Court File and Parties

COURT FILE NO.: CR-20-18 DATE: 2023-02-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING, Respondent – and – Maverick Bushey, Applicant

COUNSEL: J. Recoskie, for the Respondent M. Haraschuk, for the Applicant

HEARD at Gore Bay (by teleconference): February 7, 2023

DECISION ON DELAY APPLICATION

A.D. Kurke, J.

Overview

[1] The applicant is charged with a sexual assault that is alleged to have occurred on June 23, 2020. The information in the case was sworn July 15, 2020. His jury trial with co-accused Teigan Seabrook is scheduled to begin April 24, 2023, or more than 33 months after the information was sworn. The applicant asserts that his s. 11(b) Charter right will have been breached by the trial date, and that a stay of proceedings should be entered under s. 24(1) of the Charter.

[2] According to the applicant, the delay that caused this matter to exceed the R. v. Jordan guideline of 30 months was the adjournment of the October 31, 2022 trial date to accommodate his co-accused’s need to secure new counsel after a scheduling conflict resulted in the loss of his earlier counsel. The applicant opposed that adjournment and declared his readiness to proceed to trial in October 2022, if the Crown severed his prosecution from the co-accused’s. But the Crown did not do so, and the applicant asserts that the delay in the case became unreasonable. The Crown submits that in the circumstances of this case a “communal approach” to the delay was appropriate, severance would have been unjust, and the delay in this case was exceptional in that it was occasioned by circumstance and COVID and not by Crown or court.

[3] For the following reasons I find that the applicant’s s. 11(b) right has been breached and the charge against him must be stayed.

Section 11(b) of the Charter

Overview

[4] Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that “[a]ny person charged with an offence has the right to be tried within a reasonable time.”

[5] The decision in R. v. Jordan, 2016 SCC 27, provides a framework for the determination of unreasonable delay in criminal proceedings. Matters tried in the Superior Court have a ceiling of 30 months to the end of trial. If the net delay exceeds the ceiling of 30 months, then the delay is presumptively unreasonable, and the Crown has the burden of showing that exceptional circumstances justified the delay. If it cannot do so, a stay of proceedings will follow. Below the ceiling, the defence has the burden of showing that the delay was unreasonable, even though the ceiling was not surpassed: Jordan, at paras. 5, 46-49, 68; R. v. McManus, 2017 ONCA 188, at paras. 21-22.

[6] In R. v. Coulter, 2016 ONCA 704, at paras. 34-41, the Court of Appeal set out a summary of the steps in determining a s. 11(b) application. Those steps are as follows where the application is based on delay exceeding 30 months:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;
2. Subtract defence delay from the total delay, which results in the "net delay";
3. Compare the net delay to the presumptive ceiling;
4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
5. Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached;
6. 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.

Defence delay

[7] There are periods of delay to be subtracted from the total. These include periods of time that are waived by an accused and periods of delay caused by the conduct of the defence. Defence-caused delay includes situations where the acts or inaction of an accused either directly cause the delay or are shown to be markedly inefficient or a deliberate and calculated tactic employed by an accused to delay the trial. Included in defence-caused delay are situations where the court and Crown are prepared to proceed, but the defence is not: Jordan, at paras. 60-66; R. v. Cody, 2017 SCC 31, at paras. 28-36; R. v. Williamson, 2016 SCC 28, at paras. 21-22; R. v. Gopie, 2017 ONCA 728, at paras. 147-157. Unwillingness by defence counsel to accept a future date that is available to Crown and court creates delay attributable to the defence: R v. Albinowski, 2018 ONCA 1084, at paras. 28-33.

Exceptional circumstances

[8] Where the presumptive ceiling is exceeded, the Crown must show that there were exceptional circumstances in the case, which can include discrete events or complexity. Exceptional circumstances are things beyond the Crown’s control as reasonably unforeseen or unavoidable that result in delays that the Crown cannot reasonably remedy. In a case where exceptional circumstances arise, the Crown must take steps to avoid or attempt to address the delay: Jordan, at paras. 69-71; Cody, at paras. 44-48, 54; McManus, at paras. 40-46.

[9] In the context of exceptional circumstances, the Supreme Court offered the following direction in Jordan, at para. 70:

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

[10] Discrete events involve dynamic developments in a proceeding that are time limited, either before trial or at trial; the delay they cause is deducted from the total delay: Jordan, at paras. 72-75; Cody, at para. 48. Complexity relates to a qualitative assessment of evidence or issues involved in a prosecution justifying expanded timelines: Jordan, at paras. 77-79; Cody, at paras. 64-65; R. v. Manasseri, 2016 ONCA 703, at para. 311; Gopie, at paras. 169-175.

Joint prosecutions and complexity

[11] Delays occasioned by one accused must be examined in determining whether another accused’s right to trial within a reasonable time has been breached. The circumstances of the case will affect the assessment of the s. 11(b) right. Provided that the joint prosecution of the accused persons in a given case is in the interests of justice, the complexity of the proceedings will necessarily increase, thus justifying more delay: R. v. Ny, 2016 ONSC 8031, at para. 47 (per Fairburn J., as she then was); Gopie, at para. 170; R. v. Hamblett, 2022 ONSC 5968, at para. 15.

[12] On the other hand, the Crown has a duty to “remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of [another] accused.” In the circumstances of a given case, the Crown will have an obligation to sever the prosecutions of jointly charged accused persons when the delay-causing conduct of one accused holds the other accused hostage and compromises their s. 11(b) right: Manasseri, at para. 323; R. v. Vassell, 2016 SCC 26, at paras. 5-10; Gopie, at para. 171; Hamblett, at paras. 14, 16.

COVID-19 as exceptional circumstance

[13] Courts have considered the various ways in which the COVID-19 pandemic should be assessed in the Jordan analysis. There seems little dispute that the pandemic can represent an exceptional circumstance: R. v. Fitzpatrick, 2021 ONSC 647, at para 19; R. v. M.T., 2022 ONSC 2900, at para. 26; R. v. Titus, 2022 ONSC 3484, at paras. 17-18. The nature of the pandemic and the public safety measures that it has occasioned limit the Crown’s and the court’s ability to mitigate delay: R. v. Simmons, 2020 ONSC 7209, at paras. 70-72.

[14] Adjournments caused by court shutdowns or delays in setting dates that may be attributed to the pandemic allow a calculation of exceptional delay: thus, see M.T., at para. 22; Titus, at paras. 9-11. Repeated delays caused by pandemic-related adjournments have justified longer periods as exceptional circumstances: R. v. Peltier, 2022 ONSC 822, at para. 81. Knowledge of the court culture by a judge who presides in a particular centre can assist in determining the actual effects or lack of effects of the pandemic: R. v. L.L., 2023 ONCA 52, at paras. 20-23.

[15] Some courts have spoken of the “knock on” effect of the pandemic, which stalls not only individual cases, but the whole system because of the congestion from cases backing up and requiring accommodation: R. v. Brown, 2023 ONSC 39, at paras. 13-15; Titus, at paras. 12-18. Taken to its extreme, two years or more of delay can be attributed to the pandemic, as in R. v. Hyacinthe, 2022 ONSC 1327, at para. 17:

It is universally acknowledged in the jurisprudence that the pandemic is an exceptional circumstance …. No rational argument can possibly be made otherwise. It is my view that everything that occurred in the two-year period between March 2020 and the upcoming trial date of March 21, 2022 lies under a blanket of exceptional delay attributable to the pandemic. Jury trials have been very rare over the last two years. 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 …. 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 constitutes exceptional delay [references omitted].

The passage of this case through the system

[16] The information in this matter was sworn July 15, 2020. By November 25, 2020, the matter was back in court in the Ontario Court of Justice after a counsel pre-trial. On December 16, 2020, the applicant elected to be tried in the Superior Court, and the case went to January 25, 2021 in this court.

[17] Scheduling and holding a judicial pre-trial (“JPT”) in the Superior Court proved to be problematic. A JPT was scheduled for March 29, 2021 but was adjourned because of outstanding disclosure issues. A continuation was finally scheduled for July 6, 2021, but on that date the JPT was adjourned once again for outstanding disclosure issues. On August 9, 2021, the continuation was set for September 20, 2021, when the JPT was finally completed. Although delay such as this is very troubling, it is unlikely to have made a difference in the more obstructive context of the pandemic.

[18] On Manitoulin Island, for whatever reason, the bulk of matters that proceed to trial in the Superior Court in Gore Bay are destined to be heard by a jury. The pandemic had a far-reaching effect on the court’s ability to hold jury trials. The evidence in this case demonstrates the many suspensions of court business done to stem the spread of COVID-19 and to protect the public from exposure to the illness.

[19] From the date of the first order by the Chief Justice of the Superior Court related to the suspension of court work because of the pandemic on March 15, 2020, most of 2020 was lost as sitting time for jury trials. Jury trial work was further suspended for the first half of 2021 through various Notices by the Chief Justice to the Profession and the Public. The first criminal jury trial in Gore Bay in 2021 was only held in September of that year. Again on December 17, 2021, jury selection was suspended because of the pandemic by Notice from the Chief Justice. Ultimately, this suspension continued up through February 28, 2022.

[20] On August 6, 2021, shortly before the August 2021 assignment court in which this case was to be scheduled for trial, the trial coordinator in Gore Bay sent an e-mail to counsel setting out jury trial sittings for 2022. Unsurprisingly, given that the court had been shut down for most of the preceding 17 months, there was a backlog of jury trials, with trial dates to be set at assignment court based on the age of the matters. On offer was a broad range of dates: January (10 days), February (10 days), May (May 10-20, 24-31, with a jury selection date of May 9), June (8 days), September (September 12-30), October (October 18-November 4), November (7 days), and December (7 days). Concerning this case, the Crown replied that it was available for any of the available dates. The Crown received no response to its e-mail.

[21] Of the eight matters on the August 9, 2021 assignment court list, six had already passed their “Jordan” dates, another was due to time out February 1, 2022, and the applicant’s matter was the “newest”, with a Jordan date of January 14, 2023. As the local administrative judge in Gore Bay, I find that such a backlog of cases in which the accused persons’ s. 11(b) rights appeared to be imperilled is highly unusual. It is apparent to me, and I find, that the pandemic shutdowns in 2020 and 2021 created a backlog of cases on Manitoulin that could not be reduced until juries could again be regularly empanelled.

[22] At the August 9, 2021 assignment court, counsel for the applicant was reluctant to set trial dates, given outstanding disclosure issues and a pending JPT. Nevertheless, trial dates were held. Counsel anticipated that the jury trial of this matter would be five days “maximum”. By the time that this matter was addressed, no jury trial dates remained available prior to September 2022. When the trial coordinator offered September and October 2022, counsel for the applicant bypassed the September dates and stated that he would take “the second of those groupings.” He chose October 31 through November 4, 2022, with October 17 for jury selection. Counsel for Seabrook was in agreement.

[23] After the JPT was finally concluded, the dates that had been held on August 9, 2021 were confirmed as the trial dates on October 25, 2021. In court on November 22, 2021 the parties confirmed June 29 and 30, 2022 for a Crown voluntariness voir dire and a s. 276 application to be brought by Seabrook. The matter was adjourned to February 7, 2022, then to March 21, 2022 and finally to April 12, 2022 to appoint counsel for the complainant on Seabrook’s s. 276 application. The matter looked to be moving towards the chosen trial date.

[24] However, on May 16, 2022, Mr. O’Neill, counsel to Seabrook, brought an application to adjourn the trial, as the scheduling of an eight-week murder trial in Toronto for a client in custody necessitated either adjourning the trial date for the applicant’s trial or having Mr. O’Neill removed from the record.

[25] On the adjournment application on May 16, 2022, unchallenged evidence was given by the applicant’s mother, Tiffany Recollet, regarding actual prejudice that was being suffered by the applicant. From being an outgoing person, the applicant had become reluctant to leave his home because of people’s overtly negative attitudes towards him in public settings. He went from being a high achiever in school to wanting to quit every week. His family had relocated to Sudbury from Manitoulin Island in order to help him escape the stigma associated with the charge he was facing. Mental health issues had resulted in hospital admissions. He had fortunately failed in an attempt at suicide by overdosing on Advil. Ms. Recollet testified that at least with October trial dates there was an end in sight, whatever the result.

[26] In submissions, applicant’s counsel indicated that he was opposed to any adjournment, given the prejudice his client was suffering. The prosecutor saw that severance of the applicant from Seabrook was a possibility in the s. 11(b) context but spoke of the importance of reducing demands on the complainant to testify twice. In acknowledging the applicant’s s. 11(b) right, the Crown submitted that unless early dates could be found for the trial, the Crown opposed the adjournment. The application judge dismissed the applicant’s adjournment request, subject to evidence that the matter could be quickly rescheduled.

[27] Unsurprisingly, on June 20, 2022, counsel to Seabrook applied to be and was removed from the case. Seabrook had retained new counsel who intended to apply to adjourn the current trial date for which they were not available. The s. 276 application had to be adjourned, and the Crown indicated that it was no longer proceeding with its voluntariness application.

[28] The second adjournment application was finally dealt with on August 5 and 12, 2022. The applicant once again opposed any adjournment of the trial date, and even offered to proceed the week prior to the currently scheduled dates, if that would assist. The Crown again acknowledged the issue of delay but focused on the “plight of the complainant”, noting that the criminal justice process can create trauma and stress for sexual assault complainants. The Crown did not want to sever the two accused, which would require the complainant to testify twice. Nevertheless, the Crown would consider severance if an adjournment was granted. The application judge granted the adjournment, although the trial dates in October and November 2022 were held pending a decision by the Crown on severance. New trial dates of April 17, 2023 for jury selection, and April 24 through 28, 2023 for trial, were chosen for Seabrook, almost the first dates that were available to his new counsel and to counsel for the applicant.

[29] On August 15, 2022, Crown counsel e-mailed all counsel to advise that the Crown had decided not to sever the applicant’s charge, and that a joint trial would proceed on the April 2023 dates. The new trial dates were confirmed a week later, and on October 3, 2022 Seabrook’s s. 276 application was confirmed for February 8, and the applicant’s s. 11(b) application for February 7, 2023.

Analysis

[30] In this case, the total delay from the date of charge (July 15, 2020) to the anticipated end date of the trial (April 28, 2023) is 33 months and 14 days. The delay from the date of charge to the conclusion of the original trial (November 4, 2022) was 28 months and 20 days.

[31] In terms of deductions for defence delay, the only defence delay advanced on this application relates to the dates originally set for trial. On August 9, 2021, Mr. Keaney, counsel for the applicant, rejected the earliest offered dates for trial of September 12-16, 2022, in favour of trial dates extending from October 31 to November 4, 2022. The Crown had earlier, by e-mail, indicated its willingness to accept any available dates for trial. Accordingly, the applicant is responsible for one month and 19 days of delay.

[32] The net delay in this case is accordingly just shy of 32 months. This exceeds the presumptive ceiling by almost two months and requires the Crown to establish exceptional circumstances that would reduce the delay below the ceiling.

[33] The Crown has submitted that the delay caused by the COVID-19 pandemic is one exceptional circumstance. In the circumstances of this case, however, it was unable to point to any discrete periods of delay that were caused by adjournments of the case as a result of COVID shutdowns of the court. Instead, the Crown has resorted to the “knock on” or “domino” effect in the jurisprudence and argues that the backlog of cases on the August 9, 2021 assignment court list evidently was caused by the extended closure of the courts during the first two years of the pandemic.

[34] What strengthens the Crown’s argument in this regard is the fact that one of the other cases on the August 9, 2021 assignment court list was R. v. Peltier, 2022 ONSC 822, a case in which court shutdowns because of the pandemic occasioned two trial adjournments prior to that date (R. v. Peltier, 2022 ONSC 822, at paras. 23-36). I have been provided with no further proof than this that the other cases on the August 9, 2021 assignment court list had been delayed because of COVID-related adjournments, but my knowledge of the Gore Bay court as its local administrative judge permits me to find that to be the case.

[35] Had there not been a backlog of cases in the assignment court on August 9, 2021, it is probable that the applicant’s case could have been set to an earlier date. Trial dates as early as February 2022 were on offer in August 2021, although ultimately all of February 2022 was lost by the extended shutdown of the courts from December 17, 2021 through February 28, 2022. Nevertheless, I am prepared to find that, because of a COVID-generated backlog of cases on August 9, 2021, there was the potential for exceptional delay in this case between May 16 (the end of the first full five-day block that month) and September 16, 2022, a period of 4 months.

[36] That said, to this point, the case was managing within the Jordan deadlines, even given disclosure problems that significantly delayed the holding of the Superior Court JPT in this case. The original trial date that was set was below the ceiling, and there was no s. 11(b) application prior to the adjournment of the first trial date.

[37] The adjournment of the trial that was caused by Mr. Seabrook, in order to allow his newly retained counsel to be available, could also be capable of qualifying as an exceptional circumstance, caused by the complexity of the joint prosecution. The adjournment of the original trial date was necessitated by a factor beyond the control of the court: a scheduling conflict that ultimately took Seabrook’s counsel off the case and brought in new counsel with their own scheduling issues.

[38] But was it beyond the control of the Crown?

[39] In the context of a court beset by suspension of operations because of the perils that the pandemic represented, a trial date was found for the trial of this matter that was below the Jordan ceiling. The needs of Seabrook for representation at trial resulted in his request to adjourn the proceeding to a date past the Jordan ceiling for the applicant.

[40] Severance of the applicant’s trial from Mr. Seabrook’s was spoken of at Seabrook’s adjournment application. The original trial dates were held once new trial dates were set in order to accommodate the possibility of the applicant being tried by himself. The prosecutor indicated that the Crown would consider the severance of the applicant’s charge from Seabrook’s charges. Ultimately, it appears to have been a concern about the complainant having to testify at two trials instead of only one that drove the decision not to sever.

[41] I by no means discount the importance of prosecuting at a single trial two accused persons who are alleged to have both taken part in a single event, or of the potential for trauma to the complainant in having to testify at two jury trials. Those are completely appropriate considerations in the circumstances of this case. But they are not the only considerations. I weigh those factors against the unchallenged claims of actual prejudice being suffered by the applicant, prejudice that must only increase with the passage of time until a new trial date some six months later than the first, and above the Jordan ceiling.

[42] I conclude that the applicant’s charge should have been severed from Seabrook’s and allowed to proceed on the original trial dates. I find that the joint prosecution of the applicant and Seabrook was no longer in the interests of justice if it necessitated an adjournment that must compromise the applicant’s s. 11(b) right and unreasonably extend the prejudice that he was suffering.

[43] I further conclude that it was within the control of the Crown to eliminate further delay of the applicant’s trial past the Jordan ceiling and to prevent the violation of the applicant’s s. 11(b) right. The prosecution did not take the reasonable available step of severance to avoid and address this problem before the delay exceeded the Jordan ceiling. I therefore must reject the Crown’s submission that the circumstances of COVID-19 or of the adjournment of the trial date by Seabrook were exceptional or rebutted the presumption that the delay in this case is unreasonable.

Conclusion

[44] Accordingly, for the above reasons I find that the accused’s s. 11(b) right has been violated, and, pursuant to s. 24(1) of the Charter, a stay of proceedings must follow.

[45] The charge against the applicant is stayed.

The Honourable Mr. Justice A.D. Kurke Released: February 27, 2023