Court File and Parties
COURT FILE NO.: CR-22-100000301-0000 DATE: 20230802 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King, Respondent v. Stephanie Wiseman, Martin Levy, Jermaine Watson, Kristopher Matthews, Jevaughn Myers and Zeyu Zang, Defendants/Applicants
BEFORE: S.F. Dunphy J.
COUNSEL: Erin Pancer and Colin Sheppard, for the Crown Jessica Zita, for the Applicant Stephanie Wiseman Humza Hussain, for the Applicant Martin Levy Geoff Haskell, for the Applicant Jermaine Watson Elliot Willschick, for the Applicant Kristopher Matthews Trevor Lau, for the Applicant Jevaughn Myers Melina Macchia, for the Applicant Zeyu Zang
HEARD at Toronto: July 31, 2023
Reasons for Decision - 11B Application
[1] The defendants are each charged with kidnapping and, in the case of the defendants Matthews, Myers and Zang, with administering a stupefying drug with intent contrary to s. 279 and s. 246(b) respectively of the Criminal Code. The six have each brought applications seeking a stay of proceedings as against them on the basis that delay of up to 44 months since the date of their arrest until the anticipated completion of their five week trial scheduled to begin on September 11, 2023 violates their constitutional right to trial within a reasonable time contrary to s. 11(b) of the Charter of Rights and Freedoms.
[2] For the reasons that follow, the applications are dismissed. The anticipated delay through to the end of trial is expected to be between 32.5 months and 44 months in the case of each of the six applicants and is thus beyond the presumptive 30-month delay contemplated by the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631. While there is evidence that might permit me to make findings of a degree of defence delay arising from dates having been available to the Crown and Court but not to some of the defence lawyers, I did not find it necessary to attempt to calculate defence delay with precision. Rather, I find that the Crown has established exceptional circumstances arising from the Covid emergency and the complexity of this case that make it unnecessary to parse through each appearance to make finer attributions of the cause of delay than this. In light of the delay and additional required time fairly attributable to these two factors, this case could not reasonably have been brought to completion within the Jordan thirty-month presumptive window. The time required to complete this trial will not violate the right of any applicant defendant to a trial within a reasonable time.
Background Facts
[3] The allegations giving rise to these charges may briefly be summarized as follows. Mr. Wenbo Jin was a University of Toronto visa student from China living in an apartment near the U of T campus. In the early morning hours of January 21, 2020, he was awakened by two men in his bedroom whose faces were masked, one of whom carried a gun. He was bound by his hands and feet, was made to swallow certain pills to put him to sleep and tape was applied to his eyes and mouth. He was then put into a hockey bag and into the back of a waiting vehicle which drove him to a Richmond Hill address where he was held captive for 13 days while ransom demands were made of his family in China.
[4] Mr. Wenbo Jin was ultimately found and liberated from his captors on February 2, 2020. The investigation that preceded and followed his liberation was a large and intensive one. It involved the Cybercrimes Unit, the Organized Crime Enforcement Unit, the 52 Division Major Crime Unit, Professional Standards, and the Emergency Task Force of Toronto Police Service as well as the RCMP and the Hong Kong Police Service. The investigation sought and obtained numerous emergency production orders and warrants from multiple locations and involving multiple electronic devices and phones.
[5] The defendants Wiseman, Levy and Myers were arrested in or while attempting to escape from the Richmond Hill residence where Mr. Wenbo Jin was finally discovered to be held on February 2, 2020. Mr. Zang was arrested the next day following the execution of a further search warrant. The defendant Matthews was arrested on March 4, 2020. The defendant Watson was arrested on February 2, 2021 one year after the first arrests were made. The latter two defendants were arrested as a result of fingerprints, cell phone, video and other forensic evidence connecting them to the kidnapping that surfaced during the extensive police investigation that followed the location and liberation of Mr. Wenbo Jin.
[6] Following three judicial pre-trials in the Ontario Court of Justice between June and September 2020, the parties were able to schedule an appointment via conference call before the trial coordinator on November 5, 2020 to schedule a seven day preliminary inquiry. The first date on which Crown, defence and court were able to confirm availability for this purpose was October 25, 2021.
[7] The foregoing summary of the procedural history of the case omits numerous court appearances necessitated by the various bail issues that needed to be addressed for each of the defendants among other things. All of the defendants with the exception of Mr. Zang have been represented by counsel throughout or from the relatively early stages of the progress of this case. Mr. Zang was self-represented until after the July 12, 2022 judicial pre-trial where the September 11, 2023 Superior Court trial date was fixed.
[8] There were scheduling delays affecting the timing of the judicial pre-trials to accommodate the calendars of some defence counsel that I have not outlined here but which figure in the Crown’s calculation of defence delay. There were dates offered for the preliminary inquiry in March and April of 2021 which were not able to be accepted due to scheduling conflicts affecting one defence counsel. The Crown attributes a total of nine months and six days to defence delay impacting the scheduling of the judicial pre-trial needed to secure the ability to seek a preliminary inquiry date and the inability to accept earlier appointments for the preliminary inquiry offered. As indicated in the introduction above, I have not found it necessary to consider the Crown’s submissions in support of attributing defence delay to these time periods as a result of my conclusions regarding exceptional circumstances.
[9] Although arrested one year into the process, Mr. Watson and his counsel made efforts to “catch up” to the progress made in the case prior to his arrest and no delays in the subsequent progress of the case appears to be attributable to his comparatively late addition to the process. The timing of his arrest has not materially impacted the pace with which this matter has moved through the courts.
[10] The preliminary inquiry proceeded on the scheduled date before Favret J. but was not able to proceed beyond the completion of the evidentiary portion of the hearing in the allotted time. A total of thirteen viva voce witnesses were heard from. In addition, the Crown filed an extensive Comprehensive Synopsis pursuant to s. 540(7) of the Criminal Code but this was required to be read into the record in small pieces to permit simultaneous translation for Mr. Zang, a process that consumed approximately 2.5 days of the hearing. In addition, there were numerous technical issues encountered by the parties in running a Zoom hearing of this complexity in a court that was still learning to accommodate virtual hearings over this platform. By the third day of the hearing, Favret J. estimated that a full day of court time had been lost to the various technical issues that had arisen in the hearing to that point.
[11] There were both good sides and bad of the manner in which preliminary inquiry unfolded. On the “good” side of the ledger, the parties appear to have collaborated well in scheduling the various witnesses requested by the defence in a manner that permitted each counsel wishing to examine them to be present in person while relying on agents or junior counsel to be present on other days. Mr. Watson’s counsel took steps to catch up to the process and participated in the preliminary inquiry despite his client’s later arrest date. A total of thirteen witnesses were able to be heard from. On the less positive side of the ledger, the technical difficulties encountered were material. Prominent among these were the difficulties experienced in attempting to accommodate interpreters and simultaneous translation needed for the defendant Zang in the context of a Zoom hearing. This was not a simple problem to solve then or now. There were issues with the detention centres where defendants in custody were attempting to attend the hearing virtually while at institutions that were still going through the teething process of learning to accommodate virtual hearings. Certain counsel encountered issues along the way as well arising from connection issues and when defense counsel were attended medical appointments. All of these contributed to the loss of about a day of hearing time.
[12] At the conclusion of the seven booked days for the hearing on November 2, 2021, the parties agreed to a schedule for the filing of written submissions leading to a further November 24 hearing date before Favret J. for submissions. The parties agreed that all submissions would be filed by November 16, 2021 with Favret J. having agreed to a day’s grace (to November 17) for one defence counsel. As matters turned out, one defence counsel failed to meet the deadline or to seek leave for missing it by two days. The Crown’s committal submissions were 111 pages in length. Defence counsel submitted a total of four briefs totaling 90 pages. Mr. Zang eventually filed written submissions (17 pages in length) but not until February 23, 2022 (further reply submissions were submitted after that as well).
[13] As a result of the late filing, the volume of materials filed and the limited time available for review of these filings, Favret J. cancelled the November 24 hearing date and directed the parties to obtain a new date. The Crown coordinated availability of counsel. A January 5, 2022 date could not be retained because one defence counsel was unavailable. The first date on which Crown, defence and Court could all be available was February 28, 2022. This date was selected.
[14] The matter was not completed on February 28, 2022 either. The oral submissions and reply were not completed. The earliest date that could be arranged to resume the hearing was March 31, 2022. The day prior to that hearing however, one of the defence counsel came down with Covid and the matter was required to be adjourned to April 11, 2022. The hearing was completed on that date and Favret J. indicated that she would reserve April 29, 2022 to hand down her ruling.
[15] Ultimately, Favret J. was required to defer the date for handing down her committal ruling until May 17, 2022. On that day she handed down her ruling committing all accused on all counts. While written reasons were expected to be delivered, their absence has played no material role in the subsequent unfolding of events. No application for certiorari has been made.
[16] The initial Superior Court appearance was made on June 6, 2022 and the matter was put over to July 7, 2022. On July 7, 2022 a judicial pre-trial was held before Forestell J. who noted that a seventh co-accused had been arrested and was being added to the indictment by way of direct indictment. A further judicial pre-trial was held on July 12, 2022 and the current September 11, 2023 trial date was confirmed at that time. The trial coordinator’s memo indicates that trial dates of April 24, 2023 and May 22, 2023 were available to the court but were unavailable to one defence counsel (a different counsel for each such date). September 11, 2023 was the first date on which all counsel could be available for a five week jury trial. Pre-trial motion dates were also confirmed at that time.
Issues to be Argued
[17] There is no question that the “exceptional circumstances” exception to the presumptive 30-month period of reasonable delay in conducting a Superior Court trial applies in this case. The issues where disagreement primarily lies concern the matter of complexity and its proper application in this case as well as the degree of delay attributable to the Covid pandemic. I shall address each of these in turn.
Analysis and Discussion
(a) Exceptional Circumstances – Complexity
[18] Up until the reception of this matter into Superior Court in June, 2022, this indictment concerned six co-accused, one of whom was self-represented and required simultaneous translation services. A seventh co-accused was arrested and added to the proceeding shortly thereafter by way of direct indictment and Mr. Zeng was able to arrange to retain counsel for the trial a few weeks later.
[19] Prior to any consideration of the inherent complexity of the trial itself and the various issues that will need to be addressed in it, there is a degree of complexity that applies to cases such as this involving multiple co-accused. The circumstances of this case clearly demonstrate that principle. Whether characterized as defence delay or delay attributable to the complexity associated with navigating through the pre-trial process with so many parties, the following delays readily jump off the page from the very high-level summary that I have reviewed above:
a. Approximately 2 months of delay arising from the unavailability of one defence counsel for a third judicial pre-trial required to enable the trial coordinator to schedule a meeting to confirm potential dates for a preliminary inquiry;
b. Approximately 7 months of delay arising from the unavailability of one defence counsel for earlier preliminary inquiry dates after an appointment before the trial coordinator was obtained;
c. Approximately 3.5 months of delay in completing submissions on committal arising from the number, size and in one case late filing of the parties’ written submissions on committal;
d. Approximately 4.5 months of delay encountered in scheduling the trial date (one of seven sets of counsel being unavailable for the earliest otherwise available trial date).
[20] The forgoing list of delays amounts to approximately seventeen months. Whether these are attributed to “defence delay” or the exceptional circumstance of complexity is a distinction without a difference in the real world. Even that rough tally fails to do adequate justice to the additional time required to shepherd even the simplest of matters involving so many different sets of busy counsel with separate calendars through the system.
[21] The Crown’s responding record contains ample evidence of the complexity of trying to co-ordinate so many calendars and is replete with candid contemporary expressions of her frustration in doing so. For each of the numerous judicial pre-trial dates (a total of five in OCJ and SCJ combined) and the hearing dates finally obtained, Crown counsel was required to canvass available dates over multiple time frames, to identify points of divergence and convergence between them, to canvass with the parties possible solutions for date conflicts arising etc. While the delays identified above have arguably also been impacted by Covid due to the ripple effects on the calendars of all affected parties inherent in trying to catch up on lost time due to court closures, they also understate to an unknowable degree delay attributable to dates that might have been available if fewer counsel and fewer potentially conflicting calendars had been involved.
[22] The point of the forgoing thought exercise is not to suggest that complexity due to multiple parties is something that can be gauged with precision and nothing in the foregoing is intended to cast aspersions on one or the other defence counsel for not being magically available on the precise date that happens to have coincided with openings in the calendar of the court and or of other counsel in the matter. To the contrary, as far as I have been able to ascertain from my review of the very voluminous record filed by counsel for this application, the parties and the system worked more or less as they are supposed to and in accordance with the best traditions of the bar.
[23] Defence counsel coordinated their attendance at the preliminary inquiry, for example, in a way that ensured that all could be present for those portions of it of most importance to them. Appropriate flexibility and pragmatism appears to have been shown where needed. By the same token, I find nothing in the Crown’s conduct of the matter to this point that is indicative of any failure to take the initiative in keeping this matter moving. The Crown was clearly pro-active throughout in staying ahead of scheduling issues and in obtaining a range of potentially workable dates.
[24] I reject any suggestion that the Crown somehow “failed to react” to the growing delay as the preliminary inquiry unexpectedly took approximately six months longer than expected to produce an outcome. At each step along that delay path, the Crown was pro-active in attempting to minimize the delay and had no control over the calendars of defence counsel whose lack of openings on relatively short notice accounted for the bulk of that time. While some of the defendants indicated a willingness to waive committal to move things forward as the delay grew, one defendant was not prepared to do so. As the saying goes, close only counts in horseshoes. Absent unanimous waiver of committal, a decision was required.
[25] This is not a case where severance of one or more defendants from the indictment could reasonably have been contemplated. All defendants are charged with the same crime committed in the same circumstances even if the role played by each varied. The suggestion that the Crown ought to have considered direct indictments is not one that any counsel recommended at the relevant time and the process required to do so is an involved and time consuming one at all events.
[26] I reject the suggestion that the Crown needlessly complicated the progress of this case by seeking (and obtaining) committal on the charge of extortion and then deciding not to proceed with that charge. As noted, Favret J. committed on all charges including extortion and the Crown’s tactical decision to remove a viable charge from the indictment to facilitate the jury’s task is not one that can be faulted or second-guessed in the context of this type of application. That decision had no material bearing on the time taken prior to trial. The suggestion that this somehow indicates a lack of understanding by the Crown of its case is simply an absurd one.
[27] The foregoing discussion of complexity only scratches the surface of the manner in which the complexity of this case has taken it outside of the normal Jordan framework. The number of witnesses that will likely be required for this jury trial is very significant. Each requires trial preparation time and their attendance must be coordinated. The investigation of this case entailed a large number of emergency orders secured in the (successful) attempt to locate the victim held against his will. Numerous warrants were sought and executed upon; electronic devices were seized and forensically searched. Motions to challenge some of these investigative steps may arise (and did arise). Given the scope and complexity of the investigation undertaken in this case, the disclosure required to be assembled – and assembled in the challenging circumstances of Covid lock-downs with no access to offices and working from home – was massive.
[28] A review of the written submissions filed by the parties at the committal hearing gives a good impression of the number and complexity of the factual and legal issues that had to be wrestled with at the committal stage and that will undoubtedly require addressing at the trial stage as well. Hundreds of pages of written submissions were prepared to address these issues at the preliminary inquiry.
[29] I have no hesitation in concluding that this case is a “particularly complex” matter as described in Jordan and by the Court of Appeal in Ontario (Labour) v. Nugent, 2019 ONCA 999. Cases such as this were intentionally exempted from the thirty-month presumptive ceiling established in Jordan.
[30] I am satisfied that the Crown and the Court system itself have each taken all reasonable steps to mitigate the delay that has unavoidably arisen by reason of the complexity of the case. The Crown has been proactive and frankly tireless in taking the lead on the effort to coordinate calendars throughout. I can find no fault in decisions taken as regards whether to prefer an indictment or to proceed with (or withdraw) the extortion charge. The joinder of the parties on a single indictment was obviously reasonable. While the applicants have criticized the Crown for “lacking a plan” to mitigate delay, no concrete criticisms - whether of actions taken or not taken – have been made that stand up to scrutiny.
[31] As I shall be discussing in the next section, both the OCJ and this court have adapted and continue to adapt to the post-Covid world in ways to mitigate the impact of this unforeseen event upon the constitutional right to trial within a reasonable time. In particular, the fact that the parties appeared before Forestell J. on July 12, 2022 after a May 17, 2022 committal order and were able to secure a five week jury trial date as early September 11, 2023 is nothing short of a secular miracle and I have no doubt that heaven, earth and very likely several planets besides were moved to make this happen. The backlog that built in the jury trial list in Ontario in general and Toronto in particular during Covid was very significant. While reduced, that backlog is still being worked through to this day.
[32] Having regard to the particularly complex nature of this case, I find that the time taken and projected to be taken to bring this trial to a conclusion has not and will not violate the rights of the applicant defendants to trial within a reasonable time.
(b) Exceptional Circumstances – Covid
[33] My conclusions in relation to the particular complexity of this matter are sufficient to dispose of this matter. It must be observed however that there is a significant degree of overlap in this case at least between the particularly complex exceptional circumstance and the Covid 19 exceptional circumstance. It is therefore relevant to discuss the impact of Covid here as well.
[34] This case was born virtually on the eve of the Covid pandemic bringing our criminal justice system to a near complete halt for an extended period of time. There is nothing “discrete” about that event – it was a general, systemic disruption. However, for all of its generality and systemic nature, the Covid pandemic also fits quite squarely within the Jordan framework which was intentionally open-ended and adaptable to unforeseen and unforeseeable circumstances. The pandemic was unforeseeable and the justice system did not have the capacity to absorb its impact without affecting trial times.
[35] The impacts of Covid upon the progress of this case were many, significant and on-going. I cannot disagree too strongly with the suggestions made during argument of this application that Covid had only a minor impact on this case because of where matters stood on particular dates when particular steps in the reaction to Covid were taken in the court system. This and every case in the justice system has been profoundly impacted by Covid because its impact was systemic.
[36] The Court of Appeal has provided a helpful summary of the various lock-down and court closure orders in R. v. Agpoon, 2023 ONCA 449, a case to which I shall return shortly. I will not repeat that useful summary here. However, it seems clear to me that the systemic nature of the disruptions caused by Covid needs underlining here.
[37] Any such analysis must start with the premise that the justice system is not built like an accordion that can expand and contract at will. The “supply” of justice is subject to tangible limitations that can only be expanded gradually and over time. Court houses are finite and expansion takes years of planning and time. Court staff require recruiting and training, court infrastructure and systems require time to be developed and refined. Judges and lawyers all take years of training. The “demand” for justice waxes and wanes based upon the interaction of numerous other factors that scholars will debate until the final bugle is sounded.
[38] A sudden choking off of “supply” of justice cannot be responded to with an equally sudden expansion of that supply. The constitutional right to a jury trial cannot simply be suspended while the system rights itself. The right to challenge the validity of warrants cannot be suspended to speed up the pre-trial process. There are systematic limitations on how such a crisis can be adapted to and how long it takes to adapt to it.
[39] This case was still in its initial intake phase when the initial lockdown occurred. The history of this case illustrates well both the ripple effects of lockdowns that are felt long after the lockdowns are ended and the impact of the various mitigation strategies that were very quickly put into place.
[40] In addition to dealing with bail issues, for the first few months, the Crown was organizing disclosure. Such a simple statement does not do justice to the task actually undertaken. For long periods of time, Crown counsel had no access to their offices at all. All work had to be undertaken from home subject to the pressures, distractions and vagaries of available resources, internet connections etc. that this implies. Police too were subject to similar restrictions. The difficulties inherent in the task of compiling what would have been time consuming and complex disclosure in those circumstances cannot easily be overstated.
[41] While some judicial pretrials eventually got scheduled and tentative progress was made during the initial lock-down period, none of this was taking place at anything like normal speed and capacity. Judges and counsel were working from home and operating under similar constraints. As the first tentative court re-opening was phased in, the ripple effects began to manifest themselves almost immediately. Crime did not magically vanish during the lockdown. Arrests continued to be made and more “inventory” in the criminal justice system was continually being added. Missed hearing dates had to be rescheduled. Court calendars and lawyer’s calendars were all quickly filling with re-booked hearings and with new matters both. The trial coordinators, also working from home for much of the time period, had to juggle multiple sets of conflicting demands. The pandemic continued to wreak havoc in unpredictable waves. Additional demands on the system were continually being made as hearings would go down on short or no notice when one or more of the necessary participants took ill had had to quarantine. This added still more cases that needed to be rescheduled to an already stressed and backlogged system.
[42] The court system adapted and adapted quickly. From telephone hearings being a rare and occasional adjunct to the system, we evolved to their routine use for large categories of hearings. Digital filing of documents went from being a multi-year almost futuristic project to being an accomplished reality almost overnight. Virtual hearings and a little-known piece of software called “Zoom” became standard practice within only a few weeks. The software itself evolved to attempt to accommodate things like multiple language tracks and recordings. Co-ordinated efforts to favour early resolution of cases were put in place and proved quite successful as were efforts to streamline and facilitate the process of re-electing to judge-alone trials as the jury backlog began to grow. Judges continued to be appointed and to retire but the capacity to integrate new judges into a functioning system but in a purely virtual environment needed further adaptation. Detention centres had to learn how to have multiple hearings being conducted at once from facilities never designed for the purpose of conducting such hearings. Courtrooms were adapted with partitions, some courtrooms served double-duty as socially distanced jury rooms. In Toronto, the Convention Centre was put to use in selecting juries during the first tentative re-start of jury trials to facilitate social distancing with large jury panels.
[43] All of these developments took time and encountered difficulties and teething pains as they were experimented with and ultimately rolled out. Some of the building backlog was able to be dealt with but not all and of course new cases continued to be added to the system.
[44] While there is every likelihood that the system is emerging stronger, more efficient and more resilient from the experience, I have tried to illustrate how futile it is to attempt to micro-calculate the precise impact of Covid on a particular case. As backlogs grew, the ripple effects of those backlogs magnified the impact still further. The capacity of the entire system was and remains under the strain caused. It is not constitutionally reasonable to expect to respond to that strain instantaneously as long as the reactions have themselves been measured and reasonable. Any objective observer informed of the facts would have to agree that our system has performed feats of adaptation that few would have thought possible. The reaction has been more than reasonable such that the degree of delay still being experienced cannot be characterized as constitutionally unreasonable.
[45] While there are clearly a number of distinctions that might be made between this case and Agpoon, the approach to the exceptional circumstance of Covid applied in that case and its reasoning also requires the dismissal of these applications.
[46] Agpoon was a case involving three co-accused charged with human trafficking and firearms offences. Two of the accused were charged in 2018 and a third was charged in 2019. The case was about to begin the preliminary inquiry when the pandemic began. The preliminary inquiry was re-scheduled to begin on May 31, 2021. On the eve of the commencement of that re-scheduled hearing, the Crown elected to prefer a direct indictment. This enabled the case to proceed directly to obtain the earliest possible date for a jury trial in Superior Court. The trial judge stayed the trial after conducting a detailed assessment of the impact of each phase of the lock-down and re-opening process on this case and reasoned that if a preferred indictment had been made earlier in the process then a lesser delay would have resulted.
[47] The Court of Appeal disagreed with what it described as the “complicated micro-counting” approach taken and with the second-guessing of the Crown’s exercise of its discretion to proceed by way of direct indictment and the timing of that decision. Rather, the Court found that the entire 14 month period between the closing of the courts on March 17, 2021 and the day the Crown preferred the indictment on May 26, 2022 should be counted as the discrete exceptional circumstance of Covid.
[48] Agpoon was not required to assess Covid-related delay after May 26, 2021 and the first stay decision appealed from occurred in May 2022. In the present case, the case will have been in the Superior Court for a little more than sixteen months through to the anticipated end of trial. This compares to the roughly twelve months typically allowed to the Superior Court in the “standard” Jordan timeline of 30 months for Superior Court matters and eighteen months for provincial court matters. I have already found even this time in the Superior Court system to be exceptional in the sense of exceptionally fast. Applying Agpoon to the facts of this case, the exceptional circumstance of Covid clearly accounts for sixteen months or more of the delay to the end of trial in this case. A more precise calculation is not required given the arrest dates here. The time to the end of trial has not violated the rights of any applicant to trial within a reasonable time for this reason as well.
Conclusion and Disposition
[49] For the foregoing reasons I conclude that the anticipated completion date of this trial does not result in the s 11(b) Charter right to a trial within a reasonable time of any of the applicant defendants being breached. Whether examined in light of the exceptional circumstance of particular complexity or of the exceptional circumstance of Covid separately or collectively, the result is the same. The applications are thus all dismissed. The parties were all remanded to the trial date of September 11, 2023 at the close of the oral argument of these applications on July 31, 2023. Those defendants unable to be present at the time of the delivery of my decision today consented to my release of this decision and these reasons in the presence of their counsel today.
S.F. Dunphy J. Date: August 2, 2023