COURT FILE NO.: CR-22-70000675-0000 DATE: 20240105

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R v. jonathan martins

BEFORE: S.F. Dunphy J.

COUNSEL: Jackson Foreman, for the Defendant Applicant Nabeel Sheiban, for the Crown Respondent

HEARD at Toronto: January 4, 2024

REASONS FOR DECISION – s. 11(b) Application

[1] This is an application by the defendant to have the charges against him stayed on the grounds of an alleged violation of his right to trial within a reasonable time guaranteed by s. 11(b) of the Charter of Rights and Freedoms. The analytical framework for this application is of course established by the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27. The onus is on the Crown to demonstrate that the time to completion of this trial outside of the presumptive 30 month ceiling is constitutionally reasonable.

[2] There is no issue taken by either side with the reasonableness of the actions of the other along the procedural road this case has taken. To the contrary, every indication I have been able to gather from the record is that this case has gone through its procedural paces efficiently with a high degree of communication and cooperation displayed by counsel on both sides – to the credit of both.

[3] For the reasons that follow, I am dismissing this application. I find that the Crown has discharged its onus of establishing the exceptional circumstance of Covid delayed the preliminary inquiry in this case by at least 90 days and that there was also defence delay – albeit through no fault of the defence – of a further 84 days due to defence unavailability when the originally assigned trial date could not proceed and a new trial date had to be secured. Either of these findings are sufficient to dispose of this application. Nothing in this case betrays any risk of the resurrection of the type of culture of complacency that Jordan was designed to root out.

Factual background

[4] The applicant’s two week trial before judge and jury was scheduled for September 25, 2023 – 27 months and 18 days following his arrest. The trial was not reached due to constraints of the court itself – there was no judge available to hear it on the appointed day nor could one be found in the days immediately following.

[5] Scheduled trials not being reached is unfortunately something that happens with greater frequency these days because the Superior Court continues to struggle to digest the backlog of jury trials that were postponed or delayed during the lockdowns of 2020 and 2021-2022 along with an increasing load of new cases. The result is that trials are scheduled months in advance at estimated full capacity but assuming a predictably unpredictable number of cases that will resolve or be postponed for a variety of reasons including illness of counsel, a judge or key witness, or another case lasting longer than its original estimate and removing a judge, courtroom or lawyer from being able to start another previously scheduled case. In simple terms, to increase capacity, the court schedules more trials than it has judges or courtrooms available several months in advance based on best estimates of how many cases will actually proceed on a given date in the future.

[6] Our court has been juggling these issues for some time, often asking judges to move a vacation week or a scheduled writing week to accommodate the unexpected. It seems likely in this case that the religious holidays that occurred during the time originally scheduled for this trial likely limited some of the capacity of the court to shuffle the deck sufficiently to avoid postponing this particular trial.

[7] Once it was clear that the trial could not proceed on its scheduled date, the court and the parties immediately began to seek the earliest possible options to reschedule and mitigate. Over the following two weeks, numerous dates were offered to the defence by the Crown and the trial coordinator. The parties came to agreements that simplified the trial somewhat and reduced its estimated length.

[8] The following dates for trial were offered to the defence:

a. November 14, 2023;

b. November 20, 2023;

c. December 4, 2023;

d. December 11, 2023; and

e. Any two weeks in January 2024

It should be noted that the latter two offered trial options would have resulted in an estimated trial completion date outside of the Jordan date which was December 19, 2023.

[9] The defence counsel had prior commitments for trials for all of these time frames. While there was some possibility one of those other trials might have resolved, this could not be confirmed in the time available. I emphasize these points to make clear that there is no suggestion that the inability of defence counsel to accept those earlier dates was in any way unreasonable. It was not.

[10] After approximately two weeks of discussions between the Crown, trial coordinator’s office and defence counsel, a rescheduled trial date of March 11, 2024 was secured and accepted. On December 1, 2023 an earlier trial date of February 12, 2024 came open and, as it turned out, both sides were able to take advantage of this circumstance and the trial was rescheduled to that earlier date. The trial is now scheduled for seven sitting days beginning February 12, 2024.

[11] As a result of this rescheduling, the trial is expected to be completed just over 2 months beyond the presumptive 30 month time for completing Superior Court trials stipulated by Jordan.

Issues raised

[12] This application raises two narrow questions about which there are effectively no facts in dispute. The Crown bears the onus on both. These issues are:

a. What delay if any can be attributed to the discrete exceptional circumstance of Covid?

b. What delay if any can be characterized as defence delay following the missed trial date?

Analysis and discussion

[13] Both parties concur that there is no question of any inappropriate or dilatory defence actions. The defence rightly points out that it has said “yes” to every date offered along the procedural way prior to the missed trial date. This is not a particularly complex matter. In short, when the defence asked me the question in argument “what could Mr. Martins have done to have this case heard within the thirty month Jordan window?” the only answer that appears to me to be a fair one is “nothing”.

[14] I shall accordingly review the two issues raised to see whether alone or in combination they provide a basis to justify the greater than thirty month delay to trial completion in this case.

(a) Covid Exceptional Circumstance in OCJ

[15] This case moved through the Ontario Court of Justice within the eighteen month window provided for in Jordan. Mr. Martins was arrested on June 19, 2021. A judicial pre-trial was scheduled and held on December 6, 2021 at which time a three-day preliminary inquiry time estimate was approved. The parties accepted the first date offered by the trial coordinator for the preliminary inquiry being November 20, 2022. Mr. Martins was committed to stand trial at the close of that hearing on November 23, 2022. A Superior Court judicial pre-trial was held on January 12, 2023 which resulted in an approved trial time estimate of two weeks (since reduced to seven days) after which the September 25, 2023 Superior Court trial date was swiftly obtained and confirmed. On that original track, this case would have been completed within the thirty month time Jordan time frame and this application would not have been brought.

[16] Neither party takes any particular issue with the intake time prior to the initial judicial pre-trial at the OCJ and I shall accordingly not delve into the minutiae of that phase of the proceeding. The total time in OCJ was just a few days over seventeen months with the gap from seeking a preliminary inquiry date and the hearing date confirmed being just over eleven months.

[17] Even with the rescheduled trial date, total time in Superior Court from initial JPT to completion of trial will have been about 13 months. I can state without fear of contradiction that Covid backlogs have not played any measurable role in the path this case has taken through Superior Court at least. To the contrary, this trial seems to have had an extraordinary bit of luck in being scheduled for such an early trial date – less than ten months after the initial judicial pre-trial - doubtless due to an unexpected opening in the trial calendar that both counsel were able to take advantage of.

[18] Was the progress of this case impacted by Covid?

[19] Most of the larger and more obvious lockdown-related impacts of the Covid pandemic had been adressed by June 2021 when Mr. Martins came into the court system. While further lockdowns and further court closures remained on the horizon (and in fact occurred in December 2021), by mid-2021 most of the kinks had been ironed out of the adaptation plans that had been rolled out to cope with this emergency. Procedures to accommodate virtual hearings – both for JPT’s and preliminary inquiries - were well established and well understood. Crown and police offices were open sufficiently to permit disclosure to take place in a reasonably timely way. The trial coordinator’s office was open and able to respond to requests for dates.

[20] However smoothly the adaptation procedures were running – and all indications are that they were running quite smoothly by and large in the OCJ by the Fall of 2021 – there is one thing that only time could cure and that is backlogs.

[21] The Court of Appeal recognized the distinct impact of unresolved backlogs in the overall matrix of delay in R. v. Agpoon, 2023 ONCA 449 at para. 32-34. By December 2021 when the preliminary inquiry for this matter was being scheduled, nearly a year of postponed trials and hearings were still in the process of being slotted into the court’s calendar alongside new cases. The Chief Justice of the OCJ noted in September 2021 that an extra 60,000 cases had been added to the backlog of the court. Henschel J. has prepared a very informative breakdown of the various court closure dates affecting the OCJ in R. v. Korovchenko, 2022 ONCJ 388.

[22] There can be no question that there was some additional delay in terms of the earliest date available for the holding of a preliminary inquiry. The only question is how much. As noted, the preliminary inquiry hearing was scheduled in December 2021 to be held in late November 2022 – a time out of just over 11 months.

[23] In R. v. Korovchenko, the court reviewed the impact of Covid upon the OCJ in Central East for a very similar time frame to the one under consideration here – September 29, 2021 through September 9, 2022. In that case, the court found that the 11.5 month delay in scheduling a trial date for a “simple two-day drinking and driving case” had been extended by a minimum of three months because of the pandemic, an estimate which Henschel J. found to be both reasonable and modest (at para. 105). A similar conclusion was reached by R. Wright J. in R. v. G.S., 2023 ONCJ 427 (at para. 63) in a case involving a similar delay in obtaining a short trial date in OCJ Scarborough. I would consider Scarborough and Central East to be reasonably comparable jurisdictions to Toronto. Leitch J. also came to a similar conclusion that 90 days of Covid delay could reasonably be attributed to the backlog in Hamilton in R. v. Ivarone, 2023 ONCJ 69 (at para. 15).

[24] In my view, the attribution of a 90 day delay as a Covid exceptional circumstance is fully justified in this case. The delay between seeking a preliminary inquiry date and the holding of the hearing was clearly longer in this case than would have been the case prior to the Covid emergency. That delay chewed through what would otherwise have been a buffer available to deal with the unforeseen delay that emerged in this case when a judge was unavailable for the assigned trial date.

[25] I find that the Crown has discharged its onus of demonstrating the exceptional circumstance of Covid delay of 90 days in this case.

(b) Defence delay post September 2023

[26] The Crown also seeks to attribute the delay between the offered trial dates that the defence was unable to accept and the accepted trial date of February 12, 2024 as defence delay. In so doing, the Crown relies upon Jordan where the court described as a second type of defence delay “if the court and the Crown are ready to proceed, but the defence is not” (at para. 64). Using the second offered but not accepted trial date of November 20, 2023 compared to the accepted February 12, 2024 date, the defence delay on this theory would be 84 days.

[27] In my view the Crown is entitled to prevail on this theory as well. This case would appear to be on all fours with R. v. Albinowski, 2018 ONCA 1084 and its result is dispositive.

[28] In Albinowski the court was required to address the apparent conflict between para. 23 of the Supreme Court’s decision in R. v. Godin, 2009 SCC 26, [2009] 2 SCR 3[^1] and para. 64 of Jordan quoted above. In Jordan, the unavailability of defence counsel was described as a second type of un-waived defence delay (the first type being defence actions that “are shown to be a deliberate and calculated tactic employed to delay the trial”).

[29] In Albinowski, the Court of Appeal found that defence unavailability when offered multiple dates even when due solely to previously scheduled professional engagements (i.e. no fault of the defence) “fell squarely within the category of delay that counts against the defence” (Albinowski at para. 33). That is precisely the case here.

[30] Characterizing the delay here as defence delay is not a qualitative assessment or judgment of the reasonableness of defence counsel. It is a simple recognition that in the framework of the bright line test Jordan created, matters that are outside the control of the state (broadly construed) ought not to trigger constitutional sanction as “unreasonable” state behaviour.

[31] Categorizing defence unavailability as defence delay under the Jordan framework is by no means the end of the inquiry. In some cases, there may be a basis to apportion the resulting delay between the defence and the Crown[^2]. That is not the case here. The unexpected failure of the trial to go forward on September 25 was an unexpected discrete event that required mitigation steps to be taken swiftly. The Crown and the Court clearly undertook mitigation promptly and effectively. Multiple dates were offered – the first three of them would have brought the trial to a conclusion before the Jordan deadline, the latter ones would have been somewhat over but certainly faster than the trial date ultimately selected. This was not a case where the Crown rejected some dates available to defence but not the Crown. The court offered a menu of options - admittedly on short notice – and the Crown was prepared to accommodate all of them. I attribute no fault whatsoever to the defence for not having a miraculously open calendar on short notice. Indeed, the March 2024 trial date first obtained was swiftly exchanged for a February date when the court calendar unexpectedly opened up that option.

[32] I see no reason to address the role of the shortage of judges and the recent decision in R. v. Alli, 2023 ONSC 5829 on this matter in much detail. Alli was a case where the defence sought to argue for a Jordan deadline of less than 30 months after the case languished in Superior Court for more than 22 months and the defence met its onus of establishing demonstrable efforts to expedite the hearing. This case will have spent only about half the time Alli spent in Superior Court.

[33] It is true that this court is coping with a higher volume of serious criminal cases than prior to the pandemic and it is doing so in circumstances where there is a significant number of unfilled vacancies on the bench. However, the number of judicial vacancies (six as of today) is broadly similar to what we were facing prior to the pandemic in early 2020 and the allocation of judges to the criminal section has increased in that time frame. Running the trial scheduling engine “hotter” than it was formerly run has increased the number of cases we can handle and helped to chip away at the backlog of jury trials but this comes at a price. In this case, that price is the additional risk of a higher number of trials that fail to get reached. Had our coordinators scheduled more conservatively when this case was initially scheduled for trial, there may have been less of a risk of the unexpected gap between resources and trials that happened on September 25 but there would have been a correspondingly lesser chance that a date as early as September 25 would have been available in the first place.

[34] I find that the Crown has discharged its onus of establishing 84 days of defence delay in this case – delay which I hasten to add is attributable to the defence without being the fault of the defence.

Disposition

[35] For the foregoing reasons, I find that Mr. Martin’s rights to trial within a reasonable time under s. 11(b) of the Charter will not be breached by his trial starting on its scheduled start date of February 12, 2024 and this application is accordingly dismissed. I do not wish to finish these reasons without congratulating both counsel on a very well presented and focused hearing. Both the written and oral arguments were comprehensive and helpful.

S.F. Dunphy J.

Date: January 5, 2024

[^1]: "scheduling requires reasonable availability and reasonable cooperation; it does not, for for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability": Godin, para. 23

[^2]: See for example R. v. Boulanger, 2022 SCC 2 or R. v. Hanan, 2023 SCC 12.