Court File and Parties

Court File No.: CR-22-70000098-0000 Date: 2023-04-26 Ontario Superior Court of Justice

Between: His Majesty The King – and – Joshua Joseph and Adriel Rodrigues Applicants

Counsel: David Spence, for the Crown Rachel Lichtman, for Joshua Joseph Ashley Dresser, for Adriel Rodrigues

Heard: March 30, 2023

A.J. O’Marra J.

Endorsement

[1] The Applicants, Joshua Joseph and Adriel Rodrigues have brought an application for an order of the court to stay proceedings as against them on the basis that their rights to be tried within a reasonable time, as guaranteed under s. 11(b) of the Charter of Rights and Freedoms, has been infringed due to unreasonable delay.

[2] The applicant Joshua Joseph was arrested and charged with the offences of attempted murder, robbery with an offensive weapon and carrying a concealed weapon on September 20, 2020. The applicant, co-accused Adriel Rodrigues was arrested and charged with attempted murder, possession of a loaded prohibited firearm and other related offences on September 23, 2020, arising from the same incident.

[3] The applicants jointly charged have their trial scheduled for two weeks to commence May 22, 2023, with an anticipated conclusion by June 3, 2023. Accordingly, the time from their being charged until the anticipated conclusion of the trial is approximately 32 months.

[4] In R. v. Jordan, 2016 SCC 27 the Supreme Court set presumptive time periods with which an accused is to be brought to trial. In the Provincial Court, the timeframe is 18 months and 30 months for those matters being tried in the Superior Court. With respect to the latter any delay in excess of 30 months is presumptively unreasonable.

[5] In cases where the total delay, less delays either by waiver, express or implied by the defence or exclusively caused by the defence, exceeds the presumptive ceiling of 30 months the onus then shifts to the Crown to demonstrate that the delay was nevertheless reasonable due to exemptional circumstances.

[6] Particularly complex matters or discrete events that lie outside the Crown’s control as being reasonably unforeseen or unavoidable, and which delay the Crown could not have remedied due to those exceptional circumstances, is subtracted from the total delay to determine whether the presumptive ceiling has been exceeded.

[7] In this case, the date, which has come to be known as the “Jordan date”, is March 23, 2023. With the anticipated conclusion of the trial as June 3, 2023, the presumptive ceiling is exceeded by approximately 2.3 months.

Brief Summary of the Allegations

[8] On September 19, 2020, it is alleged that the complainant, Richie Persaud attended an apartment at 1 Massey Square in Toronto to complete an exchange of merchandise with a person alleged to be Mr. Joseph and another person alleged to be Mr. Rodrigues. A disagreement arose which resulted in the applicants allegedly assaulting Mr. Persaud, by stabbing him with a knife and screwdriver in the neck, abdomen, leg, armpit and back. Further, it is alleged that the applicants took the complainant’s Ray-Ban glasses, black Nike windbreaker, Gucci side bag, gold Fossil watch, EarPods, a gold chain and $1,098.00.

[9] The complainant Persaud gave four recorded statements to the police. In the first statement the applicant Joshua Joseph was identified as the person with the screwdriver, which led to his arrest on September 20, 2020.

[10] Subsequently Mr. Persaud provided information that he had heard that the second person was referred to as Pablo, which the police determined was an alias for the applicant, Rodrigues, an associate of Joshua Joseph.

[11] On September 23, 2020, the police obtained an authorization to search the home of applicant Rodrigues where they located the complainant’s identification within a wallet, a newer Gucci satchel alleged to have been taken from Mr. Persaud. Further, a screwdriver was located under a couch cushion. In an enclosed balcony the police located a firearm in a Gucci satchel and in the same area in a zipped-up satchel 14 grams of cocaine, an ammunition press, smokeless powder, shell casings and pistol primers.

Overview of Proceedings

i) Ontario Court of Justice

[12] The applicant Joseph was released on bail on September 22, 2020. The applicant Rodrigues was detained and held in custody until his release on June 9, 2022.

[13] By early December 2020 initial disclosure was provided to counsel for the applicants, however, there was a lengthy list of missing disclosure which included the 911 call, cellphone records, extractions from seized cellphones, all the involved officers notes, all SOCO photographs, the complainant’s medical reports, the complainant’s statements, all witness statements, any CCTV footage, booking videos, in-car camera videos, DNA reports, copies of all photos in the Information to Obtain affidavit to the search warrant and copies of photographs used to identify the applicants.

[14] On January 7, 2021, counsel for applicant Joseph conducted a Crown Pre-trial (CPT) with the assigned Crown, David Spence at which time missing disclosure was discussed. Throughout March 2021 additional disclosure, as requested was supplied to counsel for the applicants.

[15] On March 19 counsel for applicant Rodrigues, Ashley Dresser was retained, replacing earlier counsel. On April 13, 2021, defence counsel and the Crown were available to schedule a judicial pretrial on May 11, 2021.

[16] On May 11, 2021, all counsel appeared before Justice Rutherford for a judicial pretrial at which time five days were approved for a preliminary inquiry. The trial coordinator offered dates of July 26-30, 2021, an in-custody date for the preliminary inquiry. None of the parties were available on those dates. The next available date was September 13-17, 2021, which was available to the Crown and counsel for applicant Rodrigues, however not for applicant Joseph’s counsel.

[17] The next date during which all counsel were available November 29-December 3, 2021, was set for the preliminary inquiry. There was some delay to setting the date due to the delay in the Crown providing disclosure to the applicants.

[18] At the start of the preliminary inquiry the Crown called the complainant as its first witness, however, before his evidence was completed, the Crown notified defence counsel that a police officer scheduled for that day, DC Akie was not available on any of the other scheduled preliminary inquiry dates. Counsel agreed to switch to his evidence in order to accommodate him but unfortunately his evidence was also not completed. All counsel agreed that his evidence could be completed by way of discovery on a later date and that his evidence was not necessary for committal. The applicants were committed for trial in Superior Court on January 18, 2022, approximately 15.5 months from the date of their arrests.

[19] February 22, 2022 was offered as the discovery date for the continuation of DC Akie’s evidence, however, counsel for the applicant Joseph was not available. The discovery date was set for May 20, 2022, a date all parties and the presiding justice were available.

ii) Superior Court of Justice

[20] After committal on January 18, 2022, the matter was traversed to the Superior Court. On February 7, 2022, the parties scheduled a Superior Court judicial pretrial for February 17, 2022. On February 17, 2022, counsel for the applicants and Crown conducted a judicial pretrial before Justice Roberts at which time the parties indicated they would elect to be tried by a judge alone. Further, counsel for Rodrigues advised there would be a pretrial s. 8 Charter application with respect to the search authorization.

[21] On February 23, 2022, the court offered May 9, 2022, for trial, however DC Akies’ evidence had not been completed, which was considered necessary for the applicant Rodrigues’ intended s. 8 Charter application. Counsel indicated their availability for a two-week trial any time between February 13 and March 10, 2023, however the Crown was not and there was no indication that the court had time available during that period. The trial coordinator scheduled the trial to begin November 27, 2022, 39 months post arrest of the applicants.

[22] On February 28, 2022, both applicants through counsel voiced concerns about the delay. On March 9, 2022, at another judicial pretrial before Justice Roberts it was agreed that a day would be required for the s. 11(b) application.

[23] On March 13, 2022, the s. 11(b) application was scheduled to be heard March 30, 2023, the earliest date offered through the trial coordinator’s office. The s. 8 Charter application was scheduled to be heard on June 15 and 16, 2023.

[24] On April 13, 2022, Crown, Spence emailed counsel for the applicants and advised that two weeks were available beginning December 12, 2022, for trial. Counsel for applicant Joseph advised that she was available for the date offered, however counsel for applicant Rodrigues was not. Had both counsel been available for trial the matter would have been conducted and concluded with a total delay of approximately 24.5 months, well within the presumptive ceiling set in Jordan.

[25] On July 4, 2022, the Crown wrote to counsel for the applicants and advised that there was a “Jordan Court” that sat on the last Thursday of every month, the purpose of which was to find earlier dates where possible.

[26] Later that day, the Crown advised counsel for the applicants that the period of May 22 – June 9, 2023, might be available. Counsel for both applicants advised that they would be available for that period of time and subsequently that period was set for trial. The November 27, 2023, trial period was vacated, as were the dates for the s. 8 Charter application rescheduled for April 27 and 28, 2023 and the s. 11(b) delay application on March 30, 2023.

[27] On July 22, 2022, the Crown wrote again to both counsel to advise that further dates had opened up between September 13 and October 21, 2022, with possible dates available in January, February, and March 2023. Further, the Crown offered to arrange for another prosecutor if any of the dates agreeable to counsel for the applicants was available to them and he was unavailable.

[28] Counsel for applicant Joseph advised that the dates were not available to her. Moreover, she noted, with respect to the September-October 2022 dates, two to three months was insufficient time to properly prepare for trial, and for Rodrigues’ counsel to prepare for a two-day s. 8 Charter application in the interim.

[29] On August 15, 2022, counsel were again notified that starting February 21, 2023, three weeks would be available and that an additional three weeks starting March 13, 2023, had opened up and were available as well. With respect to that time period, counsel for Rodrigues indicated that she was not available during February, however, would be available on March 20, 2023. Counsel for Joseph was not available the week of February 27 and March 13. Again, had both counsel for the applicants been available March 20, 2023, the total delay to the conclusion of the trial would have been approximately 27.75 months, again within the presumptive ceiling.

Considerations

[30] The Crown submits, as noted in Jordan at para. 64 that where the Court and the Crown are ready to proceed, but the defence is not, it will count as defence delay:

[T]he defence will have directly caused the delay if the Court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[31] The Crown notes that the applicants were offered 10 earlier trial dates during which the Court and Crown were ready to proceed that would have been within the Jordan ceiling.

[32] Counsel for the applicants argued that the earlier time suggested of September 13-October 21, 2022, was not available to counsel for Joseph as there would have been insufficient time to properly prepare for trial.

[33] With respect to the later time periods offered, December 12, February 21 through to March 20, while available to counsel earlier when the first trial date had been set for November 27, 2023, they had since scheduled other matters during those once available time periods. The defence is not expected to hold themselves in a state of perpetual availability. Relying on Supreme Court decision in R. v. Godin, 2009 SCC 26, they note as stated at para. 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

[34] Further, in R. v. Safdar, 2021 ONCA 207 at para. 50 the court held that where defence counsel is unavailable for legitimate reasons such as another client’s trial, the delay is not defence delay as “counsel could not, in good faith, compromise one client’s interests for another”.

[35] I am satisfied that the only period of defence delay, as conceded by counsel for Applicant Joseph, is the 5-day period September 13-17, 2022, initially offered to conduct of the preliminary inquiry for which counsel for applicant Joseph was unavailable, but when counsel for applicant Rodrigues and the Crown were available to proceed. Applying that period of delay to the set trial date of May 22, 2023, with an anticipated conclusion of June 3, 2023, the delay still exceeds the 30-month ceiling by at least two months.

Exceptional Circumstances

[36] After having deducted defence caused delay and the time period remains above the 30-month ceiling it falls to the Crown to show that the delay is reasonable because of exceptional circumstances that lie outside the Crown’s control such that they were reasonably unforeseen or reasonably unavoidable, and the Crown cannot reasonably remedy the delay emanating from the circumstances once they arise.

[37] In order to rely on such unforeseen and reasonably unavoidable circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to do so. The Crown is required to show that it took reasonable steps in an attempt to mitigate the delay. However, as noted in Jordan the Crown is not required to show that the steps taken were ultimately successful. Further, the Crown is not required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.

[38] The parties all concur that this is not a particularly complex case in terms of the evidence or issues. However, there has been some complexity to consider that was due in part to scheduling a matter which involves two accused and coordinating the respective schedules of counsel with that of the Court and Crown.

[39] The discrete exceptional circumstances relied on by the Crown is as a result of the effect of the COVID-19 pandemic declared in March 2020. Reliance on the pandemic as a discrete exceptional circumstance requires the Crown to have taken reasonable steps to mitigate the delay caused as a result.

[40] The Crown submits that the only issue on this application is whether there was a discrete exceptional circumstance and whether the Crown did what it could reasonably do to mitigate the delay that resulted. Where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to a backlog depending on the circumstances. Here, the Crown points to the fact that while the defendants were committed to stand trial on January 18, 2022, nearly two years into the pandemic Toronto at the time was still in some form of lockdown and jury selection was suspended. When the earliest date of May 9, 2022, could not be set for trial due to the outstanding discovery date of Detective Constable Akie, the earliest mutually available date at the time was November 27, 2023, approximately nine months over the Jordan ceiling.

[41] The Crown in its attempt to mitigate the overall ceiling delay included bringing the case forward into the “Jordan court”, a triage court set up to accelerate trial dates for those cases still above the Jordan ceiling. As cases that had been adjourned due to the pandemic and had been given priority in the trial calendar, and other newer cases that continued to come into the superior court with dates set beyond those earlier adjourned trial were being resolved, it opened up earlier trial periods and allowed the backfill of cases that were in Jordan jeopardy. In this case, earlier dates available to the Court and Crown were offered in September, October, and December 2022, and in February and March 2023, all of which would have been under the presumptive ceiling by several months. The earliest date available to all parties was May 22-June 3, 2023 - 32 months from arrest to anticipated conclusion of the trial.

[42] The fact that there were still Jordan courts running and trial coordinators had shifted court time from the superior court calendar of another borough court to accommodate trial time in this matter is indicative of efforts by the Crown and the trial coordinator to try to mitigate delay due to the scheduling of earlier adjourned cases and cases that came into the Superior Court before this matter.

[43] Counsel for the applicants, submit that there is no evidence in this instance to establish that the circumstances of the pandemic relied on by the Crown caused the delay. Relying on Monaghan J.’s comment in R. v. Greenridge, 2021 ONCJ 57 at para. 26 they contend the Crown must prove that the delay they seek to deduct from the overall delay was actually caused by the pandemic.

[44] Several years before the declaration of the COVID-19 pandemic the Supreme Court in Jordan in para. 75 said that “the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded”.

[45] In my view, having sat in this jurisdiction throughout the pandemic phase that initially involved the shutdown of courts causing the adjournment of many scheduled trials, particularly jury trials out of concern for the general public as prospective jurors, staff and other judicial system participants, while continuing the intake of trial matters arriving from the provincial court, it would be myopic to suggest that the pandemic was not an unforeseen and unavoidable discrete event that caused delay in this case, as evinced by the fact that the first trial date set in this matter was approximately 39 months from the date of the applicants’ arrests.

[46] In the case of R. v. Robinson, 2021 ONSC 2445 it was observed that once rescheduling commenced there was a cascading or “knock on” effect in setting dates after priority cases, those that had been adjourned from previously set trial or preliminary inquiry dates and/or in-custody accused that were rescheduled, which pushed newer cases to be set for later dates beyond those matters.

[47] The fact that the Jordan courts were set up to triage and to try to backfill cases that had exceeded the Jordan limit was offered in this case is evidence that the pandemic caused delay was still in effect and causing delay that had to be mitigated. Further, in this matter the Crown and Court Trial administration continued to offer earlier dates to the applicants when the Crown and court became available within the Jordan ceiling limit.

[48] In this instance, I am satisfied that the earlier date set in this matter was as a result of the adjournments and rescheduling of priority cases due to the COVID-19 pandemic effect on the operation of the trial courts combined with the continuing intake of newer cases which pushed out available trial dates. The trial date set for this matter is as a result of the mitigation efforts taken by the Crown and trial coordinators to bring forward matters in Jordan trouble that best coordinated with the schedules of counsel.

[49] In these circumstances, although the presumptive ceiling is exceeded by two months, I am satisfied that there continued to be the discrete event of the pandemic as an exceptional circumstance for which the Crown and court administration did what it could to reasonably mitigate the delay.

[50] The application for a stay of proceedings due to delay is dismissed.

A.J. O’Marra J.

Released: April 26, 2023