Court File and Parties

Court File No.: CR-21-5309 Date: 2023-01-19 Ontario Superior Court of Justice

Between: His Majesty The King And: Kyle Hanna, Keermaro Rolle and Tameko Vilneus, Accused

Before: Carroccia J.

Counsel: Nicole Lamphier and Delia Greco, for the Crown Harpreet Saini for Kyle Hanna Frank Retar for Keermaro Rolle Christopher Hicks and Tamaira Davidson for Tameko Vilneus

Heard: November 24, 2022

Ruling on s. 11(b) Charter Application

Introduction

[1] The accused were all initially arrested, and charged with the following offences, which were alleged to have occurred in the City of Windsor on April 1, 2020:

Count #1. First degree murder to the person of Madisen Gingras, contrary to s. 235(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46;

Count #2. Attempted murder of Jacob Reaume by discharging a firearm, contrary to s. 239(1) of the Criminal Code;

Count #3. Unlawful confinement of Jacob Reaume, contrary to s.279(2) of the Criminal Code;

Count #4. Committing an assault on Jacob Reaume, by choking, suffocating or strangling him, contrary to s. 267 (c) of the Criminal Code;

Count #5. Unlawful confinement of Madisen Gingras, contrary to s. 279(2) of the Criminal Code;

Count #6. Committing an assault on Madisen Gingras, by choking, suffocating or strangling her, contrary to s. 267 (c) of the Criminal Code;

Count #7. Without lawful excuse, use a firearm, namely a handgun, in a careless manner, contrary to s. 86(1) of the Criminal Code;

Count #8. Without lawful excuse, possessing a prohibited/restricted firearm, namely a handgun, without being the holder of a licence permitting such possession and the holder of registration certificate for the said firearm, contrary to s. 91(1) of the Criminal Code;

Count #9. Without lawful excuse, occupy a motor vehicle knowing that there was in that motor vehicle a prohibited firearm, restricted firearm or non-restricted firearm, namely a handgun, which was not a replica firearm, contrary to s. 94(1) of the Criminal Code;

Count #10. Without lawful excuse, possess a loaded prohibited firearm, namely a handgun, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to s. 95(1) of the Criminal Code;

Count #11. With intent to endanger the life of Jacob Reaume, discharge a firearm, namely a handgun at Jacob Reaume, contrary to s. 244(1) of the Criminal Code;

Count #12. With intent to endanger the life of Madisen Gingras, discharge a firearm, namely a handgun at Madisen Gingras, contrary to s. 244(1) of the Criminal Code.

[2] The Crown is now seeking to proceed to trial on counts 1 and 2 only and has withdrawn the balance of the charges and filed a new Indictment containing only those charges. The trial is scheduled to commence with jury selection on February 13, 2023. The accused have brought an Application alleging a violation of their right to be tried within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms and they seek a stay of the charges pursuant to s. 24(1) of the Charter.

[3] In Regina v. Jordan, 2016 SCC 27, at para 3, the Supreme Court of Canada reaffirmed the fundamental principle that an efficient criminal justice system is of the utmost importance, and the ability to provide for trials within a reasonable time is an indicator of the proper functioning of that system.

The Position of the Parties

[4] The parties agree that the charges were laid on April 8, 2020, and that the trial is scheduled for three months commencing February 13, 2023, and concluding on approximately May 12, 2023. Therefore, the total delay is anticipated to be 37.12 months or 1129 days. This calculation is made in accordance with the formula set out in Regina v. Shaikh, 2019 ONCA 895 [^1].

[5] The defence submits that a review of the totality of the history of this matter suggests that the delay in bringing the accused to trial is unreasonable and exceeds the presumptive ceiling. Further, it is not justified by exceptional circumstances or particular complexity, and the charges ought to be stayed.

[6] The Crown submits that after deducting defence delay and delay resulting from exceptional circumstances caused by the ongoing COVID-19 pandemic and the particular complexity of this case, that the delay falls below the presumptive ceiling and a stay of proceedings is not warranted.

The Analytical Framework

[7] In Jordan, at para. 49, the Court sets out the ceiling beyond which delay is presumptively unreasonable. Although these principles are well known to participants in the criminal justice system, they bear repeating. For cases going to trial in the Ontario Court of Justice, the presumptive ceiling from the date of charge to trial is 18 months. For cases going to trial in the Superior Court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.

[8] In Rex v. Zahor, 2022 ONCA 449 at paras. 60-76, the Ontario Court of Appeal succinctly sets out the framework for evaluating an application under s. 11(b) of the Charter in accordance with the principles outlined in Jordan.

[9] According to Zahor, this court must undertake the following analysis when determining such an application:

• Step 1: Calculate the total delay from the laying of the charge to the actual or anticipated end of the trial.
• Step 2: Calculate the net delay by subtracting defence delay from total delay. There are two types of defence delay:
  • Step 2(a): Subtract delay that is waived by the defence.
  • Step 2(b): Subtract delay that lies at the feet of the defence, that is delay that is caused solely or directly by the defence’s conduct.
• Step 3: Compare the net delay to the applicable presumptive ceiling. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.
• Step 4: Consider exceptional circumstances. These are circumstances beyond the Crown’s control that are reasonably unforeseen or reasonably unavoidable.
  • Step 4(a): Consider discrete exceptional circumstances, which are unexpected and uncontrollable happenings which lead to delay.
  • Step 4(b): Consider complexity.
• Step 5: Consider transitional exceptional circumstances for cases that were in the system prior to the decision in Jordan.

[10] If the total delay from the charge to the anticipated end of the trial, minus defence delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, whether it be discrete exceptional circumstances or complexity. If they are unable to do so, the delay will be considered unreasonable, and a stay will follow (Jordan at para. 47).

Analysis

Step 1: Calculate the total delay:

[11] The information was sworn on April 8, 2020, the accused were all arrested on May 8, 2020, and the trial of this matter is anticipated to conclude around May 12, 2023. The Crown and defence are in agreement that the total delay is therefore 1129 days or 37.12 months [^1].

Step 2: Calculate the net delay:

[12] The next step to be undertaken in applying the framework outlined above is to calculate the net delay by subtracting defence delay from the total delay.

[13] Defence delay is comprised of those periods of time that are waived by the defence, and delay that is “caused solely or directly by the defence’s conduct” (Jordan at para. 66). This includes those periods of time where the court and Crown are ready to proceed but the defence is not but does not include defence actions legitimately taken to respond to the charges.

[14] There are no periods of time that were waived by the defence. The Crown is not alleging that there are.

[15] The defence takes the position that there are no periods of time that are attributable to defence delay and therefore no periods of time to be deducted in this calculation.

[16] The Crown argues that there are two periods of time that warrant a deduction for defence delay. They are as follows: (i) the time to schedule a Judicial Pretrial (JPT) in the Ontario Court of Justice, and (ii) the period of time relating to the scheduling of a Preliminary Inquiry date in the Ontario Court of Justice.

Scheduling the JPT Date in the Ontario Court of Justice

[17] On August 7, 2020, Ms. Lisa Carnelos who was representing the accused, Vilneus at the time, advised the Crown by email that while she had not yet received all the disclosure, she was prepared to schedule a Judicial Pre-trial (JPT) or Preliminary Hearing date. The Crown agreed that they should be “moving to the JPT/set PH stage” [^2]. Subsequent emails exchanged on August 25, 2020, reflect that Ms. Carnelos advised all counsel that she would not be available to conduct the JPT until the “week after Thanksgiving” almost six weeks later. Counsel then sent an email to the Trial Coordinator seeking a pre-trial date the week of October 13, 2020.

[18] Counsel for Mr. Rolle and Mr. Hanna indicated that they had earlier dates available, but agreed to setting the JPT on October 15, 2020. The Crown argues that the 42 days from the first available dates for counsel to the date that was actually scheduled for JPT should be considered defence delay.

[19] That period of time can only be attributed to defence delay if it is delay caused solely and directly by the conduct of the defence, or if the Court and the Crown are ready to proceed, but the defence is not (see Jordan at para. 64). While it appears that the matter was set for JPT in accordance with the request of counsel for Vilneus at the time, what is not clear is whether the court was prepared to accommodate an earlier JPT. Without evidence that the court had earlier dates available, I am unable to consider this period of time defence delay.

Scheduling of the Preliminary Inquiry Date

[20] On October 18, 2020, after the JPT was conducted, Mr. Saini communicated with the Crown, the trial coordinator and other counsel to canvass Preliminary Inquiry dates indicating that five weeks would be required and that he was available anytime after March 29, 2021. [^3] The trial coordinator indicated that she would begin looking for dates commencing in June to September 2021 and requested that counsel provide their availability.

[21] On October 27, 2020, after receiving a reply from all counsel as to their availability, the trial coordinator offered June 7, 2021, as the first date available for the court, and 51 additional dates between that date and October 1, 2021. At the appearance in the Case Management Court on October 28, 2020, [^4] Mr. Saini advised the Justice of the Peace presiding that they were attempting to schedule Preliminary Inquiry dates and he was available on the earliest dates, but “other counsel have far less availability than me”. Ultimately, the matter was scheduled for Preliminary Inquiry on consecutive days, at the request of counsel from September 27, 2021 to October 29, 2021.

[22] The first date on which the Crown and court were prepared to proceed, but defence was not, was June 21, 2021. The defence expressed a preference for consecutive dates and so the Preliminary Inquiry was ultimately scheduled to commence on September 27, 2021.

[23] The Crown in their Factum asks the court to deduct 39 days from the projected end of the Preliminary Inquiry had it been scheduled on the earliest date available to the Court and the Crown to the actual end of the Preliminary Inquiry. I do not agree that this is the appropriate method to calculate this delay. In my view, defence unavailability resulted in the Preliminary Inquiry being delayed from June 21, 2021 until September 27, 2021, a period of 98 days.

[24] I recognize that the period of time when counsel is unavailable is not always considered solely defence delay, and the court must look at all the circumstances. [^5] However, in this case, it appears that the reason why the matter did not proceed on earlier dates, despite counsel having earlier dates available, is solely due to the fact that counsel preferred to schedule the Preliminary Inquiry on consecutive dates instead of having it dealt with in two to three day blocks of time over a period of several months.

[25] That period of time is defence delay and is deducted from the overall delay. Accordingly, the net delay after deducting defence delay is 1031 days (1129 days total delay minus 98 days defence delay).

Step 3: Compare the Net Delay to the Presumptive Ceiling:

[26] At this stage, if the net delay exceeds the presumptive ceiling, which it does in this case, then the delay is presumptively unreasonable, and the Crown bears the burden of rebutting that presumption by demonstrating exceptional circumstances. In this case the net delay is 1031 days or 33.9 months.

Step 4: Consider Exceptional Circumstances:

[27] Exceptional circumstances that result in delay include discrete events and complexity. In Jordan at para. 69, exceptional circumstances are described in this way:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) 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 they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[28] The Court in Rex v. Zahor, states that the obligation on the Crown in the face of exceptional circumstances is as follows at para. 68:

The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C.(3d) 468, at para. 12.

[29] As it relates to the issue of complexity, at para. 105 of Zahor, Coroza J. defines complexity as follows:

A case may be particularly complex where it requires a great deal of trial time or preparation time “because of the nature of the evidence or the nature of the issues ”: Jordan, at para. 77 (emphasis in original). Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co- accused tried together, and an international dimension to the case are all examples of particular complexity: Jordan, at para. 77; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon).

[30] In this case, the Crown argues that the delay is reasonable because of the presence of exceptional circumstances, namely the COVID-19 pandemic and the complexity of the case.

[31] Before dealing with these issues, the Crown submitted that there was a separate discrete event that required a deduction from the overall period of delay. This was as a result of the illness of the Preliminary Inquiry judge resulting in an adjournment of the matter. The defence takes no issue with this position.

[32] The illness of one of the parties has long been recognized as a discrete exceptional circumstance that cannot be reasonably foreseen and lies outside of the control of the Crown. (see Jordan at para. 72)

[33] After the Preliminary Inquiry concluded on October 29, 2021, the matter was adjourned to November 12, 2021, for a decision on committal. On that date, the matter was adjourned due to the illness of the Preliminary Inquiry judge. The decision on committal was eventually scheduled to be given on November 23, 2021. I find that the period of time from November 12, 2021 to November 23, 2021 is a discrete exceptional circumstance due to the illness of the presiding judge and accordingly that period of time, 11 days will be deducted from the overall delay.

[34] The net delay after deducting 11 days due to the illness of the Preliminary Inquiry judge is 1020 days or 33.53 months.

COVID-19 Pandemic Delay

[35] Without a doubt, the worldwide COVID-19 Pandemic is a factor to be considered in assessing delay as an exceptional circumstance. How the court should factor into its analysis any COVID delay, is contentious.

[36] The charges in this case were laid approximately one month after the courts were shut down in March 2020 and proceeded, through the Ontario Court and the Superior Court, with the accused in custody, during a period of time when court operations were either disrupted, halted or significantly reduced.

[37] The Crown has provided the court with a local decision, the unreported decision of Pratt J. in Rex v. Etienne Robert released September 2, 2022. In that case, Pratt J. reviewed the local conditions in Windsor during the early part of the pandemic and deducted 211 days of delay for exceptional circumstances for the period of time between March 25, 2020, when a JPT was conducted to October 21, 2020, when a trial date was set. He indicated at para. 49 that due to the province’s response to the pandemic “dates could not be set” during that time.

[38] Counsel for the Crown submits that the backlog caused by the COVID-19 pandemic impacted the availability of dates for the Preliminary Inquiry to be conducted in the Ontario Court of Justice and a period of three months or 90 days should be deducted in this matter to account for that delay as a discrete exceptional circumstance.

[39] That is, during the period from May 9, 2020, when the accused were first before the court to November 5, 2020, when the Preliminary Inquiry dates were confirmed, there were periods of time when no cases were being scheduled whatsoever, which ultimately created a backlog once courts re-opened. The scheduling of “new” matters, that is, matters not previously scheduled for hearing took a back seat to matters previously scheduled and cancelled.

[40] The Crown further submits that due to the significant impact that the complete cancellation of jury trials had in the Superior Court of Justice and the “cascading” effect that had upon the scheduling of this and other matters for jury trial, six months should be deducted from the overall delay for that reason.

[41] The defence submits that they agree that COVID-19 is a factor, and it has resulted in a backlog of cases, however the Crown’s calculation that 90 days should be deducted due to the delay in setting this matter for Preliminary Inquiry, and a further six-month deduction from overall delay in the Superior Court of Justice, is simply a figure pulled out of the air and there is no evidentiary record to support making such a deduction.

[42] The defence argues that there is an absence of evidence to support what, if any deduction should be made to account for the delay caused by the COVID-19 pandemic and there is a lack of evidence that the Crown took sufficient steps to mitigate any delay. The defence submits that no time should be deducted from the assessment as an exceptional circumstance for the COVID-19 pandemic, because the period of time is impossible to quantify.

[43] The jurisprudence in this area is developing. In Regina v. Simmons, 2020 ONSC 7209, Nakatsuru J. said the following at paras. 70 and 72 in determining how to calculate delay attributable to COVID-19:

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.

[44] This passage has been cited with approval by a number of cases. In Rex v. Gonsalves, 2022 ONSC 6004 at paras. 20-21 Di Luca J. said:

The case law amply supports a finding that the COVID pandemic is a compelling example of a discrete event amounting to exceptional circumstances with the Jordan analysis, see inter alia R. v. Agpoon, 2022 ONSC 2762; R. v. Chac-Wai, 2022 ONSC 1269, at para. 33; R. v. Dumpfrey, 2021 ONSC 7758, at para. 38; R. v. Metatawabin, 2021 ONSC 7168, at para. 37; R. v. Schardt, 2021 ONSC 3143, at para. 69; R. v. Greenidge, 2021 ONCJ 468, at para. 23; R. v. Khan, 2021 ONCJ 195, at para. 6; R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Truong, 2020 ONCJ 613, at para. 71.

However, many cases also make the very valid point that delay caused by exceptional circumstances must nonetheless be analyzed with a view to the unique facts and the context of each case. There is no “standard deduction” for the COVID pandemic related courthouse shutdown.

[45] The Crown has provided the court with copies of the Notices issued in both levels of court regarding the shut down of the courts during the course of the COVID-19 pandemic.

[46] Beginning in March 2020, before these charges were laid, the COVID-19 pandemic was impacting cases that were already in the system. The Ontario Court of Justice announced on March 28, 2020, in the Notice entitled “COVID-19 Pandemic-Scheduling of Criminal Matters in the Ontario Court of Justice (Revised March 28, 2020)” that all criminal trials and Preliminary Inquiries scheduled between March 20, 2020 and May 29, 2020 were suspended.

[47] On May 4, 2020, the Ontario Court of Justice announced that no trials or Preliminary Inquiries would be conducted until at least July 6, 2020, at the earliest, but Judicial Pre-trials would continue to be conducted. On July 6, 2020, the Ontario Court of Justice announced that they would begin to schedule trials and Preliminary Inquiries with priority being given to continuations and matters previously scheduled for hearing when the courts shut down. The scheduling of “new” in custody matters, such as this case did not begin until July 21, 2020. [^6]

[48] The effect of the COVID-19 pandemic went further than an unprecedented shut down of courts across the province. There was a domino effect that resulted in a backlog of cases, all of which needed to be accommodated. This inevitably resulted in delay.

[49] In Rex v. Fisher, 2022 ONSC 5889 at para. 17, Monahan J. said:

This leads to a second, related observation, namely, that in determining the COVID-related delay in individual cases, the analysis must take into account these system-wide impacts. Many thousands of proceedings have been delayed on account of the pandemic, all of which must be rescheduled in an effort to have them completed within the Jordan presumptive guidelines. No single case is entitled to take priority over all others, without regard to the legitimate needs of other accused who are also facing delays in having their matters addressed. The comments of Doherty J.A. in R. v. Allen, although made in another context, over a quarter-century ago, are equally applicable in assessing the appropriate response to the COVID-19 pandemic:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[50] In the Superior Court of Justice, Chief Justice G. Morawetz announced that all jury trials would be suspended between March 17, 2020 and June 2, 2020. An update released on April 20, 2020, advised that jury trials would continue to be suspended until September 2020. In November 2020, jury trials were again suspended until January 4, 2021, which was eventually extended to July 5, 2021. Thereafter in December 2021, jury trials were again suspended until February 28, 2022. Over a period of approximately 23 months, jury trials in the Superior Court of Justice were only conducted during six months.

[51] When this Indictment was first addressed in the Assignment Court in the Superior Court of Justice on December 10, 2021, no jury trials were being conducted.

[52] A Judicial Pre-trial was held by Regional Senior Justice B. Thomas on January 18, 2022, at which time the defence indicated that delay was an issue. This matter was then in the Assignment Court on February 11, 2022. Mr. Craig Houle who was appearing for the Crown noted for the record that the Crown was prepared to conduct this trial before the “presumptive” Jordan date of November 2022 and noted that s. 11(b) was an issue.

[53] The Trial Coordinator offered dates in February 2023 for three weeks of Pre-trial Motions and a Jury Selection date of April 17, 2023. The Crown inquired as to why the matter could not be set before those dates. Pomerance J. who was presiding in the Assignment Court indicated the following [^7]:

I think Mr. Houle, it is because there are many, many other cases to be scheduled and that is the first opening in the court calendar.

[54] The court noted that there were a “backlog of cases” and that those dates were the “first dates the court could offer” and suggested that the Crown review some other cases and try to free updates to accommodate this matter earlier.

[55] Following that appearance in Assignment Court, the Crown emailed counsel to canvass earlier dates. The Crown indicated that it was prepared to “move cases” to prioritize this case and asked that counsel advise of earlier available dates. The Crown suggested that the defence provide their earliest dates.

[56] Mr. Hicks suggested that the Crown provide their dates first [^8] and in an email dated March 30, 2022, to the Crown and copied to counsel for the co-accused, said the following: “It is the task of the prosecution to bring this matter to trial before the Jordan deadline. It is the task of the defence not to frustrate this process.”

[57] With all due respect, the obligation on the defence goes beyond that. The Supreme Court of Canada in Jordan at para. 138 says:

For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently.

[58] Mr. Saini in his submissions said that this exchange between defence counsel and Crown, when the Crown was attempting to canvass earlier dates was not helpful to anyone in assessing this issue. I disagree. It appears that the Crown was making a genuine effort to attempt to determine whether earlier dates could be scheduled to conduct this matter prior to the presumptive Jordan date. The defence was not co-operating. It is unclear why the defence didn’t simply provide their earliest available dates when asked to do so.

[59] Subsequently, the Crown requested that the trial coordinator provide a date to address the matter on the record. The Crown was advised by Mr. Retar some time prior to April 25, 2022, that he did not have earlier dates available.

[60] Nevertheless, judicial pretrials were conducted on May 12, 2022 and on May 26, 2022 with Regional Senior Justice Thomas and earlier dates were arranged, the dates currently scheduled, which were confirmed in Assignment Court on June 10, 2022.

[61] Without a doubt, the fact that the Superior Court could not accommodate jury trials except for a period of 6 months over the course of close to two years resulted in a backlog of trials. Other cases which were unable to proceed due to the cancellation of jury trials before this Indictment was even in the Superior Court, needed to be rescheduled. No single case can take priority over all others.

[62] As Nakatsuru J. noted in Simmons the impact of COVID-19 is not limited to those periods of time when trials were not being conducted due to shutdowns or restrictions, the impact is much more far-reaching.

[63] Before the onset of the pandemic, the Superior Court maintained a “Jordan” list in the Assignment Court. Priority in scheduling was given to those matters, and they were dealt with at the beginning of the list, after in-custody matters were dealt with, but before the balance of the list was called.

[64] After the onset of the pandemic, and after the cancellation of any number of trials both with juries and judge alone, the court directed as many judicial resources as it could to deal with the backlog of cases. Trials were accommodated by Zoom or as hybrid proceedings. The effect of the pandemic is unprecedented and lead to changes in the way trials and other hearings were conducted, utilizing technology to conduct hearings and to file documents to respond to the issues raised by the health and safety measures that were implemented to address the pandemic.

[65] This matter was in the Superior Court for the first time on December 10, 2021. After the matter was brought forward and earlier dates assigned, the trial is scheduled to commence on February 13, 2023, approximately 14 months later.

[66] Some delay must be considered as a result of the exceptional circumstances involving the COVID-19 pandemic. I disagree with the position of the defence that because that delay is difficult to determine, it should not be considered. I am satisfied on the record provided that the Crown took reasonable steps to mitigate the delay caused by the pandemic. The Crown prioritized this case.

[67] The question now to be considered is how any COVID delay should be quantified. The Crown is suggesting a period of six months. The Crown arrives at this number by counting the period from March 17 to June 25, 2020, when all trials the Superior Court of Justice were cancelled due to the shut down of the courts and the backlog was created, a period of 100 days and adding three months from the other periods of time when no jury trials were being conducted.

[68] Certainly, the assessment of delay attributable to COVID-19 as a discrete circumstance varies depending on the facts of the case. In Rex v. Simmons, Nakatsuru J. says the following at para. 69:

First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 – 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) [^9] at paras. 29 – 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.

[69] In Rex v. Kirkopoulos, 2022 ONSC 6440, Goodman J. approached the matter in this way at paras. 71-73:

In R. v. Robinson, 2021 ONSC 2445 at para. 102, Akhtar J. recognized the difficulty in calculating the delay caused by the COVID-19 pandemic in addressing s. 11(b) of the Charter:

It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months is a more specific time period, it cannot be disputed that there was a "knock on" effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.

I agree with Ahktar J.’s overall assessment. The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances.

For the purpose of this application, I reiterate my holding on this particular issue as outlined in R. v. Hinterberger, 2022 ONSC 4860. Further, I adopt Nakatsuru J.’s detailed discussion and sage analysis on this very issue in the case of R. v. Simmons, 2020 ONSC 7209 at paras. 67 - 76.

[70] In this case, the net delay is 1020 days or 33.53 months. It would be reasonable to deduct from the overall delay some period of time both in the Ontario Court of Justice and in the Superior Court of Justice to account for the exceptional circumstances posed by the COVID-19 pandemic and the backlog of cases that developed as a result.

[71] In the Ontario Court of Justice, once the JPT was conducted on October 15, 2020, the earliest available dates for five weeks of Preliminary Inquiry were approximately nine months later in June 2021. While not specifically noted in the record, some delay was likely caused by the need to reschedule matters that had previously been scheduled for trial or Preliminary Inquiry and had been cancelled.

[72] The Notice issued on July 6, 2020, by the Ontario Court of Justice indicated that while trials/Preliminary Inquiries could be set as of that date, priority would be given to matters being set for continuation and those that were previously scheduled for hearing but could not proceed due to the shut down of the courts. Those dates began to be scheduled commencing July 21, 2020. While this case was not ready to schedule a Preliminary Inquiry as of that date, there is no doubt that there was a “cascading” effect in that other cases had to be scheduled which were already in the system resulting in availability of dates for this matter being pushed back.

[73] Likewise, once this matter was in the Superior Court of Justice, the earliest dates initially offered were in April 2023, some 16 months after the matter was first in the Superior Court of Justice. Through the initiative of the Crown and the efforts of all parties including the defence and the court earlier dates were set.

[74] In this case, it would be reasonable to deduct at least the portion of the delay that exceeds the presumptive ceiling, that is approximately 107 days or 3.53 months as attributable to the backlog resulting from the need to reschedule numerous cases that could not be heard during the period of time that the courts were closed, or jury trials were not being conducted due to the COVID-19 pandemic. This would leave a net delay of 913 days or 30 months.

Complexity

[75] The Crown has argued that in addition to any period of delay that should be deducted due to the exceptional circumstance posed by the COVID-19 pandemic, that this matter should be considered a particularly complex case which would make the delay beyond the presumptive ceiling reasonable.

[76] The defence argues that this was a “typical” homicide case that was not particularly complex to warrant any consideration in this category. Generally speaking, homicide trials are not in and of themselves considered complex.

[77] Complexity involves a qualitative analysis of the overall nature of the case to determine whether any period of time above the presumptive ceiling is justified, rather than deductions of specific periods of time.

[78] As noted by Coroza J. in Zahor at para. 105, complex cases may require a great deal of trial time or preparation because of “the nature of the evidence or the nature of the issues”, voluminous disclosure, a large number of witnesses, multiple charges, several pretrial applications, numerous significant issues in dispute, or multiple co-accused. The court must also consider whether the Crown followed a concrete plan to minimize the delay caused by the complexities.

[79] The Crown argues that they sought to narrow the issues prior to the Preliminary Inquiry and sought admissions from the applicants for the purpose of shortening the trial, as is evidenced by their email communications with counsel. On April 26, 2022, the Crown sent an email to counsel seeking their position on issues of continuity of items that ranged from a blood sample from the deceased to guest registration documentation from Motel 6, to items seized during the execution of a search warrant. The reply to this email was not provided in the record.

[80] The Crown points to a number of factors that it suggests makes this a particularly complex matter:

• There are three co-accused;
• There were initially 12 counts on the Indictment (although the Crown has withdrawn all but the two most serious charges now);
• the Preliminary Inquiry spanned five weeks and 19 witnesses were called;
• the issue of committal was seriously contested at the Preliminary Inquiry;
• three weeks of Pretrial Motions were scheduled involving the voluntariness of statements/ s. 10(b) Charter application, this s. 11(b) application, a s. 8 application, a challenge for cause and an argument relating to the admissibility of a surveillance video;
• over 100 witnesses have been subpoenaed to testify;
• the main Crown witness, Jacob Reaume provided multiple statements and his evidence will take many days to complete (6 days were required at the Preliminary Inquiry)
• there are over 10,000 pages of disclosure;
• surveillance video from 14 separate locations;
• 12 reports from various experts from the Centre of Forensic Science;
• 26 search warrants were executed;
• data from six separate Facebook accounts;
• extraction data from a number of cell phones
• the trial is anticipated to take three months to complete.

[81] The Crown submits that even the defence acknowledged that the matter was complex during an appearance in Case Management Court on August 5, 2020, where Mr. Saini said that he required an adjournment for two weeks to review disclosure and “[I] expect there’s further disclosure forthcoming, given the complexity and seriousness of the charges”.

[82] The Crown argues that these circumstances take the matter beyond an “ordinary murder case” and suggest that this matter is particularly complex.

[83] The defence argues that this matter was not particularly complex and in any event the Crown has not established that it had a “plan” to deal with the complexity other than asking the defence to make admissions and narrow the issues. That is not a Crown plan, any admissions should work in favour of the defence rather than the Crown.

[84] The defence argues that the slow pace of disclosure should be factored into a consideration of whether the Crown actually had a plan to deal with complexity. In this circumstance, the defence did not wait to schedule dates until all disclosure was received in order to move the matter forward. In fact, disclosure continued to be received even after the Preliminary Inquiry had been conducted.

[85] The Crown argues that there is no causal connection between the pace of providing disclosure and any delay in setting dates.

[86] One of the factors contributing to the length of Preliminary Inquiry, was that one of the key witnesses in this trial, Mr. Reaume, provided an additional statement to the Crown relating to the issue of identity on September 6, 2020, which significantly changed the nature of the case. Ultimately, Mr. Reaume testified for six days during the Preliminary Inquiry. The Crown also notes that the defence elected to call evidence at the Preliminary Inquiry which required seven days of court time.

[87] Although it appears there were some delays in providing disclosure, this too must be considered in the context of the pandemic. The “stay at home” orders and shutdowns had an impact on other facets of the criminal justice outside of the courtroom. Many people worked from home. There is no evidence that the way in which disclosure was provided delayed the setting of court dates.

[88] In my view this case, given all of the circumstances is of moderate complexity. Taking into account, and deducting the delay caused by exceptional circumstances, namely delay caused as a result of the backlog of cases caused by the COVID-19 pandemic and the complexity of the case, this case falls below the presumptive ceiling.

Step 5: Consider Transitional Exceptional Circumstances:

[89] This factor does not apply to this case, and I need not take it into account.

Below the Presumptive Ceiling

[90] Delay that falls below the presumptive ceiling may be unreasonable if the defence can demonstrate that it made a sustained effort to expedite the proceedings, and the case took markedly longer than it should have (see Jordan at para. 82).

[91] The defence argues that it made such efforts, namely that the defence was prepared to expedite the setting of Preliminary Inquiry dates even when they did not have full disclosure, that they proceeded to conduct the Preliminary Inquiry even after receiving important disclosure at the last minute (the statement of Mr. Reaume), that despite the fact that there was a change in counsel for Mr. Vilneus, there was no delay in setting dates as a result, that they notified the court once the matter was committed to trial in the Superior Court that s. 11(b) was an issue and that they cooperated in arranging earlier trial dates.

[92] Jordan at para. 85 states the test as follows:

To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

[93] Did the defence take “meaningful and sustained steps” to be tried quicker? If the defence had not insisted on having consecutive days for the Preliminary Inquiry rather than the earliest available dates, the delay of 98 days in scheduling the Preliminary Inquiry would have been avoided.

[94] Furthermore, it appears that the Crown took the initiative in canvassing earlier dates for scheduling the trial. Defence was reluctant to commit to earlier dates until the matter was brought back before a judge which resulted in the earlier dates being set. I do not see this as the defence attempting to set the earliest available dates.

[95] I am also not satisfied that this matter took “markedly” longer than it should have, given the nature of the charges and the relative complexity of this matter. In my view, the defence has not shown that they took meaningful and sustained steps to attempt to set the earliest possible hearing dates and move this matter forward.

Conclusion

[96] Accordingly, I find that the net delay falls below the presumptive ceiling, and the defence has not met its onus to show that the delay was unreasonable. As a result, the application is dismissed.

Original Signed by “Justice M.V. Carroccia” Maria V. Carroccia Justice Released: January 19, 2023

Footnotes

[^1]: Days ÷30.417= months as per R. v. Shaikh 2019 ONCA 895 [^2]: Application Record of the Applicants at Tab 26 [^3]: Application Record of the Applicants at Tab 35 [^4]: Application Record of the Applicants at Tab 38 [^5]: Regina v. Hanan 2022 ONCA 229 at para. 54 [^6]: Crown s. 11(b) Materials at Schedule C [^7]: Application Record of the Applicants at Tab 83 [^8]: Tab 85 Crown’s s. 11(b) Application Record/Factum [^9]: R. v. Folster, 2020 MBPC 40