Court File and Parties
COURT FILE NO.: CR-23-30000237-0000 DATE: 20240308 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. Terrell als
BEFORE: S.F. Dunphy J.
COUNSEL: James Miglin, for the Applicant Defendant Jason Gorda, for the Respondent Crown
HEARD at Toronto: March 1, 2024
Reasons for Decision – s. 11(b) Application
[1] The applicant was arrested on March 18, 2020. The applicant seeks to stay the charges against him pursuant to s. 11(b) and s. 24(1) of the Charter of Rights and Freedoms. His seven-day trial before a jury is currently scheduled to be completed by April 30, 2024, 49.5 months after his arrest.
[2] The main issues on this application are the correct attribution of the delays within the categories established in of R. v. Jordan, 2016 SCC 27 including what delay if any can be attributed to the exceptional circumstance of Covid and which is properly characterized as Defence Delay within the Jordan framework in light of the Supreme Court decision in R. v. Hanan, 2023 SCC 12 and the inability of defence counsel to accept earlier trial dates offered by the Court when setting trial dates.
[3] Expressed in terms of days, the presumptive ceiling for trial within a reasonable established by Jordan is 2.5 years or 910 days. The time from the arrest of the applicant until the scheduled completion of his trial is 1505 days or 595 days beyond the presumptive limit.
[4] There are three issues that do not arise on this application.
[5] First, there is no suggestion that any portion of the delay can be characterized as defence delay arising from acts or tactics calculated to delay the trial. As far as can be seen, the parties appear to have acted professionally and cooperatively throughout. This is demonstrated by the efficient rate of speed with which this case proceeded through its initial stages in the Ontario Court of Justice despite court closures, working from home and the pandemic. While I have found significant stretches of time to be properly characterized as “Defence Delay” within the Jordan framework, that characterization by me is not intended to suggest fault but is simply a description of what happened and how the time frame in question ought properly be characterized within the Jordan framework and in light of the Supreme Court’s decision in Hanan. Following the decision of the applicant to change counsel, there is no suggestion that the unavailability of defence counsel for various trial dates offered thereafter could have been remedied by any step counsel had open to him but failed to take.
[6] Second, there is no characterization of the facts in this case that amounts to anything approaching the culture of complacency that the Supreme Court found required the Jordan framework as a remedy. The entire procedural life span of this case has been under the shadow of a court system straining to adapt at a high rate of speed to the unprecedented court closures that followed the outbreak of the Covid pandemic the day before the arrest of the accused. The accumulated backlog from that era, while greatly improved since the courts fully re-opened, continues to this day. The efforts displayed by all participants – Crown, defence and court officials – reflect a focus on expediting the progress of this case as quickly as reasonably possible while reacting with pragmatism to the unexpected hurdles that arose.
[7] Third, this is not a particularly complex case and that factor does not enter into the Jordan analysis.
[8] For the reasons that follow, I have concluded that this application must be dismissed. When the procedural time consumed by this case is properly allocated, Defence Delay due to a change of counsel and thereafter because of new counsel’s calendar being unable to accommodate earlier trial dates offered accounts for virtually all of the delay in this case beyond the 30-month presumptive threshold. There were two unforeseeable Exceptional Circumstances that caused two of the four trial dates fixed during the course of the progress of this case to be lost (a third was unavoidably lost due to a prior trial commitment of defence counsel running longer than expected). All reasonable efforts to mitigate the impact of those Exceptional Circumstances were expended with the length of the delays in each case resulting from the decision of the applicant to change counsel and thereafter the inability of defence counsel to accept earlier dates offered due to conflicts in his own calendar.
[9] The Exceptional Circumstance of Covid has also had a particularly pervasive impact on the progress of all jury trials through the system including this one given the number of moving parts that must be orchestrated to conduct jury trials. Those impacts manifest themselves in different ways as all participants have been operating with less room to adapt to the unforeseen due to the backlogs and the ripple effects of them on trial calendars. There has been no failure on the part of the Crown or the Court to mitigate the impact of unforeseen Exceptional Circumstances.
Background facts
[10] Mr. Als along with another co-accused was arrested on March 18, 2020 in connection with a home invasion and faces charges of robbery and various firearms offences. A total of four trial dates have been fixed for this non-complex jury trial during the course of its progress through the system (the current, and hopefully last, such date being April 22, 2024). I have divided that total time into five different periods for the purpose of attributing the time taken in each to the relevant categories established by Jordan.
(i) OCJ Proceedings: March 18, 2020 through December 20, 2020
[11] This first time period covers the time from the arrest of the accused until his committal to stand trial at the conclusion of the preliminary inquiry. The defence concedes that 34 days of this time frame – April 29, 2020 through June 2, 2020 can properly be characterized as Defence Delay due to issues associated with the accused retaining counsel.
[12] From a bird’s eye view, the case proceeded fairly efficiently through the OCJ with committal for trial happening in about nine months despite the closures associated with the pandemic. Part of the reason that it moved as swiftly as it did was because of the priority in-custody matters received under the Covid scheduling protocols put in place. This benefitted Mr. Als who was out of custody because his co-accused (Mr. Williams) was in custody.
[13] I was asked to conclude that no part of this first period can be attributed to the Exceptional Circumstance of Covid simply because the overall progress of the case appears to have been reasonable. In my view, that is entirely too simplistic.
[14] I concur in the observations of Goldstein J. in R. v. Nikoforos, 2024 ONSC 456 that “it is not a simple matter of measuring speed” (at para. 12). The pandemic clearly was a relevant circumstance in the scheduling of virtually everything that took place in that initial time frame. As the Court of Appeal in R. v. Agpoon, 2023 ONCA 449 observed (at para. 21) “there is a systemic perspective within which the pandemic must be seen” because the Jordan framework of assessing reasonableness of delay “takes its colour from the surrounding circumstances” and “the surrounding circumstances here are systemic”. The Agpoon court rejected the idea of complicated micro-counting the resulting delays but recommended instead stepping back and adopting a bird’s eye view.
[15] In the present case, the shut-down of the courts began the day before the arrest of Mr. Als on March 17, 2020. While virtual proceedings such as judicial pre-trials gradually resumed – initially by telephone and then via Zoom - the courts did not open until July 6, 2020 with a phased re-opening occurring thereafter. The parties were able to take advantage of their early access to the booking window and secure a virtual preliminary hearing on offered dates in late November and early December 2020. That booking was confirmed on July 22, 2020. The preliminary hearing concluded in December 18, 2020 and a committal order was made on December 20, 2020. The case thus proceeded from “soup to nuts” in the OCJ in about nine months.
[16] Rather than parsing the time within the OCJ into minute slices of “defence delay”, “institutional delay” and “Covid delay” I think the Agpoon “bird’s eye” view approach provides a more realistic view of the delay accrued during this first phase.
[17] The court was closed for a total of 110 days following Mr. Als’ arrest. I am of course not suggesting that this case might have proceeded to the point of scheduling a preliminary inquiry within three weeks (the preliminary inquiry was scheduled approximately three weeks after courts re-opened). It certainly would not have done so. The conceded defence delay of 34 days would have left the case ready to secure a date significantly earlier than July 22, 2020 but there was no court official able to schedule it. Further, windows for a preliminary inquiry prior to November 30 might have been open but for the pandemic. The point is that all of these are imponderables that are incapable of precise measurement and attempting to do so would utterly miss the true nature of the systemic delay due to the shut-downs that was growing. For example, had the committal intervened six or eight weeks before it did, different windows for jury trials might have been open in the Superior Court instead of jury trials having been suspended – again – when this case was transferred to Superior Court in early January 2021. Time lost over the Christmas break as the file was being transferred might not have been lost, etc.
[18] Taking the bird’s eye view both of the proceedings in the OCJ and the context of systemic shut-downs, phased re-openings and the greater systemic impact of the pandemic on jury trials, I would allocate 55 days (or 1/2 of the relevant shut-down period) to the Exceptional Circumstance of Covid during this first phase. This Exceptional Circumstance subsumes the conceded 34 days of Defence Delay which I would not double count. I have taken only half of the total shut-down period into account because it appears to me that this case also benefitted to some degree from scheduling tailwinds owing to the relative priority in the re-opening process given to in-custody cases.
(ii) SCJ Intake to first trial date: December 20, 2020 to July 26, 2021
[19] Toronto was under a full black-out of jury trials from late October 9, 2020 until March 17, 2020. On that date, the resumption of jury trials beginning on July 5, 2021 was announced. That does not mean there was no forward progress in this or other matters during the blackout period. Judicial pre-trials were able to be conducted. A severance application from a co-accused was dealt with. However, it was not possible to book any trial dates in Superior Court from the date of committal for trial (December 20, 2020) until March 17, 2021 – a period of 86 days. It appears that the Toronto trial co-ordinator began to work on distributing available trial dates after the scheduled re-opening as early as March 2, 2021 or 71 days following the committal to trial. The parties were quickly able to secure a trial date of July 26, 2021 benefitting from a combination of luck, diligence and the priority afforded the case due to a co-accused in custody. This case was scheduled to be one of the very first jury trials conducted upon the re-opening of the courts.
[20] I would attribute 71 days to the Exceptional Circumstance of Covid during this initial phase of the transfer of the matter into Superior Court prior to July 6, 2021.
(iii) Adjournment of first trial date to adjournment of second trial date: July 26, 2021 to December 5, 2022
[21] On July 6, 2021, the Crown notified the defendants that it would be seeking an adjournment of the trial due to a family emergency affecting assigned Crown counsel and the inability to replace him at that late juncture. The next day, counsel for one of the co-accused (Mr. Williams) brought an application to be removed from the record his client having already discharged him and taken steps to secure Legal Aid permission to retain new counsel.
[22] Immediately upon learning of the probable adjournment of the first trial date, the Crown began working with the trial coordinator to attempt to find alternative dates. Multiple dates in September were secured and offered to the defence. Those efforts swiftly ran aground due to the fact that both co-defendants were in the process of obtaining new counsel. For this reason, the various available dates in September offered by the trial coordinator could simply not be taken up and the process of obtaining new trial dates came to a halt while the process of retaining and instructing new counsel for the defendants proceeded.
[23] It is clear that the reason the case was not able to be rescheduled to any of the alternative dates beginning September 13, 2021 was due to the fact that both co-defendants were in the process of retaining new counsel. That process entailed, in the case of the applicant at least, being rejected by Legal Aid, considering or undertaking an appeal of that decision and then bringing a Rowbotham application. The Rowbotham application was filed by September 21 but was not granted until October 12, 2021. On September 21 and on prior appearances (September 10, August 27, August 24, August 17) the Crown and the Court had continuously noted the need to move the matter along and get a trial date set quickly as well as the readiness of the Crown to proceed throughout. The Crown continually pressed for frequent status reports in open court so that “we keep the pressure up essentially on this” (on August 27).
[24] Between October 12 and December 7, three judicial pre-trials were held. Resolution was reached in the case of the co-accused in custody and a date set to receive his guilty plea. The Crown circulated a list of available 2022 trial dates in February, March, April, May, August, September, October and December. Applicant’s counsel indicated that he was unavailable until November 14, 2022 with limited dates in September and October that did not intersect with the dates offered. The earliest date available to both applicant’s counsel and the court was December 5, 2022. This date was confirmed on December 14, 2021. The Crown made efforts to have the matter brought back on earlier to see if earlier trial dates became available and could be accommodated. Applicant’s counsel resisted earlier return dates as being of “no utility” because there was only a “one percent chance that there are going to be dates that are offered that I can accommodate this summer”.
[25] How then should the time from the adjournment of the first trial date to the scheduled commencement of the second trial date on December 5, 2022 be allocated in terms of the Jordan framework?
[26] The defence has conceded that the following portions of this time frame may be attributed to defence delay (total 84 days):
a. July 26 through September 21: discharging former defence counsel and retaining new counsel (56 days) b. November 16 through December 14, 2021: confirming instructions following a judicial pre-trial (28 days).
[27] The defence submits that none of the remaining delay through to the current trial date of April 22, 2024 can be attributed to any Exceptional Circumstance but agrees that 119 days applicable to the next time phase (to be discussed) should be characterized as Defence Delay. All of the delay that follows - excepting that 119 day period - is described by the applicant as the responsibility of the Crown or as institutional delay none of which will justify exceeding the Jordan presumptive time limits.
[28] In my view that is an entirely unrealistic and artificial view of what actually happened.
[29] The adjournment in July 2021 was sought and granted on July 13, 2021 at the request of the Crown and it is the Crown that first notified defence counsel in writing of its intention to seek such an adjournment on July 6. I can see no basis to disagree with the Crown’s position that this adjournment is properly characterized as the product of the Exceptional Circumstance of a family emergency: it was unforeseeable and unavoidable. It arose with sufficient proximity to the trial date to deprive the Crown of any realistic alternative short of an adjournment. The Crown immediately sought to mitigate the impact of the delay by seeking new and early trial dates and presenting these to counsel. The Crown’s actions over the ensuing months clearly indicate that there was no complacency shown. Maximum pressure to resolve the issue of retaining new defence counsel was applied so that a new trial dates could be fixed as soon as possible.
[30] While the Exceptional Circumstance of Crown unavailability was the proximate cause of the adjournment, it was not the sole cause. The email from the Crown seeking an adjournment on July 6 was the first communication between the parties on the subject it is true, but by that time at least one of the co-defendants (Mr. Williams) had already discharged his counsel and started the process of seeking Legal Aid approval to retain new counsel but had not yet so notified the other parties. The court formally vacated the July 26 trial date on July 13 at the same time as it ordered the discharge of Mr. Williams’ counsel. By the time the matter returned to be spoken to on July 27, 2021, the applicant had discharged his own counsel as well.
[31] It might be an interesting chicken and egg discussion as to whether the adjournment of the trial was due to the Exceptional Circumstance of a family emergency of Crown counsel or to Defence Delay arising from the change of counsel. In hindsight at least it is clear that the trial could not have proceeded at all events. Either reason would be sufficient to exclude the time from counting against the Jordan time limit.
[32] When the July 26 trial date was vacated, a trial date of September 13 was available but could not be accepted due to the fact that both defendants had discharged their counsel and were in the process of confirming the retainer of new counsel. The delay due to this Exceptional Circumstance was thus 49 days.
[33] The process of retaining and instructing new counsel had to be completed before new trial dates could be canvassed and fixed. That process required until October 12 to be completed. The parties began discussing trial dates in the second half of November following several judicial pre-trials and it quickly became apparent that none of the offered dates could be taken up before the offered December 5, 2022 date due to applicant’s counsel being unavailable. That date was selected and confirmed by the court on December 14, 2021.
[34] Is it fair to attribute the entire delay from September 13, 2021 until the replacement trial date of December 5, 2022 to Defence Delay? In my view it would be unfair not to.
[35] The window to slide into an early trial date was a finite one particularly given the number of backlogged cases competing for scarce jury time slots. The opportunity to do so and mitigate the impact of the adjournment of the trial was lost due to the fact that both co-accused decided to change counsel. Until that was attended to, no forward progress could be made on finalizing the replacement trial date. Thereafter, time was needed to instruct counsel. The co-accused resolved his charges. There were multiple trial dates offered to the defence prior to November 5, 2022 which the applicant was unable to accept due to the unavailability of his counsel.
[36] This is not a case like Hanan where the Crown had the opportunity to mitigate the delay by agreeing to a re-election but chose not to. There is no step the Crown could have taken here that would have shortened the delay in any way during this time frame and the Crown maintained constant pressure to avoid allowing this matter to slide any longer than necessary while new counsel was being retained and instructed. Even when the December 2022 date proved to be the earliest available date open to applicant’s counsel, the Crown attempted to have the matter return to assignment court frequently to address possible windows in availability opening up should another case resolve prior to trial. This was not pursued because applicant’s counsel estimated that odds of his own availability opening up to be very slim and not worth the effort required to pursue it.
[37] I think that the correct approach is to allocate the delay attributable to this Exceptional Circumstance as comprising the time from the original anticipated trial date until the date of the earliest available replacement trial date that could not be accepted due to the supervening cause of a change of defence counsel (49 days). Thereafter, the time required to confirm the retainer of new counsel and for new counsel to agree to a new trial date is properly attributable to Defence Delay.
[38] I acknowledge that there are other ways of slicing up this time frame as between Defence Delay and Exceptional Circumstances. For example, the Court offered a trial date on May 30, 2022 that defence could not accommodate. However the block of time is divided, it must be divided between Defence Delay and the Exceptional Circumstance that caused the original adjournment. There is no part of this time that can reasonably be attributed to neither of those two causes.
[39] I find the correct attribution of the delay in this third time frame to be as follows:
a. Exceptional Circumstance: July 26 – September 13 or 49 days; b. Defence Delay (retaining, instructing counsel and lack of defence counsel availability): September 13, 2021 – December 5, 2022 or 448 days.
(iv) December 5, 2022 through to April 3, 2023 (third trial date)
[40] The December 5, 2022 trial date was lost due to the unavoidable unavailability of applicant’s counsel when a prior trial engagement went on longer than anticipated. There is no fault to be attributed for that circumstance, but the delay resulting is clearly Defence Delay in the Jordan framework.
[41] In arranging a return date to court to fix a new trial date for this case, counsel for the applicant advised the Crown “I don’t think it will have any 11(b) concerns once we get the dates. It will just be a matter of waiting to put them on the record”. This comment does indicate the general understanding that the case was not then in Jordan trouble despite being well past the 30 month anniversary of the arrest of the applicant.
[42] The date of April 3, 2023 was the first available trial date thereafter and was agreed to. In the circumstances, this was a remarkably swift recovery from the unexpected circumstance of defence counsel’s unavailability and is indicative of the efficiency with which all parties were attempting to respond to and mitigate delays arising from unexpected quarters.
[43] The delay from the lost trial date of December 5, 2022 through to the rescheduled date of April 3, 2023 was clearly Defence Delay caused solely by the unavailability of defence counsel. April 3, 2023 was the first available date and was accepted. This Defence Delay is 119 days. This calculation and attribution is conceded by the applicant.
(v) April 3, 2023 through to April 22, 2024
[44] There was no judge available to conduct this trial when it was called on April 3, 2023. I have been asked to determine that this circumstance was “due” to the failure of the Minister to appoint judges. The defence urges me to find that it is unreasonable for an accused person to have their trial adjourned by reason of a lack of judicial appointments.
[45] Out of a complement of approximately 90 judges in the Toronto region, there will always be a certain degree of turnover that cannot be accurately forecast and there isn’t really a practical capacity to appoint judges on stand-by in excess of the statutory limits to await such un-forecast vacancies. Be that as it may, the Toronto region roster of judges on the criminal team as of April 3, 2023 was broadly similar to what it had been prior to the pandemic.
[46] I cannot attribute the adjournment of the trial on April 3, 2023 to the rate of judicial appointments being made by the Minister of Justice. Indeed, an appointment was made to the Toronto region in February 2023 and another in early May. I cannot find anything in the appointments process and its administration in the Toronto region that rises to the level of “causing” this adjournment still less of depriving Mr. Als of his constitutional right to trial within a reasonable time.
[47] I find that the proximate cause of the adjournment was a function of unanticipated events at that particular time. The transcripts of the appearances before the court (March 30, April 3 and following) are silent as to the reason why no judge was available to hear the case. The Crown has placed before me the transcript of another matter before Goldstein J. (who was the scheduling judge for the short trial list) from April 4, 2023 that does shed some light on the reasons for the lack of a judge to hear this caase (which the March 30 transcript made clear applied to more than one matter). On April 4, 2023 Goldstein J. noted:
“there’s just a lot of moving parts this week … we have some people who are down and out with Covid and various things so it’s made us do a little bit of scrambling”
[48] I find that the delay beginning on April 3, 2023 was a consequence of an Exceptional Circumstance. A judge was found to hear the pre-trial motion which, as it turns out, took longer than the parties had anticipated to hear and decide so there is at least some uncertainty as to whether the trial could have been completed in the allocated time before a jury at all events (the jury could not have been picked until the pre-trial motion was decided). A decision was not rendered on that motion until June 22, 2023 and the judge who heard it indicated that she was not in a position to deliver a “bottom line” ruling the week after the evidentiary hearing.
[49] There were reasonable mitigation steps taken during the ensuing delay. As noted above, the pending pre-trial motion was able to be heard and decided. This reduced the trial time estimate from ten days to seven – a factor of some assistance in obtaining earlier trial times.
[50] Multiple judicial pre-trials were also held during the ensuing delay and prior to the new trial date being confirmed. Ultimately, the April 22, 2024 date was the earliest date that defence counsel’s calendar could accommodate. The earliest date open to the court was September 11, 2023. I think it is reasonable to attribute the delay after the earliest date the court and Crown were available (i.e. September 11, 2023) to Defence Delay. There was no step the Crown could have taken to mitigate the delay beyond what was done as was the case in Hanan. All parties are required to respond to Exceptional Circumstances and there is nothing in the response of the Crown or court to the situation that extended or failed to mitigate the resulting delay. If not Defence Delay, the ensuing delay could only be characterized as being due to the adjournment which itself was due to an Exceptional Circumstance which would make no practical difference to the outcome of this application.
[51] In my view the correct attribution of the ensuing delay in this time frame is as follows:
a. April 3, 2023 – September 11, 2023 (161 days): Exceptional Circumstances (Unavailability of Judge and Covid); and b. September 11 – April 22, 2024 (224 days): Defence Delay (unavailability of defence counsel).
(vi) Summary of Findings and Conclusion
[52] The following table summarizes the manner in which I have attributed the various periods of delay:
[53] Prior to considering the impact of Exceptional Circumstances, the Net Delay in this case is already more than six months below the Jordan threshold. The Exceptional Circumstances add up to more than a year beyond that. This application cannot succeed no matter where the dividing line is placed between Defence Delay and Exceptional Circumstances. In the places where there is any ambiguity between the two there is no third option.
[54] In Jordan the Supreme Court directed trial judges to “be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it” (at para. 74). In such cases, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” (at para. 74).
[55] The assessment of s. 11(b) applications was never intended to entail a highly technical micro-analysis of every step taken by each party on every day. The Supreme Court of Canada fashioned a thirty-month presumptive ceiling to measure compliance with the constitutional promise of trial within a reasonable time but also directed judges to apply a pragmatic, real-world assessment of the causes of delay. Jordan was intended as a pragmatic analytical framework to concretize this constitutional promise and must be interpreted in that light. This is indeed the same message the Supreme Court conveyed in Hanan calling for an “all relevant circumstances” view to determine how to apportion delay among the participants (at para. 9). The “bird’s eye view” approach was also the one directed by the Court of Appeal in Agpoon.
[56] In the present case and applying that pragmatic, “all relevant circumstances” focus, I find that the Crown has demonstrated reasonable efforts to respond to circumstances as they arose and took all reasonable steps to conclude the trial as soon as possible throughout including after it became apparent that the trial would be completed beyond the Jordan ceiling. The combination of Exceptional Circumstances and Defence Delay accounts for every single day of delay since the initially-scheduled trial date of July 26, 2020 was lost. None of the time can be ascribed to a culture of complacency. A review of the transcripts and the emails exchanged makes it clear that the Crown and the court treated the task of getting this trial scheduled at the earliest possible date with all reasonable urgency at all times and made every reasonable effort to have the trial rescheduled at the earliest possible time. This case had a string of bad luck particularly when the defence change of counsel intersected with Crown counsel’s family emergency but I cannot find any failures or missed opportunities in the management of it that could reasonably have shortened the delays that ensued. The recovery time from unanticipated delays in each case was a function of the time required to change counsel and, following that, the conflicts in defence counsel’s calendar which were the limiting factor in responding to unforeseeable subsequent events.
[57] For the foregoing reasons, I find there is no Net Delay in excess of thirty months prior to accounting for the Exceptional Circumstances that I have found exist. The application is accordingly dismissed.
S.F. Dunphy J. Date: March 08, 2024
