempted to get away and was found to be in possession of a red satchel that allegedly contained a loaded handgun.

The History of the Prosecution

[4] Mr. Nicholas and Mr. Duncan-Jones were all charged on August 21, 2020. A preliminary inquiry was held on February 10 and 11, 2021. Two of the co-accused were discharged. Mr. Nicholas and Mr. Duncan-Jones were ordered to stand trial and a judicial pre-trial was conducted by Fuerst, J. by video on March 22, 2021. In fixing a trial date of March 7 through 11 and March 14 through 15, 2022, Fuerst, J. stated:

Alright, so we’re going to set some dates today. And they’re going to be in 2022. As I think I explained on the last occasion, jury trials are backed up centrally (ph), as they are everywhere in the province and that’s why I cannot give you a 2021 date for a jury trial.

[5] A jury was selected on March 7, 2022 and the evidence commenced on March 8, 2022. On March 14, 2022, a mistrial was declared by Smith, J.

[6] Subsequent to the mistrial, a follow-up judicial pre-trial was scheduled for April 13, 2022. On April 8, 2022, the Crown emailed the trial coordinator inquiring as to whether or not trial dates were available in February 2023. The trial coordinator offered trial dates beginning June 6, 2022 and January 3, 2023. Ultimately, after further dialogue between the Crown and the defence, a new trial date has now been scheduled to begin on March 27, 2023 concluding on April 4, 2023. The total delay between the time of arrest and the anticipated completion of the trial is a period of 31.4 months.

The Mistrial and the Position of the Defence

[7] The Crown commenced the evidence in this case on March 8, 2022 by calling the police officer, who had stopped the Lexus on August 21, 2020. The defence cross-examination attacked the credibility of this police officer. Prior to the cross-examination by counsel for Mr. Duncan-Jones, the Crown indicated that he had noticed “something” with respect to videos located outside the cells occupied by the applicants.

[8] Mr. Wilson, for the Crown, indicated that he planned to play the videos which caught defence counsel by surprise, as they had relied on the contents of the JPT memo that the Crown would not be relying on these videos. The videos themselves had been disclosed by the Crown to the defence on April 16, 2021 (i.e., approximately 11 months prior to the commencement of the trial).

[9] Neither the defence nor the Crown sought a mistrial. In his Reasons of March 14, 2022, Smith, J. stated:

The fact is this is a difficult decision that has, has serious ramifications for both sides of the courtroom. And had we got here under regular process, with things haven’t been done in the regular and orderly way, it would have been easy to make that decision easier. The fact is we are here under very difficult circumstances given the series of events that have transpired in the way this has unfolded. And I don’t think we can undo the damage that has been done. And so I am going to declare a mistrial.

I am looking at the whole situation now in hindsight and it is easy to do this in hindsight much easier than it is easier to do when you are involved. But it strikes me that there are things that the defence could have done differently, there are things the Crown could have done differently, there may even have been things that the judiciary could have done differently. It is clear with 2020 hindsight that when Mr. Embury flagged the cell video as an outstanding issue, that people ought to have realized that may be an issue. And by people I mean everyone. The defence could quite properly have said at that point, “we may need to come back in order to address that once we reviewed that evidence”. The Crown might have done the same thing and the bench might have done the same thing. As I say it is easy for me to say that 2020 hindsight…

The liberty interests of both Mr. Duncan-Jones and Mr. Nicholas are at stake here. That means there is a lot on the line. I do not think it is fair to either of those gentlemen that this matter proceed in the circumstances in which I have just outlined.

I would also like to make it as clear as I can that I really assign no blame to any particular party in this matter. As I have indicated, I think that everybody would have done this differently, including the judicial officers who were involved and I emphasis that I am saying that with 2020 hindsight. I am not criticizing anybody, I am just commenting on the reality of the situation.

I have not assigned any blame to anybody for this matter, it’s one of those situations that unfolds sometimes with, with a series of events where everything goes a little bit askew because of naughty (sic) issues and at the end of the day you get a big problem that just simply can’t be undone as I have just explained.

The Pandemic

[10] It is worth recalling that with the onset of the Pandemic and the lockdowns that ensued, there were orders made by the Chief Justice, commencing on March 15, 2020 that adjourned all criminal matters. It is also worth pointing out the obvious that the Pandemic did not end and, in fact, continues.

[11] On October 16, 2020, the Chief Justice issued a Notice to the Profession suspending jury selection in Newmarket for 28 days. It was then anticipated by a further Notice to the Profession, dated November 5, 2020 that jury trials would resume in Newmarket on November 16, 2020. Efforts were made to conduct jury trials, adopting appropriate social distancing and the erection of plexiglass in some, but not all, courtrooms.

[12] On April 20, 2021, in my capacity as the Regional Senior Justice for the Central East Region, I issued a Notice to the Profession indicating that there would be no new criminal matters proceeding unless they were “absolutely necessary”.

[13] On December 17, 2021, the Chief Justice issued a Notice to the Profession and Public, which amongst other things, noted that the court would not commence any new jury selection in any court location until February 7, 2022.

[14] On January 20, 2022, the Ontario government issued a news release setting forth the necessary steps that would lead to a gradual easing in public health measures. The news release indicated, amongst other things, that effective March 14, 2022, Ontario would ease public health measures including the lifting of capacity limits in all indoor public settings. With the easing of capacity limits and masking requirements, this court then was in a position to resume jury trials in a manner more consistent with the manner in which jury trials were conducted prior to the onset of the Pandemic.

Legal Principles

[15] A person charged with an offence has the right, pursuant to section 11(b) of the Charter to be tried within a reasonable time. To decide this application, this court must be guided by the analytical framework and the principles which were set forth by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. Underlying Jordan is a ceiling beyond which delay is presumptively unreasonable. For trials in this court, the presumptive ceiling is 30 months.

[16] In R. v. Coulter, 2016 ONCA 704, Gillese, J.A., provided a summary of the Jordan framework, which requires the following:

(1) Calculate the total delay, which is the time period from when the accused is charged to the actual or anticipated end of trial.

(2) Calculate the net delay by subtracting any defence delay from the total delay. In calculating defence delay, there are two components specifically defence waiver and defence cause delay.

(3) After subtracting the defence delay from the total delay, the court arrives at the net delay at which point the court is required to compare the net delay to the presumptive ceiling, which as previously noted in this court is 30 months.

(4) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.

(5) To rebut the presumption that the delay is unreasonable the Crown must establish the presence of exceptional circumstances. Generally speaking, exceptional circumstances fall under two categories: discreet events and particularly complex cases.

(6) Subtract delay caused by discreet events from the net delay which then leaves the “remaining” delay for the purposes of determining whether the presumptive ceiling has been reached. If the remaining delay exceeds the presumptive ceiling, the court must then move to a consideration of whether the case is particular complex, such that the time the case has taken is justified and the delay is reasonable.

(7) If the remaining delay falls below the presumptive ceiling, the onus is then on the defence to show that the delay is unreasonable.

[17] More recently the Court of Appeal in R v Zahor, 2022 ONCA 449 provided the following guidance on how to deal with “exceptional circumstances”:

Step 4: Consider exceptional circumstances. The focus is not on whether the circumstances are rare or uncommon, but rather whether they fell beyond the control of the Crown and could not be reasonably remedied by the Crown. Exceptional circumstances may reflect discrete events or they may involve cases of particular complexity. The Crown must demonstrate that it took reasonable steps, even if unsuccessful, to “circumvent and adapt to problems before the delay exceeded the presumptive ceiling.” (Zahor, para. 68. See also Jordan, para. 70).

Position of the Applicants

[18] The Applicant argues that the total delay from the date of arrest to the date when it is anticipated the trial in this matter will be completed is a total of 31.4 months, which exceeds the Jordan ceiling by six weeks. The Applicant argues that there has been no defence delay and that there are no exceptional circumstances to justify the delay.

[19] The Applicant argues that there is no delay that can be attributable to the Pandemic and that the delay that occurred as a result of the mistrial was entirely foreseeable and therefore should be considered Crown delay.

Position of the Crown

[20] As it relates to the suggestion articulated, by counsel for the Applicant, that the delay caused by the mistrial should be attributed to the Crown. Mr. Wilson argues that this issue is essentially res judicata given that Justice Smith, in his mistrial reasons, made it clear that he was assigning no blame to any party for the mistrial and, as such, the delay attributable to the mistrial should be considered an exceptional circumstance, specifically a discreet event.

[21] Mr. Wilson also argues that the period between March 22, 2021 and March 7, 2022 is attributable to delays, backlog, and the domino effect caused by the Pandemic and, as such, a period of 11.5 months should be considered an exceptional circumstance which should be deducted from the total delay.

[22] Mr. Wilson argues that the net delay is no more than 7 months, once deductions are made for exceptional circumstance, specifically the 11.5 month delay attributable to the Pandemic and the 12.7 months to the mistrial discreet event.

Analysis

The Mistrial and 11B

[23] The Crown in this case argues that the period between June 6, 2022 and March 27, 2023 should be considered defence delay. Underlying this argument is the suggestion that the defence did not adequately respond to inquiries from the trial coordinator with respect to the availability of the defence to respond to potential trial dates prior to the scheduled trial now set to begin March 27 and April 3, 2023. In my view, it is unnecessary for this court to consider whether this period of time should be considered defence delay as the evidentiary record is inadequate and is not reflected in any actual appearances before the court.

[24] The discreet events that are of particular significance relate to whether or not the mistrial should be considered an exceptional circumstance and/or whether the period of delay between March 2021 and March 2022 should also be considered an exceptional circumstance attributable to the Pandemic.

[25] As it relates to the delay attributable to the mistrial, the defence argues that this delay should have been entirely foreseeable when the Crown showed up on the third day of a seven day jury trial with four days worth of video to play to its first witness. Specifically, the defence argues that the Crown position was frivolous; that the out of court statements were not hearsay and that the mistrial was inevitable. The defence argues that what occurred before Smith, J. could have been easily avoided once the Crown had decided to use the cell block footage, by notifying defence counsel well in advance of the trial and should have requested a continuing judicial pre-trial where the issues of hearsay and disreputable conduct evidence could be discussed.

[26] The difficulty as I see it, with respect to the defence position, concerning the question of whether any Crown delay should be attributable to the mistrial relates to the fact this issue has already been either directly or indirectly addressed in the reasons of Smith, J. granting the mistrial.

[27] The question of what is encompassed by exceptional circumstances was addressed by the Supreme Court in Jordan at paragraph 69, where it is made clear that exceptional circumstances will lie outside of the control of the Crown where they are reasonably unforeseen or reasonably unavoidable and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. The Supreme Court also makes clear under the subheading “Exceptional Circumstances” in paragraph 69 through 79 that the determination of whether circumstances are exceptional will very much lie within the trial judge’s expertise and experience.

[28] In his reasons, Smith, J. being the trial judge, ultimately was in the best position to determine whether or not the cause of the mistrial should be attributed to the conduct of the Crown. While Smith, J. made it clear that all of the parties might have done things differently, ultimately the reasons of Smith, J. make clear that all parties were blameless in causing the mistrial; that the positions advanced by the parties were reasonable; and that the mistrial was necessary to avoid prejudice to any of the parties; and to ensure trial fairness.

[29] In my view, Smith, J. was in the best position as the trial judge to attribute blame if blame was to be attributed and his reasons do not attribute such blame to the conduct of the Crown as in any way causative of the mistrial. The reasons of Smith, J. are res judicata as it relates to the issue of blame and, in my view, the proper way to approach the delay caused by the mistrial is to consider it an exceptional circumstance and a discreet event. As such, the period of time attributable to the mistrial should be deducted from the delay in this matter, which brings this matter well within the Jordan timeframe.

The Pandemic and 11B

[30] If I am wrong in my attribution of the delay caused by the mistrial and it is ultimately determined that such delay should be attributable to the Crown, this court must still consider the period of delay that is said to be attributable to the Pandemic (i.e., the period between March 2021 when this matter first came into the Superior Court and the period in March 2022 when this matter first came before Smith, J. for trial). The Crown argues that this delay should be considered an exceptional circumstance as it is attributable to the Pandemic.

[31] It is beyond dispute that the pandemic has been a worldwide health crisis that was unavoidable and unforeseen. The pandemic has impacted everyone and has resulted in the suspension of normal court operations across all lines of this Courts business i.e., criminal, civil and family. While the Court endeavored to conduct jury trials after the initial lock down it has only been since March 2022 that the Court has been able to conduct jury trials in a regular jury court room. Prior to March 2022 while jury trials did take place they were only held in a court room that had been specially designed for a “socially distanced trial”. Because Central East Region (of which I am the RSJ) only had a very few “socially distanced jury court rooms” it was simply impossible to conduct the number of criminal jury trials as were held pre Pandemic.

[32] In the Court rooms around the Central East Region a socially distanced jury trial required reconfiguring the larger court rooms with plexi-glass and creating a socially distanced jury deliberation room by converting court rooms into deliberation rooms. These reconfigurations took place in Barrie, Newmarket, Oshawa and elsewhere across the province of Ontario. While the reconfiguration of jury court rooms did allow for the conduct of a criminal jury trial the court did not have the ability to conduct anywhere near the number of criminal jury trials that it did pre pandemic.

[33] What is also often lost sight of when analyzing the impact of the pandemic on criminal jury trials is the impact the pandemic has had on the entire judicial system. While an accused awaiting his or her trial has a constitutionally protected right to a trial within a reasonable period of time, non criminal litigants i.e., family law and civil litigants also have a right to have their cases adjudicated in a timely fashion. The Superior Court of Justice must address all lines of its work which by definition includes family and civil. I can do no better in describing the impact of the pandemic than refer to R v Pettitt, 2021 ABQB 84 where at para 20 Renke, J stated:

“The adjournment of jury trials in March 2020 did not freeze the number of jury trials and non jury trials in the queue. Like river water accumulating behind a dam, the reservoir of unheard matters comprised not only the matters scheduled for trial over the months when jury trials were not heard, but the new jury and non jury trials that were moving through the system. And the courts are responsible for more than criminal matters. Family, civil, commercial, and judicial review matters also accumulated…”

[34] When this matter came before Smith J. in March 2022, the court was just beginning to return to somewhat normal operations. By that I mean the court was able to conduct criminal jury trials without the need for social distancing. The pandemic was not over as of March 2022 any more than it is over as I write these reasons. We are however beginning to learn to live with covid and we realize we need to tackle the backlog of cases in the system; a backlog that is not restricted to just criminal cases. It is precisely for this reason that Fuerst, J. stated on March 22, 2021 that the earliest date she could offer for a 7-day criminal jury trial was March 2022.

[35] There is a divergence of views amongst trial judges as to how to attribute delay caused by the Pandemic. There can be little doubt that the Pandemic amounts to a discreet exceptional circumstance. This conclusion is not controversial, and it has been confirmed and reaffirmed by numerous courts throughout this province and around the country. In R. v. Hyacinthe, 2022 ONSC 1444, Harris, J. at para. 17 concluded that where an accused has insisted on a jury trial, despite the suspension of such trials, the whole of the delay to the end of the next scheduled trial date should be deducted from the total delay. Specifically, Harris, J. stated:

I agree with the opinion voiced in the caselaw that generally the entire two-year period ought to be regarded as an exceptional circumstance even though, theoretically, a jury trial could have been heard if the timing was precisely right and all the stars magically aligned. Cognizance must be taken of the reality that only a select few of the multitude of backlogged jury trials could fit into the few spaces in the court docket that were available: See Khattra at paras. 62, 79-83.

There was a significant domino effect which affected this case and the vast majority of other jury trials. The entire waiting period caused by Covid, in my view, caused exceptional delay.

[36] The most recent state of the jurisprudence as it relates to the implications of the Pandemic and 11B is well set out in the recent decision of Boswell J. in R v Khan, 2022 ONSC 7310 at para 109 as follows:

(a) “ COVID-19 is undeniably a discrete, exceptional event within the meaning of Jordan,

(b) Crown counsel must establish, however, that delays attributed to COVID-19 were actually caused by the pandemic and not some other factor. In other words, that the delay would not have been incurred but for the pandemic; and,

(c) Even where the Crown establishes that a delay was directly attributable to the pandemic, it must still establish that the delay could not reasonably have been mitigated by the court or the Crown. In making this assessment, the court will take into account advancements in the technological abilities of the court to run hearings remotely or in a hybrid manner as the pandemic went on.

[37] In his reasons at para 116 and 117 Boswell J. goes on to analyze the reality of how the Pandemic has affected the court system and the implications of that reality as it relates to an 11B Application. I can do no better than reproduce those paragraphs as in my view they are an accurate reflection of the reality faced by the Court over the course of the pandemic:

“The “reasonableness” of the response of the Crown and the court in terms of attenuating COVID-related delays must be considered in the light of the complex and challenging circumstances that existed on the ground. This was not business as usual and the analysis should respect that. Any single case can easily be plucked out of the sea of cases impacted by COVID- 19 and questions asked about what more the Crown could have done to find earlier dates after the Jordan ceiling was breached. For each of the hundreds of cases delayed by COVID-19, the Crown could be asked, “why didn’t you go to the trial co-ordinators’ office and push for sooner dates?” Or, “why didn’t you pursue more active case management?” Or, “why didn’t you approach the Regional Senior Justice with a view to redeploying resources to focus on this case?”

The reality is, however, that the Crown and the court were not dealing with a single case. They were simultaneously dealing with hundreds of cases in Jordan trouble. It was simply not possible to give them all “earlier dates” or to redeploy resources to focus on each individual case. For every case given a particular date, another case had to wait. In my judgment, where cases have clearly been delayed due to the COVID-19 pandemic, the Jordan analysis should generally focus more on the reasonableness of the systemic response than what the Crown may have done or not done in relation to any single case. The actions or inactions of the Crown may have particular relevance in a specific case. But in my view, most cases will fall to be determined on the reasonableness of the systemic response to the crisis.”

[38] While I take no issue with my colleagues throughout this province where they have concluded that the Pandemic should be considered an exceptional circumstance, in my view, it is worth considering what would have happened if the Pandemic had never happened when this matter first came before Fuerst, J. in March 2021. If, the Pandemic had never occurred and as the Regional Senior Justice for the Central East Region with overall responsibility for the scheduling of all matters in this Region, I can take specific judicial notice of the fact that there would have been an inherent delay before a trial date could or would have been assigned to this matter. Assuming the Pandemic had never happened when the matter first came into the Superior Court in March 2021, there was no urgency from a Jordan perspective to assign an early trial date. As such, it would have been highly unlikely that when the matter came before Fuerst, J. in March 2021 that a trial date any earlier than six months hence would have been assigned to this matter.

[39] Assuming that the Pandemic had never happened and accepting that there was an inherent delay of at least six months between the time when a matter came into the Superior Court before a trial date would have been assigned, in my view, the appropriate delay attributable to the Pandemic in this case is not twelve months but rather six months. To attribute the entirety of the delay to the Pandemic fails to recognize that there would have been some delay pre-Pandemic due to the inherent delays existing in the court system.

[40] The defence asserts that the total delay in this matter is 31.5 months. I have already concluded that the delay attributable to the mistrial brings this matter well within the Jordan deadline. If I am incorrect as it relates to the mistrial delay this matter still remains within the Jordan timeframe, given that there should be a deduction of six months attributable to the Pandemic as an exceptional circumstance. The Applicants’ motion seeking a stay of proceedings under section 11(b) and (24) (1) of the Charter is therefore dismissed.

M.L Edwards, RSJ.

Released: February 24, 2023