Court File and Parties

Date: 2023-05-09 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Devante Breakenridge, Applicant

Counsel: Amanda Hauk, for the Crown David Robinson, for the Applicant

Heard: April 6 and 13, 2023

Ruling on Application for Stay

B.P. O’Marra J.

[1] The applicant sought a stay of proceedings based on sections 11(b) and 24(1) of the Charter. On April 13, 2023 I dismissed the application. [2] These are my reasons.

Overview

3The applicant was arrested on August 31, 2020. His trial is scheduled to be completed on April 28, 2023 in the Superior Court of Justice (SCO). A total of 31 months and 28 days will have passed since his arrest.

Proceedings in the Ontario Court of Justice (OCJ)

[4] On August 31, 2020 the applicant was arrested and charged with a series of offences, including possession of a prohibited firearm, possession of a firearm while prohibited, possession of cocaine and possession of fentanyl. His DNA was located on the handgun. He was co-accused with others arrested the same day. [5] The many arrests that day were based in part on search warrants that included information from confidential sources. [6] On September 3, 2020 the applicant was released on bail. [7] On October 27, 2020 the case was designated a joint prosecution. The provincial Crown would have carriage of the matters, but the federal Crown would be involved in vetting voluminous materials before disclosure could be provided to counsel. [8] The initial vetting meeting of the federal crown and member of Toronto Police Service (TPS) set for November 23, 2020 had to be postponed as Toronto went into lockdown related to the pandemic. [9] Further proceedings in the OCJ included the following: [10] On January 28, 2021 the vetting meeting between the Crown and police was held. [11] On February 22, 2021 initial disclosure (900 pages) was made to the defence. [12] On March 15, 2021 the search warrant and information to obtain (ITO) were disclosed to the defence. [13] On April 21, 2021 a second Crown pretrial was held. Counsel for the applicant was advised that his client had been severed from the larger group. Counsel for the applicant indicated that without a preliminary hearing he would not elect his mode of trial until he knew how many DNA contributors were on the firearm. [14] On June 2, 2021 a judicial pretrial was held. Counsel for the applicant confirmed he would not elect the mode of trial until he received confirmation that there were no additional DNA contributors on the firearm. [15] On June 23, 2021 the Crown confirmed that there were no additional contributors of DNA on the firearm and asked counsel for his election as to mode of trial. [16] On June 24, 2021 counsel for the applicant advised he would likely elect trial in the SCO. He would confer with his client and elect on the next court date of July 15, 2021. [17] On August 26, 2021 counsel elected trial in the SCO.

Proceedings in the SCO

[18] On September 9, 2021 the Crown contacted counsel for the applicant to set a judicial pretrial. The dates offered included October 8 and 12, 2021. Counsel for the applicant was not available for October 8 so October 12, 2021 was set. [19] On October 12, 2021 a judicial pretrial was held. It was agreed that the trial would last 7-10 days. [20] On October 21, 2021 a two week trial was set for February 21, 2023. Earlier dates in December 2022, as well as other dates in January and February 2023 were declined by the applicant’s counsel as he was unavailable. [21] On February 21 and 22, 2023 the trial could not proceed as there was not an available judge. [22] On March 8, 2023 the new trial date was set for April 17-22, 2023.

Legal Principles

The Presumptive Ceiling

[23] In Jordan, 2016 SCC 27 the Supreme Court of Canada dramatically changed the s.11(b) guidelines which had been in effect since the Supreme Court of Canada’s decision in R. v. Morin, [1992] 1 S.C.R. 771. [24] The court set a new ceiling of 30 months for offences tried by indictment beyond which delay was presumed unreasonable. Calculation of the time period required the court to identify the time accruing from the date of charge to the end of the trial (“the total delay”) and the subtraction of delay periods attributable to the defence. This leaves a “net delay” figure. [25] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. [26] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the court set out the following step-by-step approach to determine whether an accused’s s.11(b) rights had been breached: a. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. b. Subtract defence delay 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, 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. e. 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. 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. See also R. v. Gordon, 2017 ONCA 436. [27] Defence delay will be attributed if the court and the Crown are ready to proceed and the defence is not: Jordan paras. 63-64. [28] The pandemic has caused a “knock on” effect on other cases in the system and is an exceptional circumstance: R. v. Robinson, 2021 ONSC 2445 at para. 102; R. v. Hyacinthe, 2022 ONSC 1444 at paras. 17-18. [29] “No case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen, (1996), CR (5th) 347. [30] In R. v. Simmons, 2020 ONSC 7209 at paras. 69-73 Justice Nakatsuru addressed the impact of the pandemic on the court process: First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s.11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11-20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P,C,) at paras. 29 – 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23. Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It had had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling take place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81-84. Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being hear in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay. Fourth, the COVID-19 pandemic and its effects on the judicial system were not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region – which has now suspended jury trials again since October 9, 2020 – has recently extended the suspension of jury trials to January 4, 2021. In short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.

Analysis

[31] The parties agree that the total time from the date of arrest to the anticipated end of the trial is 31.89 months. For reasons that I will refer to there are certain time periods that must be deducted from the total time that take this case below the presumptive ceiling in Jordan. [32] In the OCJ counsel for the applicant deferred the election as to which level of court the trial would take place in. This specifically related to whether there were any DNA contributors on the firearm other than the applicant. By June 23, 2021 that issue was resolved. It was not until August 26, 2021 that counsel for the applicant advised the Crown by letter that the election would be for a trial in the SCO. The election was done on the record that day. [33] The DNA issue was of legitimate interest and concern to counsel before an election was made. However, the passage of time from June 23 to August 26, 2021 to complete that important procedural step must rest on the defence in the Jordan analysis. The Crown submits this delay amounts to 42 days that should be deducted from the total time to complete this trial. In my view that is a reasonable assessment. [34] The initial trial dates were set in the SCO on October 21, 2021. Counsel for the applicant was available for trial on March 7, 2022. He was not available for dates offered for December 12, 2022, January 2 and February 13, 2023. Counsel agreed to February 13, 2023 and then requested February 20, 2023 so he would have more time to prepare. The time between December 12, 2022 and February 20, 2023 is some 70 days and is fairly assessed as defence delay due to unavailability. [35] There was no judge available to preside at this trial on February 20, 2023. A new trial date was later set for April 17, 2023. [36] The total time to trial is approximately 58 days over the presumptive Jordan ceiling. From that a total of approximately 112 days must be deducted as I have outlined. Thus, the net delay is below the Jordan ceiling. Even with the first trial date not proceeding due to a lack of judicial resources the net time to trial in this case is not unreasonable. The applicant has not demonstrated that the delay, even if below the presumptive ceiling, was nevertheless unreasonable. [37] RESULT: The application is dismissed.

B. P. O’Marra J.