Court File and Parties

COURT FILE NO.: CR-21-922 DATE: 20240221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Prince Charles and Frederick Leon Accused

Counsel: Jayme Lesperance and Iain Skelton, for the Crown Morrie Luft for the accused, Frederick Leon The accused, Prince Charles, did not participate

HEARD: November 17 and December 20, 2023 and January 19, 2024

Publication Ban

PUBLICATION BAN PURSUANT TO S. 648(1) OF THE CRIMINAL CODE OF CANADA

Pursuant to s. 648(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to render its verdict.

Ruling on s. 11(b) Charter Application

DUBÉ J.

Introduction

[1] The accused persons, Prince Charles and Frederick Leon, are charged on May 18, 2021, in the City of Windsor with committing second degree murder of the person Jovan Anthony Burgher, contrary to s. 235 of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”).

[2] The five-week trial by judge and jury is scheduled to commence on May 13, 2024, and is anticipated to end on June 14, 2024. Nine days of pre-trial motions are scheduled for February 20, 2024.

[3] The accused, Frederick Leon (“Leon”), brought an application alleging a violation of his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms (“Charter”) and seeks to stay of the charge pursuant to s. 24(1) of the Charter.

[4] The co-accused, Prince Charles (“Charles”), discharged his former counsel, who was formally removed from the record on September 28, 2023, and has just recently retained new counsel. Charles did not participate in this Application, and he is not alleged to have independently caused any delay that may be attributable to Leon.

The Facts

[5] On consent, I rely on the facts set out in R v. Leon, 2021 ONSC 8371, in which Thomas J. ordered the accused to be released on bail. The facts are as follows at paras. 2 to 11:

On Tuesday, May 18, 2021, at approximately 7:30 p.m., the victim, Jovan Burgher, (“Burgher”), was at the residence of Jessica Dominix, (“Dominix”) and Richard “Shayne” Kirkham, (“Kirkham”), situated at 545 McEwan Avenue, in the City of Windsor.

At approximately that time, Prince Charles, (“Charles”), arrived in a black Mitsubishi sport utility vehicle in the company of a male. After a brief conversation with Dominix and Kirkham at the vehicle, all parties returned to the residence where they joined Burgher inside.

After a brief period of time, Dominix and Charles were seen by witnesses fleeing the residence after hearing a single gun shot. Dominix continued southbound on foot, while Charles returned to the Mitsubishi and drove away.

Charles returned to the area and approached pedestrians to ask if they had seen anybody running. A witness explained that they had and continued on their way. The same witnesses immediately observed the other male assaulting Burgher in an alleyway between the houses. He was seen striking Burgher with a black handgun, kicking and stomping him with his feet, smashing his head against a cinder-block wall, and holding a knife to his throat.

The witnesses waved to Charles to alert him to the assault, believing he was there to provide assistance. Charles proceeded to park near where the assault was occurring, exit the vehicle, and begin stomping the victim with his feet. Charles appeared to notice that the witnesses had called 9-1-1. Charles retrieved the other male and the pair returned to the vehicle. Charles returned to the driver’s seat, and the other suspect occupied the front passenger seat. No other parties were observed entering or exiting the vehicle. Witnesses obtained the license plate and took photographs of it as the suspects were departing.

Members of the Windsor Police Patrol Services attended shortly thereafter and located Burgher between the residences, having sustained serious injuries. Burgher provided limited details before being transported to Windsor Regional Hospital, Ouellette Campus. While en route, Burgher lost consciousness.

Based on the above information, reasonable grounds existed to arrest Charles for aggravated assault against Burgher.

On May 21, 2021 the victim Burgher succumbed to his injuries. The cause of death being significant head injuries including intra-cerebral hemorrhages. At that time, Charles was charged with first degree murder. The ongoing police investigation compiled statements from the accused Charles, Dominix, Kirkham, Keith Walker (who resided upstairs at 545 McEwan) and Charles’ girlfriend Stephanie Rodriguez. Together with that information, police sought assistance from Intelligence Services within the Toronto Police Service. All of that information led police to conclude that the male with Prince Charles was the applicant, Frederick Leon, who resided in Toronto and was the cousin of Charles.

In addition, police obtained surveillance video from a local restaurant which clearly depicts the applicant Leon and Charles together about four hours before the beating. The applicant was wearing clothing consistent with that described by the witnesses. Of significance is the fact that a quantity of fentanyl, methamphetamine and cocaine was found at 545 McEwan Avenue. Dominix and Kirkham were charged with drug offences as a result. The deceased Burgher had outstanding charges for possession for the purpose of trafficking.

[6] On May 21, 2021, Charles was arrested by the police for first-degree murder. He was subsequently released on bail but then breached his conditions on September 5, 2023. He was re-arrested on September 25, 2023, and has remained in custody ever since.

[7] On June 9, 2021, Leon was arrested for first-degree murder after turning himself into the police. He was subsequently granted bail on December 21, 2021, and currently remains out of custody.

[8] A preliminary hearing was conducted in the Ontario Court of Justice (“OCJ”) on April 26 to 29, May 2 to 4, 10 and June 28, 2022, following which Charles and Leon were committed to stand trial for second degree murder.

[9] The matter was subsequently adjourned to assignment court in the Superior Court of Justice (“SCJ”) on August 5, 2022. After a judicial pre-trial (“JPT”) was held on September 8, 2022, the matter was adjourned to the September 16, 2022, assignment court where a five-week jury trial was set.

[10] It appears that, for the most part, both defence and Crown counsel worked together to bring this case as quickly as possible to trial.

The Analytical Framework

[11] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 3 (“Jordan”), 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.

[12] However, a “culture of complacency towards delay has emerged in the criminal justice system” which has unfortunately caused great harm to public confidence in the justice system: Jordan, para. 40.

[13] With that concern in mind, the Supreme Court in Jordan, at para. 49, set out a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the OCJ, the presumptive ceiling from the date of charge to trial is 18 months. For cases going to trial in the SCJ, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.

[14] In R. v. Zahor, 2022 ONCA 449, at paras. 60-67 (“Zahor”), the Ontario Court of Appeal provided a succinct framework for evaluating an application under s. 11(b) of the Charter in accordance with the principles outlined in Jordan.

[15] According to the Court of Appeal in 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.

[16] 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.

[17] The charges were laid on June 7, 2021, which is not contested, and the trial is scheduled for five weeks, concluding on approximately June 14, 2024. Therefore, the total delay in accordance with the formula set out in R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, is anticipated to be 1101 days or 36.2 months (1101 divided by 30.417), which is 187 days or 6.2 months (187 divided by 30.417) beyond the presumptively reasonable Jordan date – that date was December 8, 2023, or 914 days (30 months) after the information was sworn. [1]

[18] The defence brought their application, dated August 31, 2023, approximately 11 ½ months after the jury trial was set on September 16, 2021.

The Position of the Parties

[19] 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 the complexity of the trial. Therefore, the charges ought to be stayed.

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

Analysis

Step 1: Calculate the total delay:

[21] The total delay in this case is 1101 days or 36.2 months.

Step 2: Calculate the net delay:

[22] 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.

[23] 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: Jordan, at para. 64.

[24] With respect to conduct by the defence legitimately taken to defend against the charges, the Supreme Court in R v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, explained at paras. 32 and 33:

[32] … Irrespective of its merit, a defence action may be deemed to not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference towards delay.

[33] As well, inaction may amount to defence conduct that is not legitimate Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently”.

[Citations omitted].

[25] On the issue of defence inaction, the Supreme Court had this to say in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216, at para. 34:

An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected. Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously”. Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system. Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings. [Citations omitted].

[26] The defence and the Crown both agree that the defence is solely responsible for the delay that resulted on two occasions, which are as follows:

a. From May 10, 2022, to June 28, 2022 (48 days) – delay attributable to the defence as a result of a request to question three additional police witnesses by way of discovery. The defence explicitly waived delay on the record for this period. DEFENCE DELAY IS 48 DAYS

b. From April 21, 2024, to May 13, 2024 (20 days) – delay attributable to the defence as a result of an explicit waiver when the defence was not available to start the trial on April 21, 2024, for religious reasons. The next date available to provide consecutive days for sitting before the jury was May 13, 2024. DEFENCE DELAY IS 21 DAYS.

[27] The defence concedes that total delay (1101 days) less defence delay (48 + 21 days) equals 1032 days of net delay or 33.93 months, which is still above the Jordan presumptive threshold.

[28] The Crown alleges that there are several other periods of time that warrants a deduction for defence delay, which the defence disputes. These periods are as follows:

a. From June 24, 2021, to June 28, 2021 (3 days) – Mr. Luft failed to attend remand court and no instructions were left for duty counsel or his client, Mr. Leon.

b. From October 12, 2021, to October 26, 2021 (13 days) – Mr. Luft again failed to attend remand court and no instructions were left for duty counsel or his client, Mr. Leon.

c. From August 4, 2022, to September 8, 2022 (34 days) – Mr. Luft failed to file the Pre-Trial Conference Report (“PTCR”) as required in the SCJ Criminal Rules and Practice Directive. As such, Thomas R.S.J. (as he then was) refused to conduct a partial or fulsome JPT.

[29] The Crown is therefore arguing that the total delay (1101 days) less defence delay (48 + 21 + 3 + 13 + 34 days) equals 982 days, or 32.3 months, of net delay, which is still above the Jordan presumptive threshold.

June 24, 2021, to June 28, 2021, and October 12, 2021, to 26, 2021 – Mr. Luft failed to attend or leave instructions at a remand court date.

[30] The defence argues that failing to attend court or leave instructions with duty counsel or his client did not unreasonably delay the proceedings as it occurred during that period in which the defence is allowed to legitimately prepare its case and attempt to respond to the charges. In this regard, the defence was still receiving and reviewing disclosure and attempting to find dates available to schedule a preliminary hearing. Therefore, any failure to attend or leave instructions did not frustrate the proceedings, including the case management process.

[31] The Crown concedes that while there may have been preparatory steps taking place, such as providing ongoing disclosure, the failure to appear or leave instructions at the remand court stage frustrates the Court’s case management function and its ability to determine the status of outstanding issues in a case such as disclosure.

[32] I agree with the Crown. While I appreciate that the period at issue may be when the defence was still preparing its case, the failure by the defence to attend remand court dates exhibited “marked inefficiency or marked indifference” that still delayed the proceedings and frustrated the court’s ability to manage its process: Cody, at para. 32. On these occasions, the defence failed in their duty to actively advance their client’s right to a trial within a reasonable time and use court time efficiently: Cody, at para. 33. DEFENCE DELAY IS 16 DAYS

August 4, 2022, to September 8, 2022 – Mr. Luft failed to file the PTCR.

[33] The defence asserts that the Crown filed its PTCR only two days before the JPT and important disclosure, including the Information to Obtain a Judicial Authorization (“ITO”) for Leon’s phone, was still outstanding when the defence filed its PTCR. While the JPT proceeded, it did not finish before Thomas R.S.J. The JPT was instead adjourned for continuation on September 8, 2022, so the defence could obtain the outstanding disclosure. By September 8, 2022, all the outstanding disclosure was provided and the JPT was completed.

[34] The Crown argues that while the disclosure remained outstanding, Mr. Luft neglected to advise the Crown’s office or the Court beforehand of the importance of the outstanding disclosure, nor did he request, because of this, that the JPT be adjourned.

[35] Even though the defence failed to advise the Crown’s office beforehand about the outstanding disclosure in order to potentially salvage the JPT, I believe, overall, the delay was not solely attributable to the defence. The endorsement by Thomas R.S.J. appears to confirm that the outstanding disclosure, which had apparently been requested months before but not yet received, was part of the reason why the JPT was adjourned:

JPT commenced. Mr. Luft uploaded his report this morning and as such it is late and I have not seen it. Additionally the Crown has outstanding disclosure to provide. This matter should be adjourned to me on September 8th at 1 p.m. on Zoom to continue the JPT.

[36] Accordingly, I find no defence delay.

[37] In conclusion, I find that 85 days, or 2.8 months, is delay attributable to the defence. Accordingly, the net delay after deducting total defence delay from total delay is 1016 days (1101 days total delay minus 85 days defence delay) or 33.4 months.

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

[38] At this stage, if the net delay exceeds the presumptive ceiling, which it does, 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, as indicated, is 1016 days or 33.4 months.

Step 4: Consider Exceptional Circumstances:

[39] Where the net delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut the presumption by proving the additional delay resulted from exceptional circumstances.

[40] Delay from exceptional circumstances includes 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. [Emphasis in original].

[41] The Court of Appeal stated in Zahor 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. [Citations omitted].

[42] In this case, the Crown argues that the additional delay is reasonable because of the presence of a discrete event, namely, the COVID-19 pandemic (“the pandemic”), although I will also deal briefly with the issue of complexity.

Complexity

[43] The defence and the Crown both concede that this is not a complex case. After considering all the circumstances, I agree that this is a relatively simple and straightforward case. While it involves two accused persons, there are no novel or complicated issues, voluminous disclosure or large numbers of witnesses: Zahor, at para. 105.

COVID-19 Pandemic Delay

[44] The pandemic is a recognized discrete exceptional circumstance. This includes the backlog of cases generated as a result of the pandemic itself: R. v. Donnelly, 2023 ONCA 243, at para. 23.

[45] In R. v. Agpoon, 2023 ONCA 449, 427 C.C.C. (3d) 417, at para. 4 (“Agpoon”), the Court of Appeal acknowledged that Jordan was not written with a phenomenon like the pandemic in mind but said that the Jordan principles are adaptable. Starting at para. 27, the Court of Appeal identified the pandemic caused disruptions to the criminal justice system as: (a) province-wide court closures; (b) jury blackout periods; (c) local court closures and restrictions; (d) local availability of court facilities; and (e) priorities in addressing the backlog.

[46] The Court of Appeal stated in Agpoon, at para. 33:

Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes.

[47] The burden is on the Crown to establish the period of delay caused by the pandemic that is to be deducted from the total delay to determine whether the ceiling has been breached: Jordan, at para. 75. Whether the entire delay period caused by the event should be excluded depends on the reasonableness of the response by the Crown and the system; any portion of the delay that could have been reasonably mitigated should not be deducted: Jordan, at para. 75.

[48] The Crown advanced, and the defence focused, on only one pandemic occurrence as exceptional circumstances that constitute discrete events, namely, the delay it took in the SCJ from assignment court to the earliest date available to schedule the jury trial.

(1) Setting a date for a jury trial in the SCJ

[49] On September 16, 2022, this five-week jury trial was scheduled to commence on May 13, 2024, a delay of approximately 20 months. Nine days of pretrial motions were also set to begin February 20, 2024. As noted previously, the defence was not able to start the trial on April 13, 2024, the first available date offered by the Court, which was slightly less than 19 months after assignment court.

[50] The defence argues that at each juncture, including in the SCJ, meaningful steps were taken that demonstrated a sustained commitment to exercise their s.11(b) rights. Notwithstanding these efforts, the case has taken markedly longer than it should.

[51] For instance, after setting the jury trial, Mr. Luft proactively emailed the Trial Coordinator and requested that “[i]f anything earlier opens, could you please advise us?”

[52] Specifically in relation to the pandemic, the defence submits that it cannot be applied as a catch-all excuse to justify delay. The Crown must prove that “but for” the pandemic, the trial would have been completed within the presumptive ceiling, and show it took reasonable steps to mitigate the delay. With respect to the alleged pandemic delay, there is no direct evidence showing what efforts were made by the Trial Coordinator to mitigate the delay or what the pre-pandemic delay was for scheduling jury trials. Generally, the Court must assess whether there were other causes contributing to the delay and if so, then those periods will not be included in the delay to be deducted for exceptional circumstances.

[53] The Crown points to previous cases which found that the pandemic caused considerable delay in setting jury trials both in this and other jurisdictions and that the unprecedented delay in setting this particular jury trial is entirely inconsistent with pre-pandemic times.

[54] In this regard, the Crown argues, the ongoing challenges that the pandemic continue to have at the time when this jury trial was set is evident by the comments made by Thomas R.S.J. at assignment court on September 16, 2022. After being advised that Mr. Luft had requested that the Trial Coordinator contact him if earlier dates eventually become available, Thomas R.S.J. replied, “[the defence] can expect that significant efforts were made to set this matter earlier but there was nothing available.”

[55] The Crown submits that it is totally unrealistic to expect that individual cases such as this one – a jury trial that requires nine days of pretrial motions followed by five consecutive weeks of trial – should, as the defence appears to assert, be prioritized over others especially when many trials were adjourned during the pandemic and are still awaiting to be dealt with: see R. v. Rahl, 2023 ONSC 905, at para. 30. Further on this point, Doherty J.A. in R. v. Allen (1996), 110 C.C.C. (3d) 331 (ONCA), at p. 348, aff’d , [1997] 3 S.C.R. 700, said this about prioritizing individual cases:

… 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 and accommodate the needs of all cases. Where a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[56] Despite the position taken by the defence, I am satisfied that I do not require direct evidence to find a correlation between the pandemic and the backlog of cases that have resulted in the significant delay attributable to setting the trial date in this case. As it relates to the continuing negative impact that was created due the backlog from the pandemic, Dunphy J. said this in R. v. Titus, 2022 ONSC 3484, at para. 17:

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 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.

[57] In R. v. Hanna et al., 2023 ONSC 454 at para. 53 (“Hanna”), Carroccia J. described the challenges that existed when Pomerance J. (as she then was) attempted to set a date in assignment court for that jury trial on the February 11, 2022 – which was approximately 7 months before Leon set his trial date:

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 [Mr. Houle] 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:

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.

[58] Jury trials were suspended in Windsor for approximately 15 months for the following periods of time:

a. From March 17, 2020, to September 14, 2020 – a period of 6 months;

b. From November 21, 2020, to June 21, 2021 (except for those matters already in progress prior to November 21, 2020) – a period of 7 months; and,

c. From December 20, 2021, to February 28, 2022 (except for those matters already in progress prior to November 21, 2020) – a period of 2 months.

[59] In Hanna, Carroccia J. summarized the continuing impact that the pandemic has had on setting jury trials in the SCJ in Windsor, at para. 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.

[60] I find from my own personal experience, which I will discuss soon, that before the pandemic it would not have taken the approximately 19 months that it took in this case to find the earliest date to set a comparable five-week jury trial in the Windsor SCJ. In the absence of any other reasonable explanation, I find that the delay can only be attributable to the pandemic. Nakatsuru J. came to that same conclusion in R. v. Malhi, 2023 ONSC 7, when he said, at para. 28:

… [I]t 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.

[61] Despite Mr. Luft’s email request, which he also raised in court on September 16, 2022, I have no evidence to suggest that after the jury trial was set did the Trial Coordinator at any time attempt to mitigate the delay or offer any dates earlier than May 13, 2022. Likewise, nor do I have evidence indicating that Mr. Luft attempted in any way to actively advance his client’s s. 11(b) rights after the trial date had been set by contacting the Trial Coordinator, either alone or in coordination with the Crown, to determine if any earlier dates had freed up: see Jordan, at para. 138.

[62] In any event, I believe in the circumstances that it is safe to infer, and I do infer, that Mr. Luft was never advised of earlier dates by the Trial Coordinator simply because no suitable dates became available to accommodate nine days of pretrial motions and a jury trial that was scheduled to last five consecutive weeks. This is entirely consistent with the initial comments of Thomas R.S.J.’s at the September 16, 2022, assignment court when he indicated that no earlier dates were available for the jury trial. It also aligns with the September 9, 2022, email sent to the parties before assignment court where the Trial Coordinator stated therein that “[t]he [C]ourt does not have availability until 2024…”

[63] Despite comments by the defence about delay in assignment court and then a reference to an anticipated delay application in court on April 13, 2023, no formal s. 11(b) application was filed by the defence until August 31, 2023. This was approximately 11 ½ months after the trial date was set and only 9 ½ months before the start of the jury trial. By filing the s. 11(b) application relatively late in the process, the defence gave the Court, the Crown and numerous witnesses set to testify little time in which to readjust their schedule and accommodate earlier possible trial dates, in the off chance that earlier dates were even available.

[64] I am also satisfied that the Crown demonstrated after the trial date was set that they took reasonably proactive steps to attempt to reduce the length of the trial so it could be heard earlier than scheduled. This was especially so given the prospect of severance, due to Charles discharging his lawyer and remaining until recently without counsel. In this regard, the Crown laid out the following by way of email to defence counsel, dated September 19, 2023:

a. That there had been previous discussions between counsel on how to “streamline” the trial to ensure everything moves faster.

b. The prospect of a trial without Charles presented a “new opportunity to discuss areas where the Crown can draft Agreed Statement of Fact” and narrow issues, shorten the witness list and the length of trial.

c. Inquiring whether there was any potential for Leon to consider re-electing to a trial by judge alone, which could result in starting and finishing the trial sooner than scheduled.

[65] The Crown had also inquired on an earlier occasion if the defence intended to bring a s. 11(b) application so that immediate steps could be taken, if possible, to address any defence related concerns about delay. By email dated December 11, 2022, the Crown advised the defence of the following:

While many internal steps have been going on for the entire pandemic – Crown resources to resolving cases, dealing with the backlog, issuing stays for some cases in SCJ to allow other delay-sensitive cases to use that court time, no case is an island, there are multiple jury trials delayed by the significant period of time our region could not have jury trials from the pandemic, our office will try to do whatever steps we can to bring this trial forward if 11(B) is going to be pressed as an issue. We can try to take those steps now, we can’t in 2024 if the application is brought at the 11th hour.

[66] Credit is to be given to the Crown who after anticipating back in September 2023, that once Charles retained new counsel, which he has, and the prospect of each accused person being severed from the other, which the Crown eventually did, the possibility of then providing Leon with the option of re-electing a SCJ judge alone to attempt to reduce delay.

[67] Finally, based on the evidence, I agree with the Crown that the pandemic continues to play a significant and challenging role when attempting to bring a case to trial within a reasonable period not only in Windsor, but throughout the province, especially when compared to pre-pandemic times.

[68] In this respect, I have experience with the times to trial for cases in Windsor SCJ as I practiced in this jurisdiction as defence counsel from 1994 to 2021. Since my appointment, I have sat predominantly in Windsor and I am personally familiar with the pandemic-related backlog that the SCJ has experienced during the relevant periods of this case: see Agpoon, at para. 26.

[69] According to Agpoon, a judge is also entitled to take a broad view of the case when determining the amount of delay occasioned by COVID-19. On this point, the Court of Appeal explained, at para 22:

We join with the Jordan court in discouraging "complicated micro-counting" in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, "trial judges should not parse each day or month... [but] should step back from the minutiae and adopt a bird's-eye view of the case": Jordan, at para. 91.

[70] The delay between assignment court on September 16, 2022, and the first date available for this five-week jury trial on April 13, 2024, was approximately 574 days or 18.9 months. Without parsing out a specific number of days, weeks, or months, I am of the view that it would have taken markedly less time to set a comparable jury trial before the pandemic than it took to set this date.

[71] Being mindful of the fact that the impact of the pandemic on court operations is not always readily quantifiable (R. v. Vannoordennen, 2023 ONSC 6848 at, para. 72), I find it reasonable in this case to deduct that portion of the total delay caused by discrete exceptional circumstances when setting this jury trial that is equal to the time that exceeds the presumptive ceiling, which is at least 3.4 months, even though, as indicated, the total delay is likely much higher.

[72] As in Hanna, at para. 74, I attribute this delay to the backlog resulting from the need to reschedule numerous cases that could not be heard during the period that the courts were closed, or jury trials were not being conducted due to the COVID-19 pandemic.

[73] In conclusion, by subtracting the total delay of 1101 days or 36.2 months from defence delay leaves net delay of 1016 days or 33.4 months. Subtracting delay caused by discrete exceptional circumstances totalling 3.4 months or more, from the net delay leaves remaining delay that falls below the 30-month threshold.

Step 5: Consider Transitional Exceptional Circumstances:

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

Below the Presumptive Ceiling

[75] The defence conceded that they are not relying on this factor and therefore, I need not take it into account.

Conclusion

[76] 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.

Brian D. Dubé Justice

Released: February 21, 2024

Footnotes

[1] According to R. v. Shaikh, 1 month is equal to 30.417 days, which is approximately 365/12.