COURT FILE NO.: CR-22-70000011-00AP DATE: 20230515
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – HERBERT MEAWASIGE
Counsel: P. Garcia, for the Crown Mr. Meawasige, unrepresented but did not appear
HEARD: 18 April 2023
S.A.Q. AKHTAR J.
On appeal from the order staying proceedings by Justice L. Thomas of the Ontario Court of Justice on 31 March 2022.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] On 31 March 2022, the application judge stayed the respondent’s charges finding his section 11(b) rights had been violated.
[2] The respondent’s trial was expected to conclude on 30 August 2022, some 18 months and 22 days from the date the information had been sworn.
[3] The Crown appeals the stay alleging the application judge erred in her section 11 analysis.
[4] For the following reasons, I find the application judge committed a number of errors in reaching her decision. Accordingly, the stay of proceedings is set aside, and a new trial is ordered.
Background Facts
[5] The respondent had been charged with committing assault and assault with a weapon on his domestic partner. The respondent was alleged to have used a fork during one of these assaults. In addition, at the time of these allegations, the respondent was bound by a probation order prohibiting him from possessing weapons and requiring he keep the peace and be of good order.
[6] The respondent was arrested on 9 February 2021 and was released from custody the following day.
[7] These proceedings commenced during the midst of the COVID-19 pandemic and were subject to the Notice to the Profession and Public issued by the Ontario Court of Justice on 2 July 2020 (“the Notice”). The Notice made clear that unrepresented accused persons had a duty to move their case forward by contacting and retaining counsel, communicating with Legal Aid to receive advice and assistance, and getting in touch with the Crown Attorney’s office to make arrangements to receive disclosure. The Notice referenced a document prepared by the Crown Attorney’s office which provided information about preparing the case.
[8] Previously on 15 March 2020, courts in Ontario shut down as a result of the pandemic. The College Park courthouse where the respondent’s case was to be heard, remained closed until 17 August 2020. On 19 August 2020, the Ontario Court of Justice announced the province wide implementation of “virtual” case management courts. As COVID-19 cases resurged, a second shutdown was declared on 12 January 2021. In person matters were suspended between 26 April and 7 May 2021. On 21 May 2021, court matters resumed in full.
The Timeline
[9] After being released on bail, the respondent’s case proceeded as follows:
19 March 2021: The respondent’s prospective counsel attended court to advise that she was not yet retained. However, she advised that the respondent had applied for Legal Aid. Prior to this date, notwithstanding the Notice, the respondent had not contacted the Crown’s office to obtain disclosure. Counsel told the court she expected to be retained “shortly” and asked for the matter to return on 9 April 2021. She added that “hopefully I’m retained by then and I can send a request for disclosure”.
9 April 2021: Neither counsel nor the respondent attended court. Nor was any message received from them. A discretionary bench warrant was issued to the next court date of 23 April 2021.
23 April 2021: Counsel attended but advised that she was still not retained and was “working through some Legal Aid issues”. She indicated that a Legal Aid certificate had been mailed to the respondent, but he had not yet received it. Counsel added that she was going to facilitate in obtaining the certificate and asked to return on 7 May 2021.
7 May 2021: Counsel confirmed being retained the previous day. She asked for a three week adjournment indicating she would request disclosure and discuss matters with the Crown in the interim. The Crown informed the court that disclosure was already available on the established digital hub. The matter was adjourned to 28 May 2021.
In the interim, the respondent’s counsel received disclosure which consisted of 160 pages of paper material and an audio statement approximately two minutes in length.
28 May 2021: Counsel for the respondent said she was “working through the disclosure” and had not yet scheduled a pretrial with the Crown even though she had previously indicated that was going to be done “in the interim”. She asked for the matter to go to 9 July 2021 “for that purpose”.
6 July 2021: Counsel contacted the Crown to schedule a pretrial. The Crown was not available until the end of July and the parties set up a meeting to take place on 29 July 2021.
9 July 2021: Counsel attended court and asked for the matter to be adjourned to 6 August 2021, advising the court that a Crown pre-trial had been set for 29 July 2021.
29 July 2021: At the pretrial, the Crown advised it would be calling two witnesses: the complainant and a police officer. The defence indicated that there might also be two defence witnesses but would only make a final decision once the Crown concluded its case. The parties believed that one and a half days should be allotted for trial. At the time, court protocol mandated all matters to have a judicial pretrial before setting a trial date, and that was set for the first available date of 20 September 2021. The matter was adjourned to 24 September 2021.
20 September 2021: At the judicial pretrial, the presiding judge directed two days be set down for trial. No objection was raised by the defence to this revised time estimate.
24 September 2021: The respondent’s counsel attended court but had not filled out the required test of processing form mandated by the Notice. Although the form was available on a public website, the Crown provided counsel with the form as a courtesy. The form was submitted to the trial coordinator to set assigned trial dates. There is no dispute that this delayed schedule in the trial by four days.
The first dates offered to the parties were 29 and 30 August 2022. The assigned Crown counsel was unavailable on those dates but had the matter reassigned to a different counsel to keep the first available trial date.
The proposed section 11(b) application was set for 17 March 2022.
22 October 2021: Trial dates of 29-30 August 2022 were scheduled along with a s. 11(b) hearing date of 17 March 2022. The matter was adjourned to 5 November to permit the Crown election to be put on the record.
17 March 2022: The section 11(b) application was heard and the charges were stayed by the application judge on 31 March 2022.
The Appellant’s Position
[10] The Crown bases its appeal on two grounds: (1) the application judge erred in her analysis and characterisation of defence delay and (2) the application judge failed to consider the impact of the COVID-19 pandemic as an exceptional circumstance.
The Absence of the Respondent
[11] This appeal proceeded in the absence of the respondent. After hearing submissions, I found that the respondent was fully aware of the hearing date.
[12] Notice of appeal was filed by the Crown on 21 April 2022. An affidavit provided by the Crown showed that the notice had been personally served on the respondent on the same day. It is clear from the materials filed that the respondent knew the appeal had been launched and the date on which the appeal was to be heard. The respondent was also served with all materials to be relied upon by the appellant.
[13] It is noteworthy that from the outset, the respondent has failed to attend at any of the set date hearings for this appeal despite his knowledge.
[14] Having found that the appellant had demonstrated proper service upon the respondent and his knowledge of the appeal and its hearing date, I was content to hear the appeal in his absence.
LEGAL PRINCIPLES
The Presumptive Ceiling
[15] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, 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.
[16] 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 requires 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.
[17] 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. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.
[18] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:
(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.
(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[19] See also: R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776.
WAS THERE A BREACH OF THE RESPONDENT’S SECTION 11(B) RIGHTS?
The Total Delay
[20] The total delay in this case from the date that the information was sworn on 9 February 2021 to the expected end of trial date, 30 August 2022, amounts to 18 months and 22 days (or 567 days). Both parties agree that this exceeds the amount specified for summary conviction trials in Jordan, and becomes subject to s. 11(b) scrutiny.
Defence Delay
[21] The appellant argues that the application judge erred in her application of principles with respect to three separate time periods.
The Delay from 9 February to 7 May 2021
[22] The application judge characterised this period of delay in the broad stroke category of “intake”. Respectfully, this was an error.
[23] In R. v. Cody, 2017 SCC 31, [2017] S.C.R. 659, at paras. 30-31, the Court made the following comments about defence delay:
As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).
The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.
[24] Later, at para. 32, the Court added:
Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. The concept of an “intake period” may well have been a common term under the prior s. 11(b) regime in Morin. However, under Jordan, the judge was obliged to scrutinise the entire period between charge and the end of trial and determine if any delay was caused solely by the defence. [Emphasis added]
[25] Whilst the concept of “intake” may well have applied to delay under the Morin approach, the situation is now different: the Jordan / Cody directions require a judge to examine the entire delay and determine whether any periods were caused by the defence. Here, the approach adopted by the judge meant that she failed to identify significant time periods which impacted delay.
[26] For example, the judge correctly acknowledged that the Crown did not explicitly notify the respondent or his counsel of the availability of disclosure until 7 May 2021. However, she ignored the fact that the Notice sent out by the Ontario Court of Justice on 2 July 2020 directed all self-represented accused persons to contact the Crown’s office to obtain their disclosure. This was something the respondent had failed to do and contributed to the overall delay in this case.
[27] In her reasons for staying the case, the application judge criticised the Crown for not having given disclosure to the respondent. This criticism was unfair in light of the fact that, as described, the Court’s own practice direction imposed an obligation on the respondent to contact the Crown’s office. Had the respondent complied with the Notice, he and his counsel would have been in receipt of disclosure at a much earlier stage in the proceedings.
[28] The situation was compounded when the respondent’s counsel was seeking to be retained: she did not register to receive disclosure. In fact, when appearing in court on 19 March 2021, counsel indicated that she would only request disclosure once she was retained.
[29] It is also worth noting that on 9 April 2021, neither the respondent nor his counsel attended court. Early court appearances can be particularly significant in ensuring a trial date is set as expeditiously as possible. This case is a good example. Had either the respondent or his counsel been in attendance, they would’ve been informed about the disclosure hub, the respondent’s failure to register for that service, the fact that the disclosure was available, and the fact that counsel could have taken receipt of it at an earlier stage.
[30] Moreover, it is clear the respondent’s counsel was not ready to set earlier trial dates. She indicated that this was a result of not being able to have a pretrial or judicial pretrial because she had not fully been retained. The court protocol required a pretrial and judicial pretrial before setting a court date for trial. It was the lack of the defence retainer which prevented that from happening.
[31] On 23 April 2021, counsel for the respondent attended court and still advised that she was not yet retained.
[32] It is now trite law that the defence also has an obligation with respect to disclosure: it must pursue receipt of disclosure with due diligence. The defence did not do so in this case. In light of the fact that disclosure had been uploaded to the disclosure hub by 3 March 2021, the failure of the respondent to comply with the Notice, and his counsel’s refusal to obtain disclosure until retained, I find that the period between 19 March 2021 (when counsel first appeared in court) and 7 May 2021 (when counsel was retained) should be treated as defence delay and deducted from the amount of total delay.
[33] This 49 day deduction would bring the total delay to 518 days or 17 months and 1 day.
[34] I would also say that within this period, defence counsel contributed to additional delay. First, the failure of either of the respondent or his counsel to attend court on 9 April meant that nothing was done for another 14 days until both showed up on 23 April 2021. This should also have been categorised as defence delay by the application judge who, as with the other periods of defence delay, failed to refer to it in her reasons.
The Delay between 7 May and July 6, 2021
[35] The application judge also failed to take into account part of the time between 7 May and 6 July 2021 when defence counsel indicated she was “reviewing disclosure”.
[36] Defence counsel had been retained on 6 May 2021. For reasons that were never explained, she sought an adjournment from 9 May 2021 to 28 May 2021. On that date she said that she was “still working through disclosure” and then asked for a further adjournment to 9 July 2021.
[37] Once again, for unexplained reasons, the respondent’s counsel only saw fit to schedule a Crown pre-trial – a prerequisite for setting a judicial pretrial and trial date – on 6 July 2021, almost two months after being retained and obtaining disclosure. There is no clarification as to why counsel would require two months to review material that consisted of 160 pages of disclosure and a two-minute audio statement.
[38] The judge made no reference to this time in her reasons although, ironically, she criticised the Crown for taking two months to book a judicial pre-trial, commenting that “there was no evidence as to why” that date took so long to schedule.
[39] Jordan and Cody impose an onus on both the Crown and the defence to ensure matters move as expeditiously as possible. In my view, it was unreasonable to delay setting a pre-trial for two months to review the amount of disclosure given in this case. This delay, along with counsel’s failure to obtain disclosure at an earlier stage in the proceedings, would fall within the description of “marked inefficiency” or “marked indifference” towards delay.
[40] Whilst I would not place the entire period of delay at the feet of the defence, I would apportion one month which would, at the outer limit, been the requisite amount of time needed to consider the disclosure and request a pre-trial.
[41] It is noteworthy that the judge deducted four days as defence delay because counsel had not filled out the trial scheduling form as required but deducted nothing for the failure to diligently receive disclosure or review it.
[42] I would deduct one month from this period of time although it could arguably be more. This would bring the total delay to 16 months and 1 day, a period of delay well within the Jordan timeline.
The Impact of Covid
[43] Although I have concluded that the amount of defence delay would reduce the total delay to beneath the 18 month limit, I would not ignore the impact caused by the COVID-19 pandemic which the application judge noted was “without question a discrete event that caused delay in the courts”.
[44] The judge rejected the Crown’s request to reduce the total delay due to COVID-19 because she held that the Crown had not taken steps to mitigate delay in this case. This was also an error: when it appeared that the case might take too long, the original Crown counsel had the matter re-assigned to a new counsel who would be available on earlier dates. It is difficult to imagine what else could be done in the face of a crisis that was unprecedented in our lifetime.
[45] Nor was there any reference to the effects of the backlog caused by pre-pandemic trial dates being vacated and having to be re-scheduled, taking up time slots that might have been used for cases that emerged during the pandemic.
[46] This is not a case like R. v. L.L., 2023 ONCA 52, where the Crown only made vague submissions as to the trickle down effects of the pandemic on court scheduling and the Court of Appeal refused to permit a fresh evidence application on the impact of COVID-19 because of a lack of diligence by the Crown at trial.
[47] Here, the Crown at the s. 11(b) hearing adduced evidence of the specific effects of the pandemic and the shutdowns of College Park to demonstrate how the backlog increased. None of this material was ever addressed by the application judge.
[48] Moreover, recent jurisprudence recognises the “ripple” effects of the pandemic which acknowledge the need to indirect effects of COVID-19 and the damage to scheduling caused by the repeated shutdowns and restrictions imposed during the pandemic: R. v. Simmons, 2020 ONSC 7209, at paras. 67-68; R. v. Titus, 2022 ONSC 3484, at paras. 17-18; R. v. Hamblett, 2022 ONSC 5726, at paras. 46-49; R. v. Ajgirevitch, 2022 ONCJ 237, at paras. 57-58; R. v. Hamidi, 7 January 2022, unreported (ONCJ); R. v. Venne, 2021 ONCJ 80, at paras. 31-34; R. v. Robinson, 2021 ONSC 2445, at paras. 102-103; R. v. Khan, 2021 ONCJ 195, at para. 14.
[49] Accordingly, it would also have been appropriate to reduce the total delay to reflect the backlog and its impact on schedule stemming from the pandemic. However, since I have determined the total delay fell below the Jordan ceiling in this case, there is no need to specify the amount of time that should have been deducted.
[50] For these reasons, the Crown’s appeal is allowed, the stay of proceedings is set aside on all charges, and a new trial is ordered. The respondent is ordered to attend Courtroom 202 at the Courthouse at 10 Armoury Street in Toronto on 31 May 2023 at 9:00 a.m.
S.A.Q. Akhtar J.
Released: 15 May 2023
COURT FILE NO.: CR-22-70000011-00AP DATE: 20230515 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – HERBERT MEAWASIGE
REASONS FOR JUDGMENT S.A.Q. Akhtar J.
