Court File and Parties

COURT FILE NO.: CR-21-10000003-0000 DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Monica Gharabaway for the Crown

- and -

TAL AMDURSKI THOMAS GRAFF Nate Jackson for Tal Amdurski James Mencel for Thomas Graff

HEARD: October 27, 2022

RULING ON SECTION 11(b) APPLICATION

CORRICK J.

Overview

[1] Tal Amdurski and Thomas Graff are jointly charged in a multi-count indictment with various sexual services, sexual assault and human trafficking offences involving a 13-year-old complainant. The offences are alleged to have occurred between June 1 and June 13, 2018.

[2] Mr. Amdurski was arrested on October 25, 2018. Mr. Graff was arrested on January 31, 2019. They were tried by me without a jury. The last day of their trial was November 9, 2022. By the end of the trial, a total of 48 months and 15 days had elapsed from Mr. Amdurski’s arrest, and 45 months and 9 days had elapsed from Mr. Graff’s arrest.

[3] Both defendants argue that their right to be tried within a reasonable time has been violated and seek a stay of proceedings.

[4] Following Justice D. E. Harris in R. v. Hyacinthe, 2022 ONSC 1444, I will heed the words of Justice Moldaver, and not engage in a minute accounting of each step of these proceedings, but rather take a step back from the minutiae and take a bird’s-eye view of the case: R. v. Jordan, 2016 SCC 27, at paras. 37 and 91. The defendants in this case made more than 100 court appearances. Unfortunately, s. 11(b) applications entailing a microscopic examination of every court appearance have themselves become a burden on an already overtaxed justice system, particularly post-pandemic.

[5] The method of analyzing an alleged breach of s.11(b) of the Charter is well established. The ceiling, beyond which delay is presumed to be unreasonable for a case tried in the Superior Court, is 30 months. The analysis begins with the calculation of the time from the charge to the end of the trial. Defence delay is then subtracted from this number to obtain the net delay. If the net delay is more than 30 months, the onus shifts to the Crown to rebut the presumption of unreasonable delay on the basis of exceptional circumstances. Exceptional circumstances fall into two categories: discrete, unavoidable, and unexpected events beyond the control of the Crown, and case complexity. Delay caused by discrete events is subtracted from the net delay. If the remaining delay exceeds 30 months, the court must consider whether the complexity of the case justifies the time it has taken: Jordan, at para. 105; R. v. Cody, 2017 SCC 31, at paras. 20 – 24; R. v. Coulter, 2016 ONCA 704, at paras. 34 – 39.

[6] There are three main issues in this case: first, delay caused by the defence; second, whether defence delay ought to be attributed to the defendants collectively or individually; and third, the impact of exceptional circumstances.

Defence Delay

[7] The Crown submits that the defence is responsible for three periods of delay: 1) 13 months, 28 days following Mr. Amdurski’s request for an adjournment of the preliminary hearing; 2) 5 months when Mr. Amdurski sought an adjournment of the trial to examine the complainant’s cell phone; and 3) 2 months, 17 days when Mr. Amdurski was unable to testify in person because he had COVID and was not prepared to testify by Zoom, and Mr. Graff was not willing to present his defence before Mr. Amdurski.

1. October 10, 2019 to December 9, 2020 – 13 months and 28 days.

[8] Preliminary hearing dates were scheduled for October 7 – 10, 2019. They were vacated when Mr. Amdurski discharged his counsel in September and had not retained new counsel prior to October 7. The preliminary hearing was rescheduled and ultimately concluded on December 8, 2020.

[9] Mr. Amdurski was arrested on October 25, 2018. On January 14, 2019, a preliminary hearing was scheduled for July 18, 19 and 25, 2019.

[10] Mr. Graff was arrested on January 31, 2019. He received disclosure on April 4. On April 12, a Crown pre-trial was held, during which there was some discussion about joining his matter with Mr. Amdurski’s. A judicial pre-trial for both Mr. Amdurski and Mr. Graff was held on May 16, 2019.

[11] On May 21, 2019, Crown counsel assigned to prosecute Mr. Amdurski (not Ms. Gharabaway) applied for an adjournment of the preliminary hearing scheduled for July 18, 19, and 25, 2019 on the basis that she intended to join Mr. Amdurski and Mr. Graff, and Mr. Graff’s counsel was not available for the July dates. The adjournment was granted. On May 23, 2019, the joint preliminary hearing was scheduled for four days from October 7 to 10, 2019.

[12] Between May and September 24, 2019, Mr. Amdurski and Mr. Graff made separate court appearances on separate informations. A joint information was before the court for the first time on September 24, 2019. On that day, Mr. Amdurski indicated that he had discharged his counsel, and required an adjournment of the preliminary hearing to retain new counsel.

[13] Mr. Graff’s counsel objected to the adjournment and suggested that the October dates be used for Mr. Graff’s preliminary hearing. The Crown refused and told the court that, “any delay with respect to Mr. Graff is attributable to the Crown because it’s my decision to continue prosecuting them together.” The matter was adjourned to September 27, 2019 for an update on Mr. Amdurski’s efforts to retain new counsel.

[14] On September 27, Mr. Amdurski had not retained counsel. As a result, the Crown asked the court to vacate the October preliminary hearing dates. Counsel for Mr. Graff objected and again suggested that Mr. Graff’s preliminary hearing proceed on October 7, 2019, as scheduled. Crown counsel indicated that she would not sever Mr. Graff because she did not want the complainant, who was vulnerable, to have to testify more than once about the same allegations. She went on to say, “So, clearly any delay with respect to Mr. Graff’s preliminary hearing moving forward would be at the feet of the Crown in these circumstances, ‘cause I’m deciding to keep them together, and I acknowledge that… .”

[15] The matter returned to court on October 4, 11, and 25, 2019. The court’s interaction with Mr. Graff’s counsel on those dates is not transcribed in the transcripts filed on this application. The October 11 transcript indicates that Mr. Graff’s counsel requested that dates for a preliminary hearing be set. They were not.

[16] Following a judicial pre-trial held on December 16, 2019, it was agreed that four days were required to complete the preliminary hearing. The first date offered by Mr. Amdurski’s counsel was January 28, 2020. The first date offered by the court was June 18, 2020. On December 30, 2019, the preliminary hearing was scheduled for June 29 and 30 and July 8 and 9, 2020.

[17] At this point, I want to deal with Mr. Jackson’s submission that Mr. Amdurski is responsible only for the delay from the expected conclusion of the hearing on October 10, 2019 to the first date he was available to conduct the hearing, which was January 28, 2020. He has not cited any authority in support of this submission, and the submission flies in the face of R. v. Grant, 2022 ONCA 337, in which the court writes at para. 41, “… to limit the inquiry into the amount of defence delay only to the “front-end” delay in the start of the preliminary inquiry would be an artificial exercise as it would ignore the larger ripple effect an adjournment could work on the “back-end” conclusion of a preliminary inquiry … .”

[18] In this case, as in Grant, the ripple effect of Mr. Amdurski’s adjournment request in September 2019 was to push back the conclusion of the preliminary inquiry from October 10, 2019 to December 9, 2020. However, not all of that delay was caused solely by Mr. Amdurski’s adjournment request and must therefore be deducted from the total delay: Jordan, at para. 63. Three other events intervened – the pandemic, the dispute about the complainant’s support person, and Justice Felix’s unavailability on one of the scheduled dates.

[19] The COVID-19 pandemic prevented the preliminary inquiry from being heard on June 29 and 30, 2020 because the court was closed. It began before Justice Felix on July 8, 2020. It did not have an auspicious start. At the outset, Crown counsel, who was now Ms. Gharabaway, indicated that the complainant would be testifying from a CCTV room and would have a support person present with her during her evidence. The Crown had not filed a formal application with the court because defence counsel had previously indicated that they had no objections to that manner of proceeding. When the Crown indicated the name of the support person to the court, defence counsel objected on the basis that the support person was a potential witness.

[20] The proposed support person, Ms. Moore, worked with a group that advocates on behalf of victims of human trafficking. The disclosure provided to defence counsel indicated that she had spoken to the complainant, who had been reluctant to speak to the police about the allegations. The complainant eventually came forward to the police after speaking to Ms. Moore. When defence counsel agreed to the presence of a support person, they had erroneously assumed that it would be someone from the Victim Witness Program.

[21] Ms. Gharabaway asked for a brief adjournment to file a formal application. Defence counsel opposed the request. Justice Felix granted the adjournment to the following day, July 9, when he heard the application. After making submissions, counsel agreed that Ms. Moore would testify before the complainant at the preliminary inquiry. Her potential as a material witness would then be known, and Justice Felix would be in a position to rule on her suitability as a support person. Justice Felix agreed with that approach.

[22] Counsel were able to schedule more time on the afternoon of July 10 to continue the preliminary hearing. Ms. Moore testified and denied discussing the allegations with the complainant. As a result, defence counsel conceded the support person application. However, on November 5, 2020, the complainant contradicted Ms. Moore and, as a result, Justice Felix excluded her as a support person.

[23] I described these events in some detail to demonstrate that defence counsel’s objections were not frivolous.

[24] It was clear that the preliminary hearing would not be completed within the scheduled time. Although all counsel were available to continue on dates in July and August, “J” court was not available. (I assume that “J” court was required to accommodate a witness testifying from the CCTV room). The hearing was adjourned to September 15, 2020.

[25] Mr. Jackson was concerned that the examination of the complainant would take more than one day and requested that a further day be scheduled. Following a pre-trial with Justice Felix, an additional date of September 16, 2020 was secured.

[26] On September 15, the complainant completed her examination-in-chief. Due to a scheduling error made by Justice Felix, he was not available on September 16, and the matter was adjourned to November 5, 2020.

[27] The evidence was completed on November 5. On November 12, Mr. Graff’s counsel advised the Crown that he was conceding committal. Submissions were made on behalf of Mr. Amdurski on December 8, and committal was ordered.

[28] The delay occasioned by the pandemic, the litigation of the support person issue, and the scheduling error made by the judge should not be apportioned to Mr. Amdurski as a result of his adjournment request. I accept that the preliminary hearing was conducted over a longer period of time as a result of the adjournment. However, part of that delay was due to other factors.

[29] The preliminary hearing was originally scheduled for four days. The first two days were eliminated by the pandemic. This alone would have required the continuation of the matter beyond the scheduled time. It is difficult to imagine a more exceptional circumstance than the COVID pandemic.

[30] Defence counsel argued that the Crown’s failure to file a formal support person application was not an exceptional circumstance. I do not accept that. When reviewing a process in hindsight, it is easy to highlight deficiencies that ultimately caused delay, but which at the time were uncontroversial and the result of the cooperation among experienced advocates.

[31] Prior to the preliminary hearing, the matter was pre-tried before Justice Hogan at least three times. Counsel had been discussing the issues and were co-operating. At the outset of the preliminary hearing, Ms. Gharabaway indicated that counsel had agreed that the hearing could proceed in the absence of Mr. Graff (who is a resident of the United States), that the complainant could testify remotely from the CCTV room and have a support person with her. Mr. Mencel had not filed a formal application to have the matter proceed in Mr. Graff’s absence. Similarly, Ms. Gharabaway had not filed formal applications to have the complainant testify remotely or to have a support person. Defence counsel had not asked who the support person was and assumed it would be someone from VWAP. Once it was clear that there was an issue, Mr. Gharabaway filed a formal application with materials overnight, and the matter was argued the next day.

[32] In my view, this is precisely the kind of event envisioned by Justice Moldaver when he wrote, “Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to go quickly awry, leading to delay...” R. v. Jordan, at para. 73.

[33] This issue would have arisen whether the preliminary hearing took place in October 2019 or in July 2020. I have already indicated that the actions taken by the defence on this issue were not frivolous, and the delay occasioned by them will not be counted as defence delay.

[34] The scheduling error made by the preliminary hearing judge will not counted against the defence. The judge was not available on the scheduled date of September 16, 2020. Had he been, the evidence would have been completed that day and submissions would have been made on November 5. Instead, the evidence was completed on November 5, and submissions were made on December 8. The defence is not responsible for the 33-day delay between November 5 and December 8, 2020.

Conclusion On Delay Between October 10, 2019 and December 9, 2020

[35] The defence is responsible for the delay between October 10, 2019 and June 28, 2020, a period of 263 days or 8 months and 19 days.

[36] The delay between June 29, 2020 and November 5, 2020 was caused by discrete exceptional events and will be subtracted from the total period of delay to determine whether the ceiling established by Jordan has been exceeded. This amounts to 130 days or 4 months and 8 days.

2. March 23, 2022 to August 24, 2022 – 5 months.

[37] On January 18, 2021, the matter was scheduled for a 2½ week jury trial commencing March 7, 2022, which was the court’s first available date. The expected completion date was March 23, 2022. At the outset of the trial, Mr. Amdurski sought a brief adjournment to receive and review outstanding disclosure and to bring a formal application pursuant to s. 605 of the Criminal Code to have the complainant’s cell phone released for the purpose of examination.

[38] I granted the adjournment and ultimately the s. 605 application. As a result, I did not start to hear evidence in the trial until March 21. The trial did not finish within the scheduled time and was adjourned to August 4, 2022.

[39] Several pre-trial motions were heard by Justice Molloy on February 17, 18, 24, 25 and March 4, 2022. This did not cause any delay in the trial. Ms. Gharabaway submits that the s. 605 application should have been brought before Justice Molloy rather than on the first day of trial. Having failed to do that, the defence is responsible for the delay between March 23, 2022, the expected completion date and August 24, 2022, the next anticipated completion date.

[40] I do not agree with Ms. Gharabaway that this delay is attributable to the defence.

[41] Some background about the relevance of the phone and the police handling of it is necessary to understand my conclusion.

[42] The police began investigating Mr. Amdurski after the complainant’s mother found messages on the complainant’s iPhone 4 that indicated that she was involved in sex work. The text messages were between the complainant and Mr. Amdurski.

[43] On June 15, 2018, the police seized the complainant’s iPhone4 and iPhone 6, downloaded their contents, and returned them to the complainant’s mother on September 4, 2018.

[44] The downloads had not been disclosed to the defence prior to the committal to trial. Mr. Jackson noted them as missing disclosure when he filed a Form-17 on December 31, 2020, in advance of a judicial pre-trial in the Superior Court. The missing downloads were discussed at the judicial pre-trial on January 4, 2021.

[45] At the preliminary hearing, counsel had agreed to examine the complainant’s mother at a discovery hearing rather than delay the preliminary hearing any further. The discovery took place on April 23, 2021. The complainant’s mother testified that she still had possession of the iPhone 4 and had not deleted anything from it. She agreed to allow the police to look at it again if they wanted.

[46] On the same day, Mr. Jackson emailed the Crown and asked her to make efforts to preserve the iPhone 4 and to confirm that the police had the downloaded contents of the complainant’s phones. Ms. Gharabaway replied on April 26, 2021 that she had asked the officer in charge to preserve the iPhone 4. She did not address whether the police had the downloaded contents of the phone.

[47] Mr. Jackson followed up on his request for confirmation by emailing Ms. Gharabaway on April 26, May 10, May 19, and June 4, 2021. Ms. Gharabaway replied to the emails saying that she was waiting for answers from the officer in charge.

[48] On June 13, 2021, Ms. Gharabaway replied, advising that the officer in charge had been unable to locate the downloads but was making further inquiries.

[49] On August 22, 2021, Mr. Jackson emailed Ms. Gharabaway, following up on the missing downloads. On September 30, Ms. Gharabaway replied that the downloads had not been found, and that the complainant’s mother had the phone and had not made any changes to it.

[50] On December 7, 2021, Mr. Jackson requested in an email to the Crown that the police reseize the iPhone 4 as the downloads were still missing.

[51] On December 15, 2021, the Crown informed defence counsel by email that the downloads were lost. This was the first time the defence had been told that the downloads were lost.

[52] On January 6, 2022, Mr. Jackson emailed the Crown and asked again that the police reseize the phone. He followed up on that request on January 28 and February 14. On February 15, 2022, Ms. Gharabaway emailed defence counsel and informed them that the phone had been seized but had been restored to factory settings.

[53] On February 21, 2022, Ms. Gharabaway emailed the notes of Detective Zeppieri to defence counsel. The notes revealed the possibility that the date and time the phone was wiped could be determined by the “tech crimes” unit, but that such an analysis required a letter from the Crown.

[54] On February 24, 2022, Mr. Jackson emailed Ms. Gharabaway and asked whether “tech crimes” would be analyzing the phone and, if so, when. Ms. Gharabaway replied that she would ask the officer in charge to inquire and would ensure that “tech crimes” knew that it was a high priority given the upcoming trial.

[55] On February 25, 2022, Mr. Jackson emailed Ms. Gharabaway to follow up on whether the phone was going to be analyzed further. On March 6, 2022, the day before the trial was scheduled to commence, Ms. Gharabaway replied that she had forwarded Mr. Jackson’s email to the officer in charge. In the afternoon of March 6, Mr. Jackson informed Ms. Gharabaway that he intended to bring a s. 605 application to have his own expert examine the phone.

[56] Mr. Jackson raised the matter of outstanding disclosure and the s. 605 application on March 7. I adjourned the matter to March 9 to allow him to bring a formal application so that counsel for the complainant could be contacted, and the Crown could respond.

[57] On March 9, I heard argument from Crown and defence counsel and counsel for the complainant. In the afternoon, I granted the s. 605 application and ordered the phone released to Mr. Jackson’s expert. On March 10, I was advised that the building where the phone was located was locked down because of a COVID outbreak, and the phone could not be delivered before March 14.

[58] On March 17, the defence expert and “tech crimes” had completed their examination on the phone and defence counsel were prepared to start the trial the next day. The complainant, however, was not available until March 21.

[59] I do not accept Ms. Gharabaway’s submission that Mr. Amdurski’s s. 605 application should have been brought before Justice Molloy when they were before her arguing several pre-trial motions on February 17, 18, 24, 25 and March 4, 2022. The police reseized the phone on February 3, 2022, but Mr. Jackson was not informed until February 15, 2022 when he was also informed that it had been reset to factory settings. It was not until February 21, when he received disclosure of Detective Zeppieri’s notes, that Mr. Jackson learned that further action could be taken to determine when the phone was reset to factory settings. Upon learning this, on February 22 he asked the Crown whether any action would be undertaken to determine when the phone was wiped. He was concerned about this issue because he had the sworn evidence of the complainant’s mother that she had not altered the phone. At this point, Mr. Jackson was well into the pre-trial applications before Justice Molloy that had been scheduled months in advance. He repeated his request in emails to the Crown on February 24 and 25. As late as the day before the trial, the Crown indicated that she would ask the officer in charge to look into the matter.

Conclusion On Delay Between March 23, 2022 and August 24, 2022

[60] The s. 605 application brought by Mr. Jackson was a legitimate action taken in response to the police and Crown inaction. The timing of his application was unfortunate, but unavoidable. The five-month period of delay between March 23, 2022 and August 24, 2022 is not defence delay.

3. August 24, 2022 to November 10, 2022 – 2 months and 17 days.

[61] The trial was scheduled to continue on August 22, 23 and 24, 2022. Mr. Amdurski tested positive for COVID on August 18, 2022 and was still positive on August 22. Ms. Gharabaway consented to Mr. Amdurski appearing by Zoom to avoid delaying the trial.

[62] The Crown closed her case on August 22, 2022. Both defence counsel indicated that they were seeking directed verdicts of acquittal on some counts. The matter was adjourned to August 23 for argument. It was not expected to take more than half a day.

[63] Prior to adjourning for the day, counsel canvassed the use that could be made of the remaining day and one-half remaining in the scheduled time. Both defence counsel indicated that their clients were going to testify. Although earlier in the trial Ms. Gharabaway had indicated that she wanted to cross-examine Mr. Amdurski in person, in the interests of preventing further delay, she was prepared to do it by Zoom. Mr. Amdurski however, wanted to testify in person, and that was not going to be possible by August 24.

[64] Ms. Gharabaway suggested that the remaining court time could be used if Mr. Graff called evidence first despite being second on the indictment. Mr. Graff did not accept that suggestion.

[65] On August 23, the Crown withdrew one count against Mr. Amdurski, and I heard argument on Mr. Graff’s directed verdict application. The matter was adjourned to September 8 for my ruling on the directed verdict application and for a hearing of this s. 11(b) application. Further dates of November 1 to 4 and 8 to 10, 2022 were scheduled for the continuation of the trial.

[66] The hearing of the s.11(b) application was adjourned from September 8 to October 27 because Mr. Mencel was unable to file his material as scheduled because he had contracted COVID.

[67] The trial finished on November 9, 2022.

Conclusion On Delay Between August 24, 2022 and November 9, 2022

[68] In my view, the delay between August 24 and November 9, 2022 of 2 months and 17 days is most appropriately characterized as delay occasioned by COVID, an exceptional circumstance.

Allocation of Defence Delay Between Defendants

[69] I have attributed 8 months and 19 days of delay to the defence as a result of Mr. Amdurski’s request to adjourn the second scheduled preliminary hearing date. Ms. Gharabaway submits that the period of defence delay should be attributed to both defendants because they proceeded through the case as a collective, endorsing each other’s actions throughout.

[70] She relies on several decisions in support of her submission: R. v. Albinowski, 2018 ONCA 1084; R. v. Brissett, 2019 ONCA 11; R. v. Robinson, 2021 ONSC 2445. In each of those cases, the court held that the delay caused by one defendant counted against the others because they moved collectively through the system.

[71] There are important distinguishing features of Mr. Graff’s situation from those in the cases referred to by Ms. Gharabaway. In those cases, some of the delays at issue were caused by scheduling challenges often present in cases of multiple defendants. There were three defendants in Albinowski, four in Robinson for the first year of the proceedings, and five in Brissett: see trial judge’s reasons at R. v. Brissett, 2017 ONSC 401.

[72] In Albinowski, the delay at issue was entirely due to the difficulties coordinating the schedules of three defence counsel at every stage of the process. This was not a significant issue in this case.

[73] In Brissett, when one counsel sought a four-month delay in setting a trial date, the other defendants acquiesced without raising any s.11(b) concerns. In contrast, Mr. Graff objected to the adjournment of the preliminary hearing scheduled in October 2019, and on subsequent dates asserted his s.11(b) rights, asking that a new date be scheduled.

[74] In Albinowski and Brissett, the defendants moved together from the start of the process. Mr. Graff and Mr. Amdurski had not been moving as a collective through the system before the October 2019 preliminary hearing dates were vacated on May 21, 2019. As late as May 6, 2019, the original July preliminary hearing dates for Mr. Amdurski were confirmed on the record. Mr. Graff’s matter did not appear together with Mr. Amdurski before May 21, 2019.

[75] The trial decision in Brissett preceded the Court of Appeal’s decision in R. v. Gopie, 2017 ONCA 728 in which Justice Gillese analyzed how delay caused by the actions of a co-accused should be treated in a s. 11(b) analysis. She found that an individualized approach to the attribution of defence delay was consistent with the approach to defence delay taken in Jordan and Cody, which directs an assessment of whether the accused’s acts solely or directly caused delay. I note that the application judge in Robinson did not refer to Gopie.

[76] I acknowledge that the Crown made the decision to join Mr. Graff and Mr. Amdurski for good public interest reasons. However, that decision must be balanced against Mr. Graff’s right to a trial within a reasonable time. The fact that Mr. Graff did not apply for severance does not factor into my conclusion. I agree with Mr. Mencel that such an application was bound to fail and would have created further delay: see R. v. Campbell, 2022 ONCA 223. On two occasions, counsel for Mr. Graff suggested that the Crown not proceed with a joint trial, and use the October preliminary hearing dates for Mr. Graff’s preliminary hearing. This suggestion was rejected by Crown counsel.

[77] Mr. Graff did everything possible to move his trial through the process expeditiously. He was represented by counsel from his first court appearance, he requested disclosure promptly, he agreed to early dates and made reasonable concessions. He conceded committal and suggested that the evidence of the complainant’s mother be heard at a discovery hearing rather than prolong the preliminary hearing. The evidence relevant to the charges against him is a small part of the overall Crown case. He was held hostage to Mr. Amdurski’s request. Yet, the Crown argues that the delay requested by Mr. Amdurski, and ultimately granted by the court, must be visited on Mr. Graff.

[78] An important fact that I have considered is that Ms. Gharabaway’s submission that I attribute the delay caused by the adjournment of the October preliminary hearing dates to Mr. Graff is made contrary to a concession made by the Crown who had carriage of this matter before Ms. Gharabaway that responsibility for this delay vis-à-vis Mr. Graff fell at the feet of the Crown. On September 24, 2019 and again on September 27, 2019, experienced Crown counsel prosecuting the case at the time stated that the delay caused to Mr. Graff by the adjournment of the preliminary hearing set for October 2019 was attributable to the Crown as it was her decision to continue with a joint prosecution notwithstanding the delay. Now that matters have not unfolded as anticipated, and the prosecution is at risk, it is not appropriate to accept a different Crown’s submission that the delay is attributable to Mr. Graff.

[79] The Crown points out that Mr. Mencel was unavailable to represent Mr. Graff at the first date scheduled for the preliminary hearing of July 18, 2019. However, it was not until May 21, 2019 that the Crown formally indicated to the court her intention to join Mr. Graff’s matter with Mr. Amdurski’s, although it had been discussed at a judicial pre-trial held on May 16, 2019. It is not unreasonable that Mr. Mencel was not available within two months. I find that the delay was caused by the Crown’s decision to join the matters, and nothing else.

[80] For the reasons I have stated, I will not attribute the 8 months and 19 days of defence delay to Mr. Graff. That leaves the net delay for Mr. Graff at 45 months and 9 days, and 39 months and 26 days for Mr. Amdurski.

Exceptional Circumstances

[81] Two categories are covered by exceptional circumstances: 1) discrete events that are outside the Crown’s control, and 2) cases that are particularly complex. Ms. Gharabaway submits that both categories are present in this case.

[82] It is well established that the COVID pandemic is an exceptional circumstance within the meaning of that term as defined in Jordan: See for example, R. v. White and Malhi, 2023 ONSC 7; R. v. Hyacinthe, 2022 ONSC 1444; R. v. Shen, 2022 ONSC 3274.

[83] Defence counsel argues that there is no evidence that the pandemic resulted in anything more than a few weeks delay in this case. This argument ignores the enormous disruption to the normal workings of the administration of justice caused by the pandemic. It also overlooks the role COVID played in this trial in particular.

[84] With respect to this trial, COVID reared its head on several occasions disrupting the orderly flow of the process:

• The first two days of the preliminary hearing scheduled on June 29 and 30, 2020 were lost because the courts were closed due to the pandemic.
• On March 9, 2022, I ordered that the complainant’s cell phone be released to defence counsel for testing. The phone was stored in the “tech crimes” building that was locked down because of a COVID outbreak. The phone could not be retrieved until March 14.
• On March 28, 2022, continuing trial dates were set for August 4, 5, 22, 23, and 24, 2022. Shortly thereafter, Mr. Mencel notified the court that his schedule had changed, and he was available from June 27 to 30, 2022, a time that was available to the court and the other counsel. The continuation dates were reset for the earlier dates. On June 16, Ms. Gharabaway requested an adjournment of those dates because she was involved in a jury trial that was scheduled to end on April 29, 2022, but was still ongoing. Why had the trial not concluded as scheduled? In part, because three of the four lawyers contracted COVID and the defendants, two of whom were in custody, had been on COVID protocol multiple times. This resulted in a delay of 1 month and 9 days between June 27 and August 4, 2022, attributable to COVID, which must be deducted from the net delay.
• This s. 11(b) application was originally scheduled for September 8, 2022. Mr. Mencel was unable to file his material by the scheduled deadline because he had contracted COVID.
• Mr. Amdurski contracted COVID and was unable to attend court in person for the continuation of the trial on August 22, 23 and 24. He wished to testify in person. The court was unable to make use of 1.5 days of court time.

[85] In addition to these specific incidents, COVID had created a backlog of cases by the time this case reached the Superior Court of Justice on January 11, 2021. This matter was scheduled for trial before a jury. In the Toronto Region, jury trials were suspended three times for a total of 15 months due to COVID as follows:

• from March 17 to September 14, 2020
• from November 21, 2020 to June 21, 2021
• from December 20, 2021 to February 28, 2022

[86] People who had a jury trial scheduled during those dates had their trial adjourned. This placed an enormous amount of stress on the administration of justice. In addition, new cases continued to flow into the system despite the suspension of jury trials, contributing further to the stress. Even when the suspensions were lifted, health mandates such as social distancing, meant that fewer jury trials than in pre-pandemic times could be conducted. Every jury trial required two courtrooms to permit jurors to remain socially distanced while deliberating.

[87] Courts were required to prioritize the scheduling of cases. Obviously, priority was given to people in custody awaiting their trial. Mr. Amdurski and Mr. Graff were out of custody. On January 21, 2021, they set a date for a 2½-week jury trial commencing March 8, 2022, a delay of 15 months. March 8, 2022 was the first date available to the court. All counsel were available on many dates before that. A fifteen-month delay to accommodate a 2½-week jury trial was longer than normal in the Toronto Region. In the absence of any other reason for this longer than normal delay, I find that the pandemic contributed to it.

[88] The question is how much of the 15-month delay is attributable to the pandemic backlog. Trials are not scheduled immediately after the first appearance. There is always some delay. The entire 15 months is not attributable to the pandemic. Recently, Justice Nakatsuru attributed 10 months of delay to the pandemic when considering a 19-month delay between the first appearance and the trial date for a four-week jury trial in Toronto: R. v. White and Malhi, 2023 ONSC 7, at para. 36. He thus considered nine months to be the usual delay between the first appearance and the trial date. In my view, this was a generous estimate for a four-week jury trial. It is, however, a reasonable estimate of the usual delay for a 2½-week trial. In Toronto, the shorter the trial, the easier and quicker it is to accommodate into the trial schedule. Thus, I find that 6 months of the 15-month delay is attributable to the pandemic.

[89] I have concluded that a delay of 14 months and 4 days is attributable to exceptional circumstances as follows:

• 4 months, 8 days when the preliminary hearing was delayed over the complainant’s support person
• 2 months, 17 days when Mr. Amdurski was ill and unable to attend court in person
• 1 month, 9 days when Ms. Gharabaway had to adjourn the scheduled trial date because another trial she was prosecuting was delayed by reason of COVID
• 6 months for the delay in scheduling the trial date.

[90] The Crown and the court could not have reasonably mitigated any of this delay. I am satisfied that all counsel did their best to expedite this matter. They conducted this trial in a cooperative manner making admissions and concessions where possible. Ms. Gharabaway responded to applications from defence, such as applications for directed verdicts and the s. 605 application overnight. Similarly, defence counsel reviewed late disclosure overnight. I changed my summer vacation schedule to accommodate counsel’s availability.

[91] The impact of the COVID-19 pandemic on the criminal justice system has been so extensive that there is little room left for mitigation.

[92] Ms. Gharabaway argues that any delay the court finds that exceeds the 30-month Jordan ceiling can be justified by the complexity of this case. She argues that it is recognized that multiple accused increase the complexity of the case and require extra time to schedule and to conduct. She further argues that the manner in which the defendants have litigated this trial has injected a degree of complexity into the proceedings. She points to Mr. Amdurski’s s. 605 application.

[93] With respect, I do not accept that this was a complex case. In Jordan, at para. 77, Justice Moldaver described this category of exceptional circumstances as “cases that are particularly complex.” Justice Moldaver went on to give some examples of particularly complex cases. They included cases involving voluminous disclosure, a large number of witnesses or charges, expert evidence, charges covering a lengthy period of time, novel or complicated legal issues, or a large number of issues in dispute. Prosecuting multiple co-accused may also impact a case’s complexity.

[94] The charges against Mr. Amdurski relate to events that are alleged to have occurred between June 1 and 13, 2018. The charges against Mr. Graff relate to events that are alleged to have occurred on June 7, 2018. The Crown’s case is based on the evidence of the complainant, her mother and a police officer. One further civilian witness testified for less than an hour. A second police officer was called in anticipation of a lost evidence application that Mr. Jackson has indicated he will bring after the verdict. That officer testified about the loss of the downloaded contents of the complainant’s cell phone. In total, I heard six full days of evidence for the Crown. Both defendants testified.

[95] Although there are two defendants in this case, there have been very few difficulties finding common dates to schedule matters. The presence of two defendants has not added complexity to this trial.

[96] The complexity alleged by Ms. Gharabaway was caused by delayed disclosure of the downloaded contents of the complainant’s phone, delayed disclosure of the fact that the contents had been lost and a delayed response to Mr. Jackson’s request to have the phone examined.

[97] “Complexity is an exceptional circumstance only where the case as a whole is particularly complex:” Cody, at para. 64. This case does not meet that criterion.

Conclusion

[98] The delay faced by Mr. Amdurski from charge to the end of trial is 48 months and 15 days. After accounting for defence delay of 8 months and 19 days and delay of 14 months and 4 days for exceptional circumstances, the remaining delay is 25 months and 22 days. This is under the 30-month Jordan ceiling. His application is therefore dismissed.

[99] The delay faced by Mr. Graff from charge to the end of trial is 45 months and 9 days. After accounting for delay of 14 months and 4 days for exceptional circumstances, the remaining delay is 31 months and 5 days. This exceeds the 30-month Jordan ceiling. His right to be tried within a reasonable time has been infringed. The charges against him are stayed.

Corrick J.

Released: January 11, 2023