R. v. Malhi, 2023 ONSC 7

COURT FILE NO.: CR-21-70000182-0000

DATE: 20230104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RICHARD WHITE, ASEEM MALHI

Defendants

Peter Scrutton and Rebecca De Filippis, for the Crown

Alan D. Gold and Ellen C. Williams, for Aseem Malhi

Joanne Mulcahy, for Richard White

Heard: December 20, 2022

JUSTICE S. NAKATSURU

1Richard White and Aseem Malhi are two police officers who are charged with theft, obstruct justice, and perjury. The allegations are they stole $50,000 from Hoa Nguyen during his arrest and the officers then attempted to cover up their theft by deliberately misrepresenting their involvement in Mr. Nguyen’s arrest in their memo books and their sworn testimony at Mr. Nguyen’s preliminary inquiry.

2Mr. White and Mr. Malhi’s jury trial is scheduled for four weeks starting February 13, 2023. Both officers apply for a stay of proceedings arguing their right to a trial within a reasonable time guaranteed by s. 11(b) of the Charter has been violated.

3The trial date was set in the Superior Court of Justice in the midst of the COVID-19 pandemic. Resolution of this application depends upon how the COVID-19 exceptional circumstance should be calculated. The defence position is that no such exceptional circumstance has been proven by the Crown. The Crown position, if accepted, would lead to the dismissal of this s. 11(b) application.

4For the following reasons, I dismiss the application.

5The s.11(b) analysis begins with the determination of the total time from the date the information is sworn to the anticipated end of the trial. This is 1,253 days or 41 months and 6 days. From this, defence delay must be subtracted.

A. DEFENCE DELAY

6The Crown submits that there are two periods of defence delay: (1) a period of 21 days for Mr. White when his counsel was not available for the first date offered for the preliminary inquiry; and (2) a period of 81 days for both applicants when the judicial pre-trial in the Superior Court of Justice was delayed by the defence.

1. November 23, 2020 to December 14, 2020 (21 days): Mr. White

7In setting the date for the preliminary inquiry, the earliest date offered by the Ontario Court of Justice for the preliminary inquiry was November 23, 2020. The Crown and counsel for Mr. Malhi were available. Counsel for Mr. White was not. Looking at the circumstances including the nature of the case, the time required for the preliminary inquiry, and a reasonable assessment of the availability of defence counsel, I find that this period is defence delay by Mr. White and should therefore be deducted: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 66; R. v. Mallozzi, 2018 ONCA 312 at para. 3; R. v. Albinowski, 2018 ONCA 1084 at paras. 28-33.

8To be clear, this applies only to Mr. White and not Mr. Malhi.

2. March 15, 2021 to June 4, 2021 (81 days): Both Applicants

9On the first appearance in the Superior Court of Justice on March 15, 2021, counsel for Mr. White advised that counsel was not available for a judicial pre-trial until the first week of June, 2021, due to other court commitments. Mr. White explicitly waived s. 11(b) for this period after the Crown objected to such a lengthy delay in the absence of a waiver. I find that this period must be deducted for Mr. White. This is not disputed.

10Mr. Malhi, however, submits that this should not count as his defence delay as he did not waive. I disagree. I find that on March 15, 2021, Mr. Malhi, through counsel (not Mr. Gold or Mrs. Williams), implicitly waived s. 11(b) for this period.

11Waiver by one accused does not automatically mean waiver by a co-accused: R. v. Gopie, 2017 ONCA 728 at paras. 128-136. However, the circumstances here justify a finding of an implicit waiver. When counsel for Mr. White waived, the presiding judge inquired of the Crown about its position given the waiver. The Crown replied that there was Mr. Malhi to consider. Counsel for Mr. Malhi then responded that while she did not have instructions to waive, she did not “think that the Crown needs to be concerned about the period of delay.” Counsel for Mr. White confirmed that it was clear that the delay was on them.

12In my opinion, counsel for Mr. Malhi by her comments and actions, made a choice not to contest or object to her co-counsel’s request for a lengthier delay in having the judicial pre-trial. It cannot be said she merely acquiesced to the inevitable. Here, both the judge and the Crown were concerned about Mr. White’s counsel’s request and the attendant delay. Section 11(b) was expressly being discussed by the parties and the court. It must be taken that all were aware of the implications of agreeing to the future date in June for the judicial pre-trial. Given that this was just a judicial pre-trial and not a lengthier or more complicated court matter being scheduled, I am confident that any push back from Mr. Malhi’s counsel, would have led to an earlier date especially given the Crown’s stated availability for early morning or lunch hour judicial pre-trials. By saying what she did, and then not objecting to her co-counsel’s characterization of the defence wearing the delay, she essentially gave the green light for the judicial pre-trial date being set in the first week of June. This constitutes implicit waiver of s. 11(b): R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120 at para. 38.

13Mr. Malhi further submitted that the waiver should be invalidated since when it was given, he was unaware of important Crown disclosure. Mr. Malhi argues the fact that the Crown was still seeking whether Mr. Nguyen would divulge the name of his drug supplier, meant that his implicit waiver on March 15 was uninformed: R. v. Ahmad, 2022 ONSC 2321 at paras. 50-57. The name of the drug supplier is relevant since the defence theory is that the missing money alleged to be stolen by the applicants was paid to this drug supplier for drugs.

14This submission is without merit. First, at the time of the waiver, the defence was well aware that Mr. Nguyen would not provide the name of his supplier. This was made abundantly clear from Mr. Nguyen’s repeated refusal to answer this question at the preliminary inquiry. Moreover, there was nothing to disclose. The Crown did not have possession of this information. It was only subsequent to March 15, after defence counsel made the request, did the Crown agree to contact Mr. Nguyen’s counsel to see if he would supply this information. Thus, the June 4judicial pre-trial was further adjourned on consent to June 29, 2021. However, these post-March 15 events do not vitiate the waivers given on March 15.

15Finally, any other disclosure received later by the defence such as enhanced surveillance video did not have any effect on the validity of the waiver.

B. NET DELAY

16Deducting defence delay, for Mr. White the net delay is 1,151 days. For Mr. Malhi, the net delay is 1,172 days. For both men, the net delay is above the presumptive ceiling of 30 months. The Crown seeks to establish two discrete events as exceptional circumstances.

C. EXCEPTIONAL CIRCUMSTANCES

1. Mistaken Estimate for the Completion of the Preliminary Inquiry

17The first discrete event is the inability of the preliminary inquiry to complete in the time allotted to it. The preliminary inquiry was scheduled for five days from December 14 to 18, 2020. It took six days to complete, continuing January 13 and 14, 2021. A minor wrinkle is that the preliminary inquiry judge was not available one day during the five days originally scheduled. Thus, the preliminary inquiry should have finished on January 13. I find that the parties made a good faith effort with the assistance of a judicial pre-trial judge in estimating the preliminary inquiry. The parties made reasonable efforts to complete the inquiry in the initial block of time. The Crown and the court reasonably mitigated the delay caused by the inaccurate estimate of time by accommodating further dates within a month. Thus, this delay was unavoidable and amounts to an exceptional circumstance: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 611 at para. 73; R. v. Majeed, 2017 ONSC 3554 at paras. 23-27; affirmed 2019 ONCA 422 at para. 9.

18Thus, 26 days should be deducted as a discrete exceptional event. It was neither reasonably foreseeable nor reasonably avoidable.

2. The COVID-19 Pandemic

19This is the key exceptional circumstance the Crown relies upon. The applicants argue that the Crown has failed to prove that the pandemic had anything to do with the delay in the Superior Court of Justice. In this case, the trial date was set on July 6, 2021, over a year since the World Health Organization declared COVID-19 to be a global pandemic on March 11, 2020. The applicants point to the lack of any evidence led by the Crown in establishing this exceptional circumstance. They further point to the judicial pre-trial form in the Superior Court of Justice that does not indicate any reliance by the Crown on this exceptional circumstance.

20Since I decided the case of R. v. Simmons, 2020 ONSC 7209, much has happened in the life of the pandemic. Much has also happened in the courts and how we do things. Without reservation, I can say that since then, though the path has not been linear, things have improved.

21But what has not changed is that COVID-19 is still with us. The backlog in cases persists. And COVID-19 remains an exceptional circumstance for the purpose of a s. 11(b) analysis. Fundamentally, I disagree with the defence position that the Crown needs to lead evidence that the pandemic has caused a backlog of cases: Simmons, at para. 70; R. v. Agpoon, 2022 ONSC 2762 at para. 51; R. v. Shen, 2022 ONSC 3274 at paras. 28, 41-49; R. v. Kirkopoulos, 2022 ONSC 6440 at paras. 52-53; R. v. Hyacinthe, 2022 ONSC 1444 at para. 17; R. v. Sharma, 2022 ONSC 5192 at para. 11; R. v. Titus, 2022 ONSC 3484 at para. 17; R. v. Cann, 2022 ONSC 2699 at para. 3; R. v Hamblett, 2022 ONSC 5726 at paras. 46-49.

22This is not to say that the Crown can merely waive the banner of COVID-19 to establish this exceptional circumstance. The pandemic must have caused or contributed to the delay. There must be case-specific reasons to conclude this: Agpoon, at paras. 47-51; R. v. Gonsalves, 2022 ONSC 6004 at paras. 23-24; Kirkopoulos at paras. 60-79. If the pandemic is merely the backdrop for a delay caused by something else, this exceptional circumstance cannot be relied upon; for example, if the delay was caused by Crown failure to provide timely disclosure: Gonsalves at paras. 30-37; R. v. Delaney, 2021 ONCJ 467 at para. 56.

23In assessing whether the requisite link between the delay and the pandemic backlog has been shown, the following factors may be useful to consider.

24First, the courthouse in which the trial is being conducted. Not every jurisdiction will have the same backlog of cases caused by the pandemic. The judge hearing the s. 11(b) will be uniquely positioned and knowledgeable about the state of affairs in the jurisdiction of the courthouse.

25Second, whether the trial is by jury or judge alone. Jury trials have been directly affected by the suspensions of jury trials ordered by the Chief Justice of the Superior Court of Justice. Moreover, even when jury trials were re-commenced, the added precautions and more complex logistics of a jury trial when there were health mandates and guidelines in place, meant that the same number of jury trials as in pre-pandemic times could not take place. For example, when jury trials re-commenced after the first suspension of jury trials, juries were picked off-site at the Toronto Convention Center and juries deliberated in other courtrooms rather than their regular jury room. The same reasoning applies when it comes to judge alone trials that could not proceed virtually by way of Zoom during any specific period of the pandemic. For all trials, there were only a limited number of courtrooms functioning during transitional periods.

26Third, the length of the trial. It is common sense that a short trial is easier to accommodate than a long trial: R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39 at para. 95. The longer the trial, the more likely it will be affected by the backlog.

27Fourth, the timing of the setting of the trial date. Obviously, if much of the delay preceded the pandemic or its effects on the court system, the link will be tenuous. In addition, the more temporally distant the effects of the pandemic on the justice system are when a trial date is scheduled, the less likely the backlog will be the reason for any delay. Let me hasten to add, at this present moment, we are not yet there. The ripple effects of the pandemic are still being acutely felt. It still rocks the boat that is the administration of justice.

28Fifth, the length of time before the court can accommodate the trial. While I appreciate that this factor can be criticized as “circular reasoning”, it just seems obvious that in the absence of other reasons for the delay, a lengthier than normal period of time required before a trial can be heard, means it is more likely the scheduling of the trial has been detrimentally affected by the backlog created by the pandemic.

29In this case, I am satisfied that the COVID-19 exceptional circumstance applies. There are no other reasons why the trial date could not be set earlier than February 13, 2023. This is a four-week jury trial. The trial date was selected in July of 2021, after the Superior Court of Justice, Toronto Region, suffered through two periods of jury trial suspensions of 6 months and 7 months. These were times when no jury trials were being held and new cases where still coming into the system: Shen at para. 42. On July 6, 2021, at the set date appearance, the earliest trial date was some 19 months and 7 days away in the future. This is significantly longer than in pre-pandemic times. I find that in these circumstances, the pandemic backlog caused or contributed to this delay. Of that, I have no doubt.

30The applicants submitted that the Crown cannot rely on COVID-19 as an exceptional circumstance since at the judicial pre-trial, the Crown’s Form 17 took the position there were no exceptional circumstances. In addition, the judicial pre-trial judge made no note of any exceptional circumstance. The Crown responds that there was no exceptional circumstance “to date” as the preliminary inquiry dates were scheduled prior to the pandemic and it was not until the trial dates were set after the judicial pre-trial, that the pandemic’s impact was felt on the case.

31This issue can easily be disposed of. The positions of the parties, even concessions, especially at a judicial pre-trial, are not determinative on a s. 11(b) application. I am not bound by them. I must decide it.

32The next issue is how to calculate the length of time that should be attributed to this exceptional circumstance. This depends upon the question of how much of this approximately 19 months of delay should be considered as falling under the COVID-19 exceptional circumstance. The second question is whether any period of delay under this exceptional circumstance should be subtracted as the Crown and the judicial system could have reasonably mitigated it.

33The first question is contentious. That also has not changed since Simmons. Simmons was analytically simpler since in that case a jury trial was adjourned due to the pandemic. In that situation, the entire period of delay caused by the adjournment fell under the discrete event exceptional circumstance. Here, there was nothing akin to the adjournment of a trial. The trial date was simply set amid the pandemic. Of course, trials cannot be scheduled to begin immediately after the first appearance. Even in the best of times, there will always be some “institutional” delay in getting a case to trial. This must be accounted for. Thus, not all of the 19-month delay to trial should be attributed to the pandemic backlog.

34The Crown concedes the quantification is difficult. The Crown points to two approaches taken in the case law: (1) if the court is satisfied that the delay in the case is reasonable in light of the scheduling issues caused by the backlog, any time over the presumptive ceiling should be deducted¹; or (2) if a more precise quantification is required, a fair and reasonable amount should be deducted to account for the effects of the pandemic.²

35In my view, the second approach is the better one. While undoubtedly appropriate in the right case, the first approach has a rather self-serving and arbitrary feel to it. Further, the second approach has the advantage of focusing the analysis on the facts of a particular case and is more consistent with the concept of the discrete event exceptional circumstance which is one that should be quantifiable. Noteworthy as well, this approach leaves open the possibility that even with a due deduction for the exceptional circumstance, the case can yet be stayed as being beyond the presumptive ceiling: Kirkopoulos at para. 80. While the quantification of time will by necessity involve what would also seem to be an arbitrary number of months, this type of methodology in a s. 11(b) analysis has been affirmed by the Supreme Court of Canada in R. v. K.J.M., albeit in the context of calculating the amount of defence delay. In K.J.M., at para. 96, Moldaver J. estimated that two to three months of a trial delay of five months was caused by the defendant’s failure to attend court on time. This, though the trial would have had to continue another day in any event given it could not otherwise be completed due to its length. While acknowledging the proportioning of the defence delay was difficult to quantify with precision, Moldaver J. held that given that it would have been easier to find a shorter period of court time earlier for the continuation, the calculation of two to three months as defence delay was “both fair and reasonable.”

36In my opinion, in assessing the amount of time to be attributed to the backlog, the factors mentioned above in the determination of whether the COVID-19 backlog caused or contributed to the delay, remain equally useful. The applicants’ trial is a lengthy jury trial that needed to be scheduled relatively soon after the Toronto courthouse had suffered numerous impacts from the pandemic including lengthy suspensions of jury trials. Toronto is an extremely busy region where there are a significant number of serious and lengthy criminal trials that need to be accommodated. It has a significant backlog problem created by the pandemic.³ For good reason, in custody matters receive priority. The applicants are out of custody. After defence delay and the exceptional circumstance regarding the delay in the preliminary inquiry is subtracted, this case has spent just under 15 months, in the Ontario Court of Justice during the intake phase and for the preliminary inquiry (the dates for which were scheduled pre-pandemic.) After subtracting defence delay, in the Superior Court of Justice, it will take over 21 months, to have the trial completed. Of that, it has taken 19 months from the set date appearance to the commencement of the trial date. Thus, this case has taken more time getting to trial after committal then it has taken during the intake and preliminary part of the criminal process. Assessing these factors, I find that the backlog created by the pandemic has had a significant impact in delaying this trial in the Superior Court of Justice. After considering all the circumstances, a deduction of 10 months for this exceptional circumstance is both fair and reasonable.

37Dealing with the second question, any period of delay caused by the exceptional circumstance that the Crown or the court could have reasonably mitigated should generally not be deducted. I conclude that none of this delay could have been reasonably mitigated for the following reasons.

38First, the judicial system and the Crown has actively responded to the pandemic and the backlog created by it. Given its exceptional nature, the length of COVID-19’s impact on the criminal justice system, and the widespread ramifications of the backlog created by the pandemic, while reasonable mitigation like triage is still required, little wriggle room has been left for mitigation: Titus at para. 15; R. v. Cann, 2022 ONSC 2699 at paras. 22, 45; R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] O.J. No. 3175 (C.A.) at para. 27.

39Second, the failure of the applicants to follow the Criminal Proceedings Rules and the province-wide Provincial Practice Direction/Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings issued by the Chief Justice regarding s. 11(b) applications, has limited the scope of what the Crown and system could do to mitigate the delay. When these December pre-trial application dates were set, they were only for an abuse of process application. It was on October 26, 2022, that the Crown first learned that the applicants intended to bring a s. 11(b) application. On the Form 17 filed in advance of the judicial pre-trial of March 15, 2021, the applicants advised that their position on a s. 11(b) application would “depend on the trial date.” When the trial dates were set a few weeks later, there was silence on the part of the applicants. A silence that continued for over 16 months until the trial date was nearly upon us. In addition, the Practice Direction required that the s. 11(b) application be heard 60 days before the first scheduled day of the pre-trial applications. The applicants made this s. 11(b) application returnable on the first date previously scheduled for the abuse application, December 19, 2022.

40Goldstein J. in Shen explained in detail the mandatory nature of the Rules and the Practice Direction and how they apply to a s. 11(b) application. While there is always a discretion to permit an application that is not in compliance to proceed, non-compliance in Shen resulted in dismissal of the application. Though the Crown did not object to the applicants’ s. 11(b) application being heard, I adopt Goldstein J.’s reasons on these issues.

41I wish to comment further about section 20 of the Practice Direction. It states:

20. Where the defence (e.g. an accused person or their counsel) intends to bring a s. 11(b) application but did not indicate this at the pre-trial conference, the defence must provide written notice of this change in position to the Crown, any other accused and the Superior Court trial coordinator, and arrange for a further pre-trial conference as soon as practicable as required under rule 28.04(11).

42In my opinion, requiring this additional judicial pre-trial with notice to the Crown as soon as practicable, provides an opportunity for the Crown and the court to reasonably mitigate any delay caused by the setting of the trial date. At the initial judicial pre-trial, since the trial date has not yet been set, it will be unclear whether delay will be a real issue in the case. Once the trial date is set, then it will be apparent whether a s. 11(b) violation will be alleged. Hence, one important reason behind section 20 is to get an early chance to change the course of the proceedings and to perhaps secure a date that will respect this constitutional right.⁴

43It does not really need to be said that the Crown bears the constitutional burden to bring the defendant to court in a timely manner. At the same time, the defendant has a duty to act proactively and must raise any issue of delay reasonably and expeditiously; failing to do so is contrary to the proper administration of justice: R. v. J.F., 2022 SCC 17 at paras. 34, 36. The said Practice Direction underscores that duty.

44This duty is especially significant as the justice system works through the pandemic backlog. Given our current context where so many trials have been detrimentally affected by the backlog, failing to raise in a timely fashion any problematic delay in a specific case, can only signal to the Crown and the court that the defendant views the COVID-19 pandemic to be an exceptional circumstance justifying the delay that has occurred: Shen at para. 15; R. v. Kromah, 2022 ONSC 4031 at paras. 29-33; R. v. Yizhak, 2022 ONCJ 476 at para. 2. When such conduct by the defendant arises in a case, this should shape the lens through which any efforts made by the Crown and the court to reasonably mitigate the delay should be viewed.

45In the case at bar, until October of this year, the only notice given by the applicants was a brief notation by the defence on the Form 17 that s. 11(b) might be an issue depending on the date set. This does not give any real notice. Section 11(b) is always a potential issue depending on the date set. It is once the date is set that meaningful notice can and should be given. Thus, it was crucial that the Practice Direction was followed. It was not. In failing to do so, the applicants failed to respect the purpose of s. 11(b) which is to expedite trials, “not to avoid trials on the merits”: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at para. 62.

46In light of these circumstances, I find that the Crown and the court made reasonable efforts to mitigate the delay.

D. CONCLUSION

After accounting for defence delay and the exceptional circumstances, the remaining delay for Mr. White is 26 months and 28 days. The remaining delay for Mr. Malhi is 27 months and 18 days. There is no violation of s. 11(b).

47The application is dismissed.

Footnotes

1. 1R. v. Titus, 2022 ONSC 3484 at para. 19; R. v. Thompson, 2022 ONSC 4284 at paras. 46-50; R. v. Meir, 2022 ONCJ 100 at para. 50.
2. 2R. v. Zappone, 2021 ONCJ 332 at paras. 21, 24-26; Sharma at paras. 21-22; Kirkopoulos at para. 80.
3. 3In Shen, Goldstein J. details the effects the pandemic has had on the backlog in Toronto. As an administrative judge who is responsible for the scheduling of criminal trials, he has great insight into the difficulties posed by the pandemic backlog in this region. Put another way, this decision should be given considerable weight.
4. 4For instance, the Superior Court of Justice in the Toronto Region has instituted a special Jordan court as a part of the solution.