Court File and Parties

Court File No.: CR-19-70000767-0000 CR-20-70000334-0000 Date: 2023-05-09 Ontario Superior Court of Justice

Between:

HIS MAJESTY THE KING, Respondent – and – JAMAL FOGAH-PIERRE, Applicant

Counsel: Andrew Cox, for the Crown Justin W. Yuen, for the Applicant

Heard: February 16 and 17, 2023

Ruling on an Application for a Stay Pursuant to ss.11(b) and 24(1) of the Charter

B.P. O’MARRA J.

[1] The applicant applied for a stay of firearms related charges pursuant to sections 11(b) and 24(1) of the Charter. On February 17, 2023 I dismissed the application. There are my reasons.

[2] On July 22, 2019 the applicant and his co-accused Justin Hussey-Rodrigues were arrested and charged with possession of a semi-automatic handgun.

Proceedings in the Ontario Court of Justice (OCJ)

[3] The applicant made a series of unremarkable appearances in the OCJ between July 23, 2019 and December 4, 2019 inclusive. On October 24, 2019, the applicant and co-accused stated an intention to elect a jury trial in the Superior Court of Justice (SCO). On November 19, 2019, following the release of the decision in R. v. R.S. 2019 ONCA 906 the Crown arranged for both accused to appear on November 29, 2019, for the matter to be adjourned to the SCO. On November 29, 2019 counsel did not appear or provide instructions. The matter was adjourned to December 4, 2019. On that date the matter was adjourned to the SCO.

Proceedings in the SCO

[4] On December 23, 2019 the matter was spoken to in practice court. On February 14, 2020 a judicial pretrial was held and a seven-day trial was scheduled for March 15, 2021.

[5] On March 11, 2020 The World Health Organization declared COVID as a global pandemic.

[6] On March 15, 2020 Chief Justice Morawetz ordered that all criminal trials scheduled between March 17 and June 2, 2020 be adjourned.

[7] On March 31, 2020 the applicant was released on bail with house arrest conditions.

[8] On April 20, 2020 scheduled jury trials were set to not proceed before September 20, at the earliest.

[9] On May 5, 2020 the Chief Justice extended the order of March 17, 2020 to July 6, 2020.

[10] On October 9, 2020 jury trials were suspended for 28 days. Decisions as to trials in progress were left to the discretion of the trial judge.

[11] On October 14, 2020 a further judicial pretrial was held. The applicant and co-accused confirm that there will be a lost evidence application.

[12] On November 9, 2020 it was announced that jury selections would not resume in Toronto until at least November 30, 2020.

[13] On December 14, 2020 jury selection for most of Ontario was suspended until at least February 1, 2021. On January 31, 2021 that suspension was extended to May 3, 2021 at the earliest, other than for trials in progress.

[14] On March 5, 2021 counsel for the co-accused advised the applicant and Crown that he would seek to adjourn the scheduled trial because of a family medical emergency. A judicial pre-trial was held to discuss that application. Counsel for the applicant asked the Crown to sever his client for a separate trial. The Crown declined.

[15] On March 15, 2021 the trial was adjourned with the consent of the applicant and the Crown. New trial dates were set for June 20-28, 2022.

[16] On Dec 17, 2021 the SCO announced that jury selections would not proceed until February 7, 2022 at the earliest. On January 19, 2022 the SCO announced that jury selections would not proceed until February 20, 2022 at the earliest.

[17] On June 20, 2022 the trial could not commence due to the unavailability of a judge.

[18] On June 27, 2022 the matter appeared in the “Jordan court”.

[19] On June 30, 2022 the court, Crown and co-accused were prepared to set trial dates of August 22, October 31, or November 14, 2022. Counsel for the applicant was not available for any of those dates. Trial dates were set for July 10, 2023.

[20] On July 28, 2022 the matter appeared in the Jordan court. New trial dates were set for February 21-28, 2023.

[21] On January 23, 2023 the matter was adjourned to February 16, 2023 for the application pursuant to s.11(b) of the Charter.

Legal Principles

The Presumptive Ceiling

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] Defence delay will be attributed if the court and the Crown are ready to proceed and the defence is not: Jordan paras. 63-64.

[27] 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.

[28] “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.

[29] 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

[30] The total delay is 43 months and eight days.

[31] The applicant does not take issue with the 5 days between November 29 and December 4, 2019 as defence delay. The applicant also agrees that the time between January 23 and February 14, 2020 is properly labelled as exceptional circumstance since counsel for the co-accused had failed to prepare and file the form 17 required for a judicial pretrial.

[32] The two contentious time periods are the following:

[33] The trial dates set for March 12, 2021 were properly adjourned on consent of all parties based on a family medical emergency related to counsel for the co-accused. Counsel for Crown and both accused were available for a trial date in September, 2021. However, the court was not available those dates and the matter went over to June, 2022 for trial.

[34] There is no indication or suggestion that the Crown acted in bad faith in declining to sever the accused for a trial by judge alone. The two accused were found by police in a car where a gun was seized. The interests of justice required that there be a single trial of both accused.

[35] The applicant submits that the exceptional circumstance deduction related to the medical emergency in co-counsel’s family should end in September, 2021 when the court could not accommodate a new trial date. That would be approximately 6 months as an exceptional circumstance. The Crown submits that the entire period to June, 2022 should be viewed as an exceptional circumstance.

[36] The trial could not proceed in June, 2022 because of the unavailability of a judge. The Crown, co-accused and the court were available for trial dates in August, October and November, 2022. The applicant was not available for any of those dates. Ultimately trial dates were set for February, 2023.

[37] The 6 months between March 21 and September 27, 2021 are clearly properly viewed as exceptional circumstances. In pre-pandemic times the delay clock would resume counting when the court could not accommodate counsel who were all available in September, 2021. However, this case cannot be viewed in isolation and detached from the impact of the pandemic on court scheduling. In September, 2021 the court was still dealing with a back log of cases that were interrupted or postponed related to the pandemic. In my view, the deduction related to the exceptional circumstance of 6 months should be augmented by some further amount of time. A reasonable and conservative further period would be 2 months. Thus there should be a deduction of 8 months related to this exceptional circumstance.

[38] The second contentious time period relates to August 22 – February 28, 2022. The court and counsel for the co-accused were available for dates commencing in August, 2022. The applicant’s counsel was not available for those earlier dates. This time period of 6 months should be deducted from the total time to the end of trial.

[39] Based on these assessments of the two contentious time periods (14 months) and the two acknowledged time periods (25 days), the total delay is less than the presumptive ceiling. The applicant has not demonstrated that the delay, even if below the presumptive ceiling, was nevertheless unreasonable.

Result

The application is dismissed.

B.P. O’Marra J.

Released: May 09, 2023