Court File and Parties

Court File No.: CJ 101499 Date: 2023-01-06 Superior Court of Justice - Ontario

Re: R. v. Jayden Brown

Before: Justice D.A. Broad

Counsel: A. Sethi, for the Respondent/Crown T. Brodie, for the Applicant/Accused

Heard: October 24, 2022

Endorsement

[1] The applicant has brought an application for a stay of proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms by reason of a violation of his right under s. 11(b) of the Charter to be tried within a reasonable time.

[2] The applicant is charged with the following offences, amongst others, arising out of a mid-day robbery at a Scotiabank branch in Cambridge, Ontario:

(a) robbery with a firearm – s. 344(1)(a) of the Criminal Code of Canada;

(b) being an occupant of a motor vehicle knowing there was a prohibited weapon – s. 94(1)(b) of the Criminal Code of Canada;

(c) unauthorized possession of a firearm – s. 91(1) of the Criminal Code of Canada.

[3] There is no dispute that the total delay from the laying of the Information on September 16, 2020 until the date that the applicant’s trial is scheduled to conclude, being May 5, 2023, is 31 months and 20 days (950 days) exceeding the 30-month presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 in respect of matters in the Superior Court of Justice by one month and 20 days.

[4] Although in its Factum the Crown referenced four periods of delay that should be attributed to the defence totalling 143 days, this position was not pressed by Crown counsel in submissions.

[5] The question to be determined by the court is therefore whether the Crown has rebutted the presumption established in Jordan by establishing the presence of an exceptional circumstance being the onset of the COVID-19 pandemic.

[6] At the conclusion of submissions, I dismissed the application, with brief oral reasons, with fuller written reasons to follow. What follows are those written reasons.

Applicable legal principles

[7] The legal principles governing an application of this nature where succinctly summarized by Goodman, J. in the recent case of R. v. Hinterberger, 2022 ONSC 4860 at paras. 14-19 as follows (citations omitted):

In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next stage is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.

If the net delay then exceeds the ceilings outlined in Jordan (18 months for cases in the Provincial Court and 30 months for Superior Court cases), it is presumptively unreasonable.

Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two components: "(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.

If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable. If the Crown is not able to rebut the presumption, the charges against the accused will be stayed.

On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. Stays for cases below the ceiling are rare.

Analysis

[8] As stated previously the Crown does not assert that any part of the total delay of 31 months and 20 days is to be subtracted by reason that it was delay that was waived by the defence or caused solely by defence conduct.

[9] As noted above, the total delay, which is also the net delay for the purpose of the analysis, exceeds the ceiling outlined in Jordan by 1 month and 20 days.

[10] The onus is therefore on the Crown to demonstrate that the delay is nevertheless reasonable taking into account any exceptional circumstances. The Crown does not assert that the case at bar falls into the second category of exceptional circumstances, namely particularly complex cases. Rather it submits that the delay was caused by a discrete event being the COVID-19 pandemic, which was reasonably unforeseen and reasonably unavoidable and the delays emanating from the circumstances caused by the pandemic, once they arose, could not have been reasonably remedied by Crown counsel.

[11] The applicant submits that there are no discrete events or exceptional circumstances that justify the delay in the case at bar, but rather it was a case of institutional delay, specifically a lack of judicial resources, which pushed the trial outside the presumptive ceiling established by Jordan.

[12] The Crown acknowledges that the applicant’s hearings and trial were not cancelled due to COVID-19. However, it takes the position that the pandemic nevertheless contributed to the delay and, but for the residual effects of the pandemic, the matter would have proceeded more expeditiously by offering earlier dates and ultimately bringing it below the presumptive ceiling.

[13] As observed by Laliberte, J. in R. v. Sandu, 2022 ONSC 3910 at para. 38 the advent of the COVID-19 pandemic has been accepted in the jurisprudence as unquestionably an exceptional circumstance, specifically a discrete event as contemplated by the Supreme Court of Canada in Jordan.

[14] Moreover, the weight of the jurisprudence has recognized the widespread and persistent impact of the pandemic on the criminal justice system and, as noted by Goodman, J. in Hinterberger at para. 64, “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.”

[15] In R. v. Robinson, 2021 ONSC 2445 Akhtar, J. characterized the impact resulting from the “knock on” effect of the pandemic as follows at para. 102:

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 (the delay from 30 March 2020 to 23 June 2020) 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.

[16] Nakatsuru, J. expressed it as follows in the following oft-cited passage at para. 70 of R. v. Simmons, 2020 ONSC 7209:

[T]he 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.

[17] The applicant relies upon the case of R. v. Greenidge, 2021 ONCJ 57 in support of its position that the Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic and that for the Crown to rely on the pandemic as an exceptional circumstance, it must prove on a balance of probabilities:

(a) that but for the pandemic, earlier dates would not have been obtained for the case to have been tried and completed within the presumptive ceiling set by Jordan; or

(b) at least the Crown would have been able to secure earlier dates from the trial coordinator’s office to offer to the defence which would have permitted the trial to be completed within the ceiling.

(see Greenidge at paras. 26 and 30).

[18] Greenidge was distinguished by Goodman, J. in Hinterberger on the basis that trial dates were set in Greenidge before the onset of the pandemic and would have exceeded the presumptive ceiling in any event. He stated as follows at paras. 55 and 56:

In R. v. Greenridge (sic), 2021 ONCJ 57, Monahan J. declined to deduct COVID-19 as a discrete event after finding it had no "direct link" to the delay: at paras. 27-28. However, when trial dates were set in December 2019, the earliest available dates meant the trial would be completed in February 2021 and exceeded the OCJ's 18-month presumptive ceiling.

Since trial dates were scheduled pre-pandemic, the suspension of court operations and ensuing backlog did not prevent the Crown from securing earlier hearing dates. With or without COVID-19, Greenridge (sic) would have exceeded the presumptive ceiling. In the present case, the OCJ's pandemic backlog directly impeded the parties' ability to schedule hearing and trial dates and move the matter forward. There is a causal link between the pandemic and the present case which was not found in Greenridge.

[19] In the case of R. v. G.S., 2022 ONCJ 427 Wright J. found the defence argument, in reliance on Greenidge, that COVID-19 as an exceptional circumstance should be limited to those cases where there is a clear connection from a specific COVID-19 impact to the delay in a case to be “too narrow a reading of Jordan” (see para. 30). At para. 34 Wright, J. observed:

The Applicant's submission would have COVID-19 treated like a single event impacting a single discrete case or day of Court. It is not a single closure of a Court or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts. No case is an island — the Applicant would have his case assessed as though no other cases existed.

[20] In the case at bar the preliminary hearing for 6 days was set on June 14, 2021 for the first available dates commencing March 10, 2022 (being a 9-month delay). By comparison the Crown led evidence of two comparable hearings (5 days) being set in the Ontario Court of Justice in other matters on March 9, 2021 (close to the eve of the initial court shut-down due to the pandemic) approximately 3 months and 6 months out respectively. On the basis of this comparative evidence, the Crown estimated the delay attributed to COVID-19 associated with the setting of the date for the preliminary hearing in the case at bar to be 120 days, bringing the net delay to 27 months and 20 days.

[21] Regardless of whether 120 days represents a correct calculation of the delay in setting the date for the preliminary hearing due to the onset of the pandemic, I accept the Crown’s submission that the impact of the pandemic will not always be readily quantifiable, nor need it be in borderline cases. In the case of R. v. Meir, [2022] O.J. No. 1177 Prutschi, J. noted “though I cannot definitively measure the extent of the COVID-generated delay, I find the pandemic undoubtedly caused at least enough delay to place this borderline case (with a net delay of 18 months and 2 weeks) below the presumptive ceiling.”

[22] I find that the case at bar, representing a net delay of 31 months and 20 days in the Superior Court of Justice, to be similarly a “borderline case” for this purpose..

[23] I adopt the analysis offered by Dunphy, J. in R. v. Titus, 2022 ONSC 3484 at paras. 17-18 as follows:

The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.

The simple fact of the matter is that the justice system cannot expand and contract at will and without limit to accommodate every contingency. There has never been an emergency in the history of the administration of justice in this country that has resulted in this degree of court closures lasting for anything close to this amount of time. Ever.

[24] As confirmed by Niecharz, J. in R. v. Schardt, 2021 ONSC 3143 at para. 69 and acknowledged by the Crown in the case at bar,

finding that the pandemic and consequent impact on the court constitutes a discrete event does not necessarily qualify the entire period of the pandemic as an exceptional circumstance justifying delay beyond the presumptive ceiling. There remains an obligation on the Crown and the justice system to mitigate the delay. There also remains an obligation on the part of the judge to assess whether there are other causes contributing to the delay during the same period.

[25] The Crown submits that it has provided the court with evidence of its efforts to mitigate the delay, including making itself available for early dates for Crown pre-trials and Judicial pre-trials. Moreover, the Crown initiated contact with defence counsel and the trial coordination office and provided their own work product to streamline discussions for trial and the preliminary hearing, providing detailed witness and evidence lists, itemizing who each witness would be called for. Although sharing its work product may not have directly impacted the delay, it does demonstrate the Crown’s determination to press the matter forward in an efficient manner.

[26] In response to a question from the bench with respect to what the Crown could reasonably have done but failed to do to mitigate delay, the applicant’s counsel suggested that the Crown could have made inquiries of the trial coordination office, after the dates were set at the judicial pretrial held on July 8, 2021 for the 11(b) application, the pretrial motions and for trial, as to whether any dates had opened up.

[27] In support of this submission the applicant relies upon the following passage from Greenidge at para. 44 where Monahan, J. stated,

notwithstanding the pandemic, the Crown should have at least asked the OCJ trial coordinator whether this case could be moved up and heard under the Jordan ceiling. I don't know what the result of those inquiries would have been, but it is possible that earlier dates would have been offered. Even if the result was that it could not be moved up, this step should have been taken in furtherance of the Crown's duty to demonstrate that it took reasonable efforts to mitigate what is says was the delay caused by the pandemic.

[28] I am unable to accept that the Crown was obliged in every case affected by the systemic impact of the COVID-19 pandemic to make pro forma enquiries of the trial coordinator as to whether earlier dates could be made available in order to position itself to demonstrate that it took reasonable efforts to attempt to mitigate delay caused by the pandemic.

[29] Rather, as stated by Laliberte, J. Sandu at para. 43 (7) “the reasonableness of the efforts made by the court and Crown to respond and mitigate delay requires a contextual approach. It must be appreciated in light of the deep and long-standing repercussions of the pandemic on the Justice system.”

[30] In my view it is not appropriate for the court to be prescriptive and formulaic in dictating specific steps which the Crown is obliged to take in every case, but rather the court should take a contextual approach to determine whether what was done or not done was reasonable in the circumstances of the case. There was nothing in the context to suggest that earlier dates for pre-trial motions and trial had any realistic potential of becoming available to bring the trial within the presumptive ceiling and that pro forma enquiries of the Trial Coordinator by the Crown would have been effective.

[31] I find that the Crown did act reasonably to address the problem of delay of the case before it exceeded the ceiling. The Crown was not by any measure complacent and did not sit idly by waiting for the delay to exceed the presumptive ceiling.

Disposition

[32] I find that the completion of the applicant’s trial has been delayed by a discrete exceptional circumstance, being the onset of COVID-19 pandemic and its widespread and persistent effect on court operations so as to reduce the remaining net delay below the presumptive ceiling of 30 months set by the Supreme Court of Canada in Jordan. Moreover, the Crown acted reasonably in attempting to mitigate delay.

[33] The defence did not seek to prove that the remaining delay is nevertheless unreasonable.

[34] The delay from the laying of the Information on September 16 2020 to the date that the applicant’s trial is scheduled to conclude, being May 5, 2023, does not breach the applicant’s right to be tried within a reasonable time pursuant to section 11(b) of the Charter.

[35] The application is therefore dismissed.

D.A. Broad, J.

Date: January 06, 2023