Court File and Parties

Court File No.: 21-17551 Date: 2023-08-10 Ontario Superior Court of Justice

BETWEEN:

HIS MAJESTY THE KING – and – MARK CUNNINGHAM AND ISABELLE CUNNINGHAM Defendants

Counsel: David Rodgers, for the Crown Self-Represented

Heard: July 4 and 7, 2023

RULING ON SECTION 11(B) CHARTER APPLICATIONS

JUSTICE MARC R. LABROSSE

Overview

[1] The Defendants are jointly charged with two offences: attempting to obstruct justice, contrary to s. 139(2) of the Criminal Code, R.S.C. 1985, c. C-46, and uttering a forged document, contrary to s. 368(1) of the Criminal Code. They are self-represented.

[2] The factual background to this proceeding is summarized in my Ruling on Application to Quash Subpoenas and Application to Relitigate Charter Rulings dated July 24, 2023.

[3] The Applicants move for a stay of proceedings on the basis that their right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms has been infringed.

[4] Of particular significance to this case is the fact that the Applicant Mark Cunningham was initially charged on May 28, 2019, with furnishing false or misleading information, contrary to s. 234 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). This matter proceeded to Provincial Offences Court (“POA Court”). On the date of trial, October 3, 2022, the Landlord did not attend despite being subpoenaed. The Crown was required to request a stay of proceedings (the “POA Prosecution”).

[5] On February 23, 2021, a criminal information was sworn whereby both Applicants were charged with three offences under the Criminal Code: fraud, laundering of proceeds of crime, and possession of proceeds of crime (the “Criminal Prosecution”). The Crown dropped these charges in September 2021 and proceeded on a new indictment listing the two charges now set for trial: uttering forgery and obstruction of justice (the “Second Criminal Prosecution”).

[6] The Application raises the following issues:

a. Should the applicable period of delay under s. 11 (b) start from the POA Prosecution (May 28, 2019) or the Criminal Prosecution (February 23, 2021)?

b. What is the proper calculation of delay?

[7] For the reasons that follow, I conclude that regardless of whether the period of delay starts from the POA Prosecution or Criminal Prosecution, there is defence delay and both the COVID-19 pandemic and the mistrial constitute discrete events for which the applicable period should be deducted from Net Delay. In both circumstances, the remaining delay is below the 30-month presumptive ceiling.

Relevant Evidence and Periods of Delay

[8] Mr. Cunningham was initially charged under the RTA on May 28, 2019. Mrs. Cunningham was not the subject of a provincial offences prosecution.

[9] After a few remand dates, Mr. Cunningham did not attend at his appearance of December 13, 2019 in POA Court at which time a trial date of April 7, 2020 was set in his absence.

[10] On March 17, 2020, the courts were shut down as a result of the COVID-19 pandemic. The April 7, 2020 trial date was automatically adjourned and the matter returned to POA Court on August 22, 2022, at which time a new trial date was set for October 3, 2022.

[11] On February 23, 2021, the information was sworn for the Criminal Prosecution. The matter then proceeded to a series of judicial pre-trials (“JPT”) in the Ontario Court of Justice (“OCJ”). On June 29, 2021, the Crown was ready to set trial dates, but the Applicants objected to Justice Webber presiding at the judicial pre-trial. The matter was adjourned to August 19, 2021, but neither defendant attended at the virtual JPT and a bench warrant was issued with discretion. The matter was adjourned to September 3, 2021.

[12] On September 3, 2021, the Applicants sought an adjournment to consider their election. On September 24, 2021, the Applicants sought a further adjournment to confer with counsel following their receipt of the indictment for the Second Criminal Prosecution. On October 22, 2021, both accused refused to elect and the presiding OCJ judge deemed the election to be in the Superior Court of Justice, a trial by judge and jury.

[13] On October 29, 2021, trial dates in the SCJ were pencilled in for January 3, 2023 with the parties to consider the option of a judge-alone trial. On November 21, 2021, the January 2023 trial dates were confirmed. Pre-trial motions were held in November and December 2022.

[14] The jury trial began on January 3, 2023, and the Crown closed its case on January 5, 2023. An issue arose with jury selection on January 6, 2023. As of January 9, 2023, neither of the Applicants attended at the trial because of claimed illness. Ultimately, the trial judge declared a mistrial on January 30, 2023, because of the Applicants’ inability to attend for their trial.

[15] New dates were scheduled in the Superior Court of Justice, being February 7, 2023, February 17, 2023 and March 3, 2023 whereby Mrs. Cunningham attended but Mr. Cunningham did not attend.

[16] On March 27, 2023, new trial dates were set for September 5-15, 2023.

Court Proceedings

[17] The parties have relied on the various court appearances to argue delay. The issue of defence delay or exceptional circumstances are very much part of the factual matrix in these Applications and they will be considered in light of the following events:

a. The Crown claims that Mr. Cunningham did not attend court both immediately before the COVID shutdown and immediately after in the POA Prosecution. The Crown claims defence delay of 200 days in the POA Prosecution.

b. During the Criminal Prosecution and Second Criminal Prosecution in the OCJ, the Crown claims delay of 115 days when the Crown was otherwise ready to proceed resulting from:

i. an unfounded objection to Justice Webber hearing the JPT on June 29, 2021;

ii. requesting an adjournment to confer with counsel;

iii. refusing to elect their mode of trial.

c. The period from the Applicants’ failure to attend their trial on January 9, 2023 until the conclusion of the scheduled end of the anticipated trial in September 2023 being 249 days.

[18] Conversely, Mark Cunningham claims that the total period of delay must begin from the POA Prosecution start date of May 28, 2019 until the anticipated end of trial on September 15, 2023 for a total delay of 1571 days.

[19] It was unclear from the Applicants’ submissions if this total period of delay is also applicable for Isabelle Cunningham but her Notice of Application says that it does.

The Law

[20] As of July 8, 2016, the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, guides this Court in determining issues of delay and the effect on an accused person’s s. 11(b) Charter rights. Jordan creates presumptive ceilings for the prosecution of criminal cases in Canada. Delay beyond the ceiling is presumptively unreasonable and unless the Crown can rebut the presumption of unreasonableness on the basis of exceptional circumstances, the accused person will be entitled to a stay of proceedings.

[21] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario summarized the approach to be taken under the new Jordan framework as follows:

i. Calculate the total delay, from the date the charges were laid to the actual or anticipated end of trial.

ii. Subtract defence delay from the total delay to calculate the net delay.

iii. Compare the net delay to the presumptive ceiling. 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. Absent exceptional circumstances, a stay will follow.

iv. Exceptional circumstances can include discrete events or particularly complex cases.

v. Delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached.

vi. Where there is delay resulting from the fact that a case is particularly complex and the presumptive ceiling is exceeded, the court must consider whether the particular complexity was such that the time the case took is justified and the delay is reasonable.

vii. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[22] Exceptional circumstances are ones that (1) lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as the circumstances meet this definition, they will be considered exceptional: see Jordan, at para. 69.

[23] In 2017, two further decisions provided guidance to the Court on the Jordan analysis: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, and R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, leave to appeal refused, [2018] S.C.C.A. No. 135. In Cody, the Supreme Court of Canada reaffirmed the Jordan framework, stressing that every actor in the justice system has a responsibility to ensure criminal proceedings are carried out in a manner consistent with an accused’s s. 11(b) Charter rights.

[24] Part of the analysis includes factoring in inherent time. As acknowledged in Jordan, at para. 179, the s. 11 (b) analysis does not require counsel to hold themselves in a state of perpetual availability. Defence counsel are not obligated to make themselves available for the first date offered by the courts: Jordan, at para. 179.

[25] In Jordan, the Supreme Court of Canada commented on periods of institutional delay and inherent time requirements in the following fashion, at para. 183:

The reasonable inherent time requirements are concerned with identifying a reasonable period to get a case similar in nature to the one before the court ready for trial and to complete the trial. The inherent time requirements are not determined, for instance, with reference to the actual availability of particular counsel and court, but rather they are determined by an objective estimation. The other element, the acceptable period of institutional delay, is the amount of time reasonably required for the court to be ready to hear the case once the parties are ready to proceed. This is expressed with reference to the Morin guidelines. These guidelines do not relate to inherent time requirements; they reflect only the acceptable period of institutional delay.

[26] Jordan provides examples of how to assess defence delay at paras. 192-194:

All steps that are reasonably necessary to make full answer and defence are properly part of the inherent time requirements of the case and do not count against either the Crown or the accused. However, delay resulting from unreasonable actions solely attributable to the accused must be subtracted from the period for which the state is responsible.

Unreasonable actions by the accused may take diverse forms, such as last-minute changes in counsel or adjournments flowing from a lack of diligence (e.g. failure to pursue or review disclosure in a timely way; pursuit of unnecessary information; failure to attend court appearances or to give timely notice of intended Charter applications, particularly during case scheduling; unreasonable rejection of earlier dates for preliminary hearing, trial or other court appearances (see Hill and Tatum, at pp. 17-18); and a lack of sufficient effort to accommodate dates available to the court and the prosecution). It is obvious that delays caused by attempts to obstruct the course of the trial, that amount to “deliberate and calculated tactic[s] employed to delay the trial”, or other vexatious or bad faith conduct by the accused, cannot count against the state: Askov, at p. 1228.

The question of whether the actions of the accused were unreasonable must be viewed through the lens of reasonable conduct of counsel and the accused at the time the judgments had to be made, not with the benefit of hindsight. The accused must not be penalized for taking all reasonable steps to make full answer and defence even if, with the benefit of hindsight, they were not particularly fruitful.

[27] Defence delay has two components. The first is delay waived by the defence. A waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. For a waiver to be legitimate, the accused person must have full knowledge of their rights and must understand the effect waiver will have on those rights.

[28] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay includes situations where the actions of the defence either directly or indirectly caused the delay or the acts of the defence are shown to be a deliberate and calculated tactic employed to delay the trial. This also includes time where the Court and the Crown are ready to proceed, but the defence is not. However, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay: see Jordan, at paras. 60-66; Cody, at para. 29.

[29] Delay should be attributed to the defence if the Court and Crown are ready to proceed, but defence counsel is unavailable. This principle applies even if the dates are provided to defence with short notice: see R. M. (J.), 2017 ONCJ 4, at para. 67; Coulter, at para. 73.

[30] If dates are offered and the defence does not choose the first available date where the Court and the Crown are available and the delay was not associated with legitimate defence preparation time, the delay is attributed to the defence: see R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22. However, that analysis must continue to be contextual. The Court must consider the nature of the delay because legitimate defence preparation time is part of inherent delay.

[31] With respect to the delay attributable to the availability of the courts as a result of the COVID-19 pandemic, much has been written and there is no real dispute that the pandemic should properly be considered as a discrete event. Recently, the Court of Appeal for Ontario pronounced itself on the proper manner to consider the effects of the pandemic in R. v. Agpoon, 2023 ONCA 449, at para. 4:

Jordan was not written with a phenomenon like the pandemic in mind, but its principles are adaptable. Jordan recognized that delay attributable to “exceptional circumstances” could be acceptable: at para. 68. The trial judge observed correctly that “[n]umerous rulings have considered the impact of the global pandemic in the context of s.11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.”

[32] Further, at para. 22, the Court of Appeal in Agpoon cites Jordan to encourage courts to avoid “complicated micro-counting” in determining delay, particularly when considering the effects of the pandemic. Instead, court should adopt a bird’s-eye view of the case.

[33] The relevant time period runs from the laying of the information to the actual or anticipated date of the end of evidence and closing arguments: see R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 55.

Analysis

Issue 1: May 28, 2019 or February 23, 2021

[34] The issue of the total period of delay is most relevant to Mark Cunningham. He alone was charged under the RTA. When considering that charge, it is relevant to consider the nature of the offence. Section 234 (v) of the RTA states that “a person is guilty of an offence if the person furnishes false or misleading information in any material filed in any proceeding under this Act or provided to the Board”.

[35] Notably, there are two offence provisions under the RTA. Section 233 states, “A person is guilty of an offence if the person knowingly…”. Section 234 states, “A person is guilty of an offence if the person…”. Clearly s. 233 incorporates a mens rea element to the offence whereby s. 234 does not.

[36] Section 238 is the penalty section and states that a person who is guilty of an offence under s. 234 is liable on conviction to a fine of not more than $50,000. Accordingly, there is no penalty which deprives the individual of liberty by subjecting them to possible incarceration.

[37] Furthermore, the period from May 28, 2019 to February 22, 2021, would be considered pre-charge delay in the context of the Criminal Prosecution which began on February 23, 2021. The Supreme Court of Canada addressed the issue of pre-charge delay in R. v. Hunt, 2017 SCC 25, [2017] 1 S.C.R. 476. In that decision, the Supreme Court adopted the dissenting reasons of the Newfoundland Court of Appeal in R. v. Hunt, 2016 NLCA 61, 33 C.R. (7th) 321. The Supreme Court of Canada adopted the position that pre-charge delay is not relevant under s. 11(b) of the Charter and is only considered under ss. 7 and 11(d) of the Charter.

[38] The question then turns on if the s. 11(b) analysis can apply to two separate proceedings. In R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, the Court of Appeal considered two separate proceedings and the circumstances in which s. 11(b) of the Charter applies to the “gap period” between a first prosecution which is stayed and a second prosecution commenced after the stay. The general rule is that the “gap” period would not apply to the s. 11(b) analysis. An exception to this rule occurs where, during a “gap” period, the person remains subject to the judicial process. In this situation, the person’s s. 11 (b) interests continue to be affected by the knowledge or expectation that further charges are imminent. It is then reasonable to conclude that he remains subject to the process of the court.

[39] The Applicants rely on R. v. Nguyen, 2013 ONCA 169, 2 C.R. (7th) 70, at para. 50, in support of their position that s. 11 (b) applies to matters in Provincial Offences Court. While it may apply to individual proceedings in POA court, it is not germane to the matters at issue. The real issue under s. 11 (b) is if the offence under s. 234 (v) of the RTA is a criminal or quasi-criminal offence.

[40] In R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.), the Court of Appeal for Ontario identified the period under question for s. 11 (b) purposes as beginning with the laying of the charge and continuing until the end of the trial. The Court of Appeal stated that s. 11 (b) is designed to protect an accused from the prejudice that flows from unreasonable delay in being tried on criminal and quasi-criminal charges: Kporwodu, para. 162.

[41] It is clear that a charge under s. 234 (v) of the RTA is not a criminal charge. It is not a mens rea offence. The Crown argues that it is a regulatory offence. While the Applicants did not specifically state it, their insistence that s. 11 (b) applies to the RTA charge clearly suggests that they believe it to be at least a quasi-criminal charge.

[42] In Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, Rothstein and Cromwell JJ. explained the difference between criminal and regulatory offences. Criminal offences are “aimed at promoting public order and welfare within a public sphere of activity”: Guindon, at para. 45. Regulatory offences are “primarily intended to maintain compliance or to regulate conduct within a limited sphere of activity”: Guindon, at para. 45.

[43] The Court in Guindon relied heavily on Wilson J.’s reasoning in R. v. Wigglesworth, [1987] 2 S.C.R. 541. In Wigglesworth, the Supreme Court adopted a “somewhat narrow” definition of the words "charged with an offence" in s. 11 of the Charter. This narrow definition, whereby s. 11 only applies to criminal matters, was adopted to facilitate consistent application of the section. The rationale was that a broad definition whereby s. 11 applied to criminal, quasi-criminal, and regulatory matters would lead to broader application of the section and increase the risk of inconsistent interpretations of s. 11 rights: Wigglesworth, at p. 558.

[44] An offence will be considered criminal and will attract s. 11 protection if either its purpose or procedure are criminal: Guindon, at para. 47; Wigglesworth, at p. 561. To determine whether an offence is criminal, the court must assess whether the offence is criminal in nature or whether a true penal consequence flows from the sanction: Guindon, at para. 44. The criminal in nature test focuses on the process while the penal consequences test focuses on its potential impact on the person subject to the proceeding.

[45] In support of the Crown’s position, I note several features of the RTA charge that refute a finding that it is a quasi-criminal charge:

a. The RTA is provincial legislation that, at its highest, is concerned with regulating private and civil rights in the Province of Ontario. While it certainly creates offences, these are corollary to laws that create rights and obligations with respect to tenancy agreements in the province.

b. It is not a mens rea offence as seen in the difference between the ss. 233 and 234 of the RTA.

c. A finding of guilt results in a fine. While the maximum fine can reach $50 000, the fine on a first offence would be considerably less. There is no risk of imprisonment.

d. There is no risk of pre-trial detention, and one is not released on conditions that hang over one’s head. Upon being charged with the s. 234 (v) offence, a person’s liberty interests are not at stake. There is no need to apply to be released on bail.

e. The penalty for a s. 234 offence is imposed by a judge of the Provincial Offences Court, not a judge in a criminal court.

f. A conviction for an offence under the RTA does not result in a criminal record.

g. The difference is also seen in the consequences for a failure to attend. When Mr. Cunningham did not attend in the Provincial Offences Court, the court went ahead and set the trial dates in his absence. When he did not attend before the OCJ, a bench warrant was issued.

[46] Accordingly, I conclude that the offence under s. 234 (v) of the RTA is not a quasi-criminal charge. As such, s. 11(b) of the Charter is not engaged as part of the pre-trial delay between May 28, 2019 and February 22, 2021 prior to the Criminal Prosecution information being sworn.

[47] When considering the circumstances of Isabelle Cunningham, the Applicants’ arguments were unclear. At one point, Mr. Cunningham stated that he was not claiming pre-charge delay but later he took the position that she waited 21 months before being charged and that she could have been preparing for trial during that time.

[48] The case for Isabelle Cunningham falls squarely under the issue of pre-charge delay and the jurisprudence in Hunt applies directly. In Hunt, the Supreme Court of Canada adopted the position that pre-charge delay can be considered in applications under s. 7 of the Charter where the applicant claims abuse of process leading to a finding that a proceeding was oppressive. Delay per se does not constitute abuse of process and cannot give rise to a stay of proceedings in the absence of Crown conduct affecting the trial fairness or tarnishing the integrity of the justice system: see R. v. Hunt, 2016 NLCA 61, 33 C.R. (7th) 321, at paras. 73-80. Pre-charge delay is relevant under ss. 7 and 11(d) of the Charter because it is not the length of the delay which matters but the effect of the delay upon the fairness of the trial.

[49] Isabelle Cunningham alleges, in her Notice of Application, that for a period of 21 months she was subject to the same allegations as Mark Cunningham in the POA Prosecution. While she alleges that the delay in commencing the Criminal Prosecution resulted in her being unable to lead evidence while fresh and available, she provided no example of evidence impacted in that manner. Mrs. Cunningham also alleges that the prolonged delay led to serious restrictions on her liberty. She provided no evidence of the same.

[50] The circumstances surrounding Isabelle Cunningham’s pre-charge delay fall squarely under the jurisprudence established by Hunt and her circumstances do not lead to a s. 11(b) Charter remedy.

Calculation of Net Delay

[51] Although my conclusion on the first issue is essentially dispositive of this Application, the applicable net delay in either scenario leads to the same conclusion.

Net Delay Commencing May 28, 2019 or February 23, 2021

[52] If the POA Prosecution formed part of the s. 11(b) analysis, the Court must start with the calculation of total delay. The relevant period is from the laying of the charge to the actual or anticipated end of the trial (end of evidence and argument). In this case, the period would extend from May 28, 2019 until September 15, 2023. Total delay would amount to 1571 days.

[53] If the s. 11(b) analysis begins with the Criminal Prosecution, total delay extends from February 23, 2021 to September 15, 2023. Total delay would amount to 934 days.

Defence Delay

[54] As previously stated, the issue of defence delay has two components – delay waived by the defence and delay caused solely by the conduct of the defence. Such delay excludes actions legitimately taken to respond to the charges. In this case, there is no waiver.

[55] The Crown alleges a number of periods of defence delay:

a. During the POA Prosecution, the Crown highlights that Mr. Cunningham did not attend court both immediately before the COVID shutdown and immediately after. He did attend his trial. The Crown claims defence delay of 200 days in the POA Prosecution.

b. From June 29, 2021 until August 19, 2021: The Applicants did not attend court on August 19, 2021 and a bench warrant was issued with discretion. The Crown claims defence delay of 51 days.

c. August 19, 2021 to September 3, 2021: On September 3, 2021, the Applicants were not ready to proceed at the OCJ JPT because they required more time to consider their election. The Crown claims defence delay of 15 days.

d. September 3, 2021 to September 24, 2021: On September 24, 2021, the Applicants wanted more time to confer with counsel and thus were not prepared to move the file forward. The Crown claims defence delay of 19 days.

e. From September 24, 2021 to October 22, 2021: Both accused refused to make their election and the OCJ judge elected on their behalf a trial in the Superior Court of Justice by judge and jury. The Crown claims defence delay of 28 days. The matter continued in the Superior Court.

f. October 29, 2021: At this JPT, the Court canvassed trial dates and offered a 7-day trial commencing on December 5, 2022. That date was not accepted even though it was over a year in advance. The Applicants claimed that a key witness was not available. Trial dates were eventually agreed to starting January 3, 2023 for a 9-day trial. The Crown claims defence delay of 29 days.

g. From January 9, 2023 to January 30, 2023: The Applicants did not attend at the trial and this led to the calling of a mistrial on January 30, 2023. The Crown claims defence delay of 21 days.

h. January 30, 2023 to March 27, 2023: Mr. Cunningham did not attend for the various to be spoken to dates in order to set a new trial date. The Crown claims defence delay of 56 days.

[56] I begin with the delay attributable to defence during the POA Prosecution. I disagree that each failure of Mr. Cunningham to attend trial on certain dates can be deemed defence delay because some of his failures to attend did not impact the scheduling of the trial. The trial dates were set in his absence. Further, the court cannot speculate if earlier dates could have been arranged if Mr. Cunningham were present. I attribute no defence delay to the POA Prosecution.

[57] Turning to the August 19, 2021 failure to appear, the Applicants did not furnish any evidence that the Court provided the wrong sign-in information for the virtual appearance. The Applicants argue that the Crown with whom they had been dealing did not respond to their email seeking login information. However, I am of the view that it was the Defendants’ responsibility to make the necessary arrangements and to know the call-in information required for the virtual appearance. They are responsible for their failure to attend and this cannot be inherent time.

[58] Turning next to the allegations that Justice Webber was somehow biased on September 3, 2023. This allegation is without merit. The Applicants sought further time to consider their election from an information sworn on February 23, 2021. They were not prepared to proceed and the fact that Justice Webber granted the adjournment is not determinative. That delay is not inherent to the proceedings when a party makes an unfounded allegation of bias. Even if the adjournment is granted, the time is attributable to defence delay as the Defence refused to proceed when the Crown and Court were ready.

[59] Turning to the various dates during the OCJ JPT when the Applicants were not prepared or refused to proceed with their election. The Court must be mindful that the revised indictment was sworn a few days before the September 24, 2023 appearance. In some circumstances, it may be reasonable to allow for some inherent time to consider the election. Had this adjournment been requested in March 2021, I would have considered some time as being inherent. However, in these circumstances, the initial criminal information was sworn on February 23, 2021. Seven months later, the Applicants had still not made their election. Furthermore, they did not use the period from September 24, 2021 to October 22, 2021 to make their election because they ultimately refused to make any election. I accept that there was a new information laid in September 2021 but this had no practical effect on the election. They never used the time requested to make that election and as such the request for time is not inherent because it was not legitimately used. Otherwise, the Crown was ready to proceed during the entire time from June 29, 2021 until October 22, 2021. I therefore include the entire period of 115 days as defence delay.

[60] Finally, in terms of the delay in setting the trial dates between December 5, 2022 until January 3, 2023, I am fully aware of the law that parties need not be in a perpetual state of readiness for the first trial date offered. However, in the present circumstances, the Applicants had already been delaying matters in the OCJ. By the time trial dates were offered some 13 months into the future, there was no attempt made to see if a particular witness could be available during the first two weeks of December 2022 or how this could be accommodated. The dates were refused by the Applicant and in these circumstances, this is properly deemed to be defence delay of 29 days: see Williamson, at paras. 21-22. I conclude that the overall defence delay from that period is 144 days.

[61] Finally, turning to the period from January 9, 2023 until March 27, 2023 (77 days), all this time is properly considered defence delay because Mr. Cunningham did not attend either the trial or the next appearances to set the new trial dates. Following the mistrial, Mr. Cunningham did not make arrangements to either attend or have someone attend on his behalf and the delay in setting new trial dates rests with him.

[62] I therefore calculate Net Delay as the following in the scenario where the POA Prosecution is the start date:

a. Total Delay: 1571 days.

b. Defence delay: 144 days + 77 days = 221 days

c. Net Delay: 1571 days - 221 days = 1350 days.

[63] When considering both criminal prosecutions, the period prior to February 23, 2021 is not considered because it is pre-charge delay. The total delay begins to run from February 23, 2021 until September 15, 2023. I therefore calculate Net Delay as follows:

a. Total Delay: 934 days.

b. Defence Delay: 144 days + 77 days = 221 days.

c. Net Delay: 934 days - 221 days = 713 days.

Discrete events: COVID-19 and Mistrial

[64] As previously stated, the Court of Appeal for Ontario has already identified the COVID-19 pandemic as a compelling example of an unforeseen and unavoidable exceptional circumstance. Accordingly, it was found to be a discrete event: see Agpoon, at para. 4. The remaining issue is: how does a court account for it?

[65] In the present case, the POA Prosecution was scheduled for trial on April 7, 2020. All Ontario courts closed for weeks, starting on March 17, 2020, in response to the COVID-19 pandemic. Accordingly, the trial was adjourned and the POA matter did not return to court until April 22, 2021. However, a new information was sworn on February 23, 2021 for the three Criminal Code charges of fraud, laundering of proceeds of crime and possession of proceeds of crime. The Criminal Prosecution proceeded through the OCJ for a series of JPTs and was unaffected by the pandemic.

[66] In the POA Prosecution, the effects of the COVID-19 pandemic were only felt from the April 7, 2020 automatic adjournment until the information was sworn in the Criminal Prosecution on February 23, 2021. That period comprises 322 days. Only the POA Prosecution matter was delayed by the pandemic. Once the Criminal Prosecution information was sworn, that matter proceeded, unaffected by the pandemic.

[67] The Crown suggests that the delay attributable from the COVID-19 pandemic should begin on December 13, 2019 when the trial dates were set as this time was lost due to the pandemic. To a minimum, the Crown argues that the discrete event starts on March 17, 2020. I disagree. The time from December 13, 2019 to April 7, 2020 is inherent time. It ran from the remand date until the start of trial and this is normal in every prosecution that there will be inherent time between the setting of a trial date to the start of trial to allow the parties to prepare for the trial. This is purely inherent time for a legitimate step in the proceeding. In this case, the pandemic only caused delay from April 7, 2020 until February 23, 2021.

[68] Accordingly, in the POA Prosecution scenario, I conclude that the COVID-19 pandemic was a discrete event and that the Net Delay must be reduced by 322 days to account for the adjournment of the POA trial.

[69] The Criminal Prosecution was unaffected by the COVID-19 pandemic.

Mistrial – January 30, 2023

[70] Turning to the characterization of the mistrial, I have already identified defence delay from January 9, 2023 to March 27, 2023. However, the Crown argues that the mistrial is a discrete event which should be deducted from the Net Delay. In particular, the Crown argues that the entire period from January 30, 2023 until the end of trial should be deducted from Net Delay. The period from March 28, 2023 to September 15, 2023 amounts to 171 days.

[71] The Applicants rely on R. v. Clifford, 2022 ABQB 509, in support of their contention that a mistrial does not amount to exceptional circumstances in all cases.

[72] When considering if a mistrial amounts to a discrete exceptional circumstance, the Court of Appeal for Alberta in R. v. Way, 2022 ABCA 1, 408 C.C.C. (3d) 506, supported the notion that not every mistrial will justify a deduction of delay as an exceptional circumstance. For example, cases where there is prosecutorial misconduct leading to a mistrial do not amount to exceptional circumstances beyond the Crown’s control. Each case must be assessed on its own facts.

[73] In the present case, the mistrial was the result of Mr. Cunningham’s failure/inability to attend his jury trial in January 2023. The notion of fault or the legitimacy of Mr. Cunningham’s illness need not be determined and in addition, the record does not allow me to assess the circumstances surrounding Mr. Cunningham’s illness. Mr. Cunningham did not attend at his trial on and after January 9, 2023 and this resulted in the January 30, 2023 mistrial. This is clearly a circumstance which was beyond the Crown’s control and which it could not cure. It was not reasonably foreseeable.

[74] The period of delay from the mistrial is from January 30, 2023 to September 15, 2023 and amounts to a discrete exceptional circumstance. I have already determined that the period from January 9, 2023 to March 27, 2023 is defence delay and this time has been counted. This leaves the 171-day period from March 28, 2023 to September 15, 2023 which is deducted from the Net Delay as the remaining impact of the mistrial.

Conclusion

[75] For the reason set out above, I conclude that the Net Delay in the POA Prosecution scenario is 1350 days. From that, I would deduct 322 days for the COVID-19 pandemic as a discrete event and 171 days for the mistrial as a discrete event. The remaining delay is thus 857 days and is below the presumptive ceiling.

[76] When considering the period of both the Criminal Prosecution and the Second Criminal Prosecution, the Net Delay is 713 days. I deduct 171 days for the mistrial, leaving a remaining delay of 542 days which is well below the presumptive ceiling.

[77] The Applicants presented no argument that the remaining delay in either circumstance was unreasonable.

[78] I find that the Applicants’ rights under s. 11(b) have not been infringed. The Applications for a stay of proceedings by both Mr. Cunningham and Ms. Cunningham are dismissed.

JUSTICE MARC R. LABROSSE

Released: August 10, 2023