COURT FILE NO.: CR-20-10000157 & CR-20-10000158 DATE: 20230706
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – SHANE CODRINGTON AND JEVOR BROWN
Counsel: J. Witkin and R. Verboom, for the Crown P. Brown, for Mr. Codrington C. Angelini, for Mr. Brown
Heard: 23 May 2023
S.A.Q. AKHTAR J.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] Shane Codrington and Jevar Brown stand charged with multiple counts of sexual assault related counts stemming from an incident alleged to have occurred on 10 July 2019 where a young woman was forcibly removed from a condominium building elevator at gunpoint, taken to a stairwell and anally and vaginally raped.
[2] Mr. Brown was arrested on 16 July 2019 and has been held in custody since then.
[3] He claims a violation of his right to be tried within a reasonable time under s.11(b) of the Charter of Rights and Freedoms and asks this court to stay his charges.
[4] After hearing submissions on the issue I dismissed the motion with reasons to follow which are now produced.
The Allegations
[5] In July 2019, a group of friends from Montreal came to visit Toronto and rented an Airbnb located in an apartment building at 111 Bathurst Street in Toronto. This group included the complainant in this case, hereinafter referred to as “C”, as well as her friends, G, D., and A.
[6] In the early hours of the morning of 10 July 2019, D. and G., left the building to smoke a cigarette. After they had finished, they realised they had left their key fob in the Airbnb and could not get back up to their rented apartment.
[7] At approximately 12:44 a.m., “C”, went to the 14th floor elevators to let her friends back in. She noticed two men standing in the hallway who followed her into the elevator when the doors opened. One was wearing a baseball cap and sunglasses. The Crown alleges that this man was Shane Codrington. The Crown alleges the second man, whose face is clearly visible, was Jevor Brown.
[8] What happened next was captured on the elevator’s security cameras.
[9] C pushed the button to the ground floor and began to use her mobile phone. Mr. Codrington approached her seeking to initiate conversation before taking her phone and placing it in his pocket. As she resisted, he produced what appeared to be a gun from his waistband and pointed it at her. Mr. Codrington proceeded to pull down the straps of C’s dress in an effort to expose her breasts whilst the second man stood in the corner and looked on impassively. When the elevator reached the 8th floor, Mr. Codrington grabbed C by her hair and dragged her from the elevator.
[10] C was taken to a nearby stairwell and pushed down some steps. She was forced to perform fellatio on Mr. Codrington whilst the second male inserted his penis into her anus and vagina. Both men switched positions with the man wearing the baseball cap forcing anal and vaginal sex on the complainant from behind whilst Mr. Brown placed his penis into her mouth. Throughout the incident, Mr. Codrington held a gun to C’s head.
[11] When Mr. Codrington demanded C’s mobile phone password she gave it to him. The assaults ended after C heard a sound near the stairwell area. Both men left the scene with Mr. Codrington telling C that they would be “looking” for her.
[12] When C returned to the Airbnb apartment she told her friends what had happened. The police were contacted the next day and C was examined by medical staff at the women's College Hospital.
[13] DNA taken from one of the vaginal swabs was sent to the Centre of Forensic Sciences. The results showed that it was greater than one trillion times more likely that they originated from Mr. Brown than if they originated from an unknown person unrelated to him.
The Timeline
[14] The history of this case unfolded as follows:
16 July 2019: Mr. Brown was arrested and remanded to the 23 July 2019. The matter was put over to 29 July for a bail application. On that date Mr. Brown told the court that he was in the process of retaining counsel and the matter was adjourned to 6 August 2019.
6 August 2019: Mr. Brown appeared in bail court stating that he had applied for Legal Aid but had not yet received a response. He indicated his desire to represent himself at his bail hearing. Court protocol required that a “special” bail hearing needed to be scheduled through the trial coordinator and the matter was adjourned to 12 August 2019.
12 August 2019: Mr. Brown again appeared in bail court and the matter was put over 19 August 2019 to arrange a special bail hearing. Mr. Brown informed the court he had retained counsel.
19 August 2019: Mr. Brown appeared in bail court where it was confirmed that counsel, Mr. Angelini, had been retained. The matter was adjourned to 26 August 2019.
26 August 2019: Mr. Brown was represented by an agent for counsel who told the court they were waiting for a surveillance video. The Crown indicated it would be sent to counsel. The matter was adjourned to the 9 September 2019 with the hope that further pre trials would be conducted in the interim.
9 September 2019: The matter was adjourned to the 23 September 2019 as both counsel and the Crown win the process of scheduling a judicial pretrial date.
23 September 2019: The court was advised that a judicial pretrial had been set for 26 September 2019.
26 September 2019: A judicial pre-trial was held at the Ontario Court of justice.
27 September 2019: The case was adjourned to 15 October 2019 for the defence to take instructions from Mr. Brown in light of comments made at the judicial pretrial.
15 October 2019: The matter was adjourned to 12 November 2019 because of outstanding disclosure. The Crown said it would provide it as soon as possible. However, Mr. Codrington informed the court that he was unhappy with his lawyer and made comments about his mental health issues.
12th November 2019: An agent for Mr. Brown’s counsel informed the presiding justice that counsel had just received new disclosure and arranging a new judicial pretrial. The matter was adjourned to 26 November 2019.
14 November 2019: Mr. Brown was brought to court for a 90 day bail review and was ordered further detained.
26 November 2019: Mr. Codrington told the court that he had discharged his counsel and was looking for a new lawyer. An agent for Mr. Angelini indicated that a new judicial pretrial would be required but could only be scheduled once Mr. Codrington’s new counsel was retained. The agent also told the court that he had asked the Crown to sever Mr. Brown from Mr. Codrington to avoid delay. The Crown responded by saying that it had sent a letter to counsel outlining case management steps that were being considered.
10 December 2019: Mr. Codrington had not yet retained new counsel. The matter was adjourned to 23 December 2019.
23 December 2019: Mr. Codrington had still not retained counsel. The matter was put over to 31 December 2019. On that date Mr. Codrington remained unrepresented preventing any further steps to progress the matter. The Crown advised the court it was taking steps to prefer a direct indictment to the Superior Court of justice. The matter was adjourned to 14 January 2020 for a possible resolution.
14 January 2020: Counsel for Mr. Brown did not appear but sent a message indicating a readiness to set a trial date. However, Mr. Codrington had still not properly retained counsel. The matter was adjourned to 27 January 2020.
27 January 2020: Mr. Brown appeared with counsel’s agent and the court was informed that Mr. Codrington had retained or was in the process of retaining new counsel, Mr. Gerald Yasskin. The matter was adjourned to 10 February 2020.
3 February 2020: The Crown filed the direct indictment at the Superior Court of Justice. As a result, on 10 February 2020 both Mr. Brown and Mr. Codrington were remanded to appear on 11 March 2020 at the Superior Court.
11 March 2020: The matter made its first appearance at the Superior Court of Justice. Mr. Brown asked that a judicial pretrial date be scheduled. However, as Mr. Codrington had not formally retained Mr. Yasskin, that request was declined. The matter was adjourned to 25 March 2020.
18th March 2020: Due to the outbreak of the COVID-19 pandemic, all in-person proceedings at the Superior Court of Justice were suspended. A Notice to the Profession sent out to parties made clear that all matters were to be conducted remotely until further notice.
13 May 2020: Mr. Brown was again denied bail after a bail review.
2 June 2020: A judicial pretrial was scheduled for 2 July 2020 and the matter was remanded to 6 July 2020.
6 July 2020: A three week jury trial was scheduled for 14 June 2021.
18 March 2021: Due to the resurgence of COVID-19 cases, an updated Notice to the Profession was published announcing the suspension of all jury trials set to commence before July 2021. This meant Mr. Brown’s trial had to be adjourned to a later date.
16 April 2021: All parties sought to obtain a new rescheduled trial date. Due to the backlog caused by the prior shutdowns, the earliest date available for a three-week jury trial was 7 November 2022.
10 November 2021: Mr. Angelini was contacted by the Crown as they had been made aware from the trial office that the 7 November 22 date conflicted with the Superior Court’s Fall Conference due to take place on 8-10 November 2022. Accordingly, the date had to be rescheduled.
15 November 2021: Mr. Yasskin appeared on behalf of both Mr. Codrington and Mr. Brown. The 7 November 22 trial date was vacated and the matter remanded to 6 December 2021 to set a new trial date. On that date, the case was further remanded to 10 January 2022 to allow trial dates to be scheduled and for a continuing judicial pretrial to be conducted.
10 January 2022: The Crown informed the Assignment Court justice that dates in May 2023 were available. The matter was remanded to 24 January 2022 to see whether Mr. Codrington would resolve his matter an outcome that would impact the length of the trial. On that date, the matter was further adjourned to 16 February 2022 for a potential resolution.
16th February 2022: There was to be no resolution and the matter was adjourned to 7 March 2022 to see if an earlier trial date could be secured.
7 March 2022: Mr. Yasskin appeared on behalf of both accused and again told the court that it was possible that Mr. Codrington might resolve his case. The Crown offered summer trial dates but neither counsel was available. The matter was adjourned to 23 March 2022.
23 March 2022: Mr. Yasskin advised the court that he had been discharged by Mr. Codrington and applied to be removed from the record. He was replaced by new counsel, Ms. Patricia Brown. The Crown advised of available dates in April 2022. Counsel for Mr. Brown were available but Ms. Brown was not. The matter went to 6 April 2022.
6 April 2022: A judicial pre-trial was conducted and the matter was put over to 11 April 2022.
11 April 2022: Ms. Brown confirmed that she was bringing an application for a fitness assessment on behalf of her client.
[15] On 13th of April 2022, two potential trial dates became available on 18 July 2022 and 12 December 2022. Neither date was appropriate for either the Crown or Mr. Brown.
25 April 2022: Ms. Brown did not attend and the matter was put over to get an update on the trial status.
27 April 2022: Ms. Brown appeared and told the court that she was making arrangements for Mr. Codrington to meet with a psychiatrist as part of the fitness assessment process.
5 May 2022: Neither accused attended but the court was advised that the parties were awaiting for a fitness assessment with respect to Mr. Codrington.
3 June 2022: The court was advised that the fitness assessment results were still pending and the matter was put to 13 June 2022.
13 June 2022: Mr. Codrington appeared but Mr. Brown did not. The Crown indicated that a trial date of 23 May 2023 had been set and that Mr. Codrington was undergoing a fitness assessment at the Centre of Mental Health and Addictions.
4 July 2022: The Crown advised that there were dates available in the autumn of 2022 but were waiting to hear back from counsel regarding their availability.
11 July 2022: Mr. Codrington appeared with an agent who advised, but Ms. Brown was not available for the autumn date.
28 July 2022: The Crown again confirmed the 22 May 2023 date although it had tried to find earlier dates with October 2022, December 2022, and February 2023 being offered. However, defence counsel who had conflicting schedules were not available on those dates. Mr. Angelini asked the Crown to consider severance and after a query from the court indicated that he was considering filing a s. 11(b) application.
Positions of the Parties
[16] Both parties agree that the total delay in this case amounts to 46 months and 29 days thereby exceeding the Jordan deadline.
[17] Mr. Angelini, on behalf of Mr. Brown, argues there was no defence delay in this case and that the only deduction should be the four month period between 14 June 2021 and 10 November 2021 which he concedes was delay caused by the COVID-19 pandemic.
[18] Mr. Angelini also submits that the delay between 10 November 2021 and 7 November 2022 would, in the ordinary course of events, be characterised as an exceptional circumstance as it was caused by the pandemic’s effect on the normal working practices of the court.
[19] However, he submits that the notification received by the Crown of the judges’ Fall Conference and the adjournment of 7 November 2022 constituted an intervening act which “broke the causal link between Covid-19 and the delay”. Mr. Angelini says that the delay was not caused by COVID-19, but by the Crown becoming aware of the judge’s Fall Conference. He argues that the delay between 10 November 2021 and 23 May 2023 was delay “occasioned in the normal course of setting trial dates as well as delay caused by the unavailability of Mr. Codrington’s counsel”.
[20] Further, and in the alternative, he argues that the Crown cannot rely on Mr. Codrington’s presence as an exceptional circumstance in this case. Whilst he admits that Mr. Codrington caused a substantial amount of delay by discharging counsel and being slow to retain new counsel, Mr. Angelini submits the Crown should have severed the two co-accused to ensure that Mr. Brown obtained an earlier trial date.
[21] Ms. Verboom, on behalf of the Crown agrees there was no defence delay in this case. However, she argues the entire period between 14 June 2021 and 10 November 2022 was delay resulting from the COVID-19 caused court shutdowns. Once that period is deducted, Ms. Verboom says the net delay amounts to 29 months 21 days, and falls below the Jordan ceiling.
[22] Further, Ms. Verboom places responsibility for much of the delay on Mr. Codrington and argues that his actions should be considered when determining whether the Jordan ceiling was breached. She contends that severance was an unrealistic option because the interests of justice required a joint trial.
LEGAL PRINCIPLES
The Presumptive Ceiling
[23] 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.
[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 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.
[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. 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.
[26] 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.
[27] See also: R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776.
ANALYSIS
Delay Caused by the Pandemic
[28] The courts have recognised that the COVID-19 pandemic was an exceptional circumstance which seriously impacted the ability of the courts to conduct criminal trials: R. v. Drummond, 2020 ONSC 5495; R. v. Gutierrez, 2020 ONSC 6810; R. v. Khattra, 2020 ONSC 7894; R. v. Simmons, 2020 ONSC 7209; R. v. Koustov, [2021] O.J. No. 191; R. v Pinkowski, 2021 ONCJ 35, at paras. 24-25; R. v. Buoc, [2022] O.J. No. 762 at paras. 35-39; R. v. Brooks, [2022] O.J. No. 243 at paras. 27-28; R. v. Buabeng, [2022] O.J. No. 1732 at paras. 92-110.
[29] There has also been an acknowledgement that COVID-19 pandemic deductions do not simply encompass the amount of time between set date and the trial date itself. The courts have acknowledged a “ripple” effect which recognises the impact of the backlog set by adjourning trials already set before the pandemic which had to be adjourned after the shutdowns forced by the emergence of the COVID-19 virus. See: 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.
[30] In this case, Mr. Angelini relies upon court decisions that held a s.11(b) breach occurred during the pandemic but not because of it. For example, in R. v. Gonsalves, 2021 ONSC 7209, the court found that the delay was caused by the failure of the Crown to provide two key items of disclosure rather than the impact of the pandemic.
[31] Using these decisions, Mr. Angelini argues that here, the defining moment of the delay came when the Crown became aware of the conflict caused by the judge’s conference and notified the defence that the trial date of 7 November 2022 had to be adjourned. As noted, Mr. Angelini argues that this was an intervening act which broke the link between the pandemic and delay.
[32] Given Mr. Angelini’s concession that prior to the Crown receiving notice of the conflict, the period between 14 June 2021 and 7 November 2022 was delay caused by the pandemic, it is unclear to me how the Crown’s discovery of the conflict changed the nature of the delay. Irrespective of the date that the Crown was notified about the Fall Conference, the delay between March 2021 and November 2022 remained delay caused by the exceptional circumstances of the effects of the pandemic.
[33] In R. v. Agpoon, 2023 ONCA 449, the court at paras. 22-23 overturned stays imposed by the trial judge, advising that Jordan principles require a “birds-eye view” of the case rather than a micro parsing of each time period, particularly in pandemic era cases. The court re-affirmed that where access to the courts was denied because of pandemic induced shutdowns, the delays that followed must be treated as discrete exceptional circumstances under Jordan. Significantly, at para. 42, the court reminded us that it “is easy to be critical of decisions made by the Crown, with the benefit of hindsight. At the height of the pandemic, it would have been very difficult to predict the impact on the courts’ capacities from week to week and to make plans for the continuation of matters”.
[34] Here, the only delay that falls outside the description of exceptional circumstances is that of the time between 7 November 2022 (the adjourned trial date) to the new date of 23 May 2023. This delay was caused by the adjournment of the 7 November 2022 date and the lack of court time thereafter.
[35] That being the case, the only Jordan delay is the period between 7 November 2022 and 23 May 2023. The period prior to that date - between March 2021 and 10 November 2022 - was delay caused by the exceptional circumstances of the pandemic.
[36] I also note the efforts of the Crown to mitigate the delay during this period of time. Prior to the shutdowns, the Crown preferred a direct indictment to shorten any periods of delay that might arise in the Ontario Court of Justice and hasten Mr. Brown’s Superior Court of Justice trial. The Crown also made efforts to assist Mr. Brown’s co-accused in proceeding with his “Rowbotham” application to secure funding. The Crown advised counsel that it would readily consent to a re-election to a judge alone trial to avoid the extended wait for a jury trial. The Crown also sought to have the matter listed as a priority to obtain the earliest possible trial date. Earlier trial dates were offered to both the accused’s counsel.
[37] Moreover, I agree with the Crown’s argument that this trial is not an island to be considered in isolation. Although the re-scheduling delay was lengthy, it is clear that a multitude of other cases were in the same situation, and also looking for trial dates. Section 11(b) does not mandate that other trials be adjourned to accommodate any single trial. There was clearly a “ripple” effect at work in the setting of the applicant’s trial date.
[38] For these reasons, I find that the period between 14 June 2021 and 7 November 2022 is to be deducted from the total delay leaving a net delay of 29 months and 21 days to the end of the trial date.
Severance
[39] Although I have held that after deducting delay caused by the pandemic, the delay in this case fell within the Jordan timeline, I should also address Mr. Angelini’s additional argument that the Crown should have severed Mr. Brown’s matter from Mr. Codrington to allow the setting of an earlier trial date.
[40] In Jordan, at para. 77, the Court expressed its view that proceeding jointly against multiple co-accused “so long as it is in the interest of justice to do so, may also impact the complexity of the case”.
[41] In R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171 the Court of Appeal held that an individualised approach must be taken when determining delay in cases where there is more than one accused. The court also recognised that pre-Jordan, co-accused delay was considered neutral because it is generally in the interests of justice that multiple accused charged with the same offences be tried together. However, in the s. 11(b) context, that principle must be balanced against the constitutional right to be tried within a reasonable time. The court concluded, at para. 142 that “provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly charged accused are considered under the exceptional circumstances analysis in Jordan”.
[42] There are strong policy reasons for proceeding with joint trials for the same offences or where there is evidence of a joint enterprise. Joint trials avoid the risk of duplication, increased costs, and inconsistent verdicts: R. v. Crawford , [1995] 1 S.C.R. 858 at para. 30; R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81 at para. 16; R v. Hamilton, 2011 ONCA 399 at para. 207.
[43] Those reasons are enhanced when there is a risk of a cut-throat defence and both accused point the finger at the other as the culpable party in the offence: R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583 at para. 62; R. v. Suzack (2000), 141 C.C.C. (3d) 449 at paras. 87-88. Here, Mr. Angelini candidly conceded that there was a real possibility that this be how this trial unfolded.
[44] I also agree that in the circumstances of this case, severance would impose a heavy cost on the Crown and the complainant (who would have to testify twice about a traumatic assault). It would also increase delay in the system as a whole by having a second trial that would need to be accommodated at the expense of other cases in an already overloaded system.
[45] I conclude that it was in the best interests of justice for the Crown to have refused severance and proceeded jointly against both accused.
[46] Accordingly, the delays caused by Mr. Codrington should be treated as exceptional circumstances under Jordan.
[47] For these reasons, the application is dismissed.
S.A.Q. Akhtar J. Released: 6 July 2023
COURT FILE NO.: CR-20-10000157 & CR-20-10000158 DATE: 20230706 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – SHANE CODRINGTON AND JEVOR BROWN
REASONS FOR JUDGMENT S.A.Q. Akhtar J.