COURT FILE NO.: CR-22-10000121-0000 DATE: 20240415
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MARLON DOWNEY Applicant
P. Leishman for the Crown M. Anevich and C. Angelini for Marlon Downey
HEARD at Toronto: April 4th, 2024
J. K. Penman J.
Overview
[1] On November 25, 2020, Marlon Downey was charged with a series of human trafficking charges in relation to one complainant. On the same day he was arrested for a separate set of similar offences. That case has since been stayed for delay although I understand that decision is currently under appeal. Mr. Downey has been in custody since his arrest.
[2] Mr. Downey’s first appearance in provincial court was on November 26, 2020. Mr. Downey’s first trial was scheduled to take place June 19, 2023, but could not be reached because a judge was not available. His trial is now currently scheduled to take place April 22, 2024, through May 3, 2024, a delay of 41 months and 8 days.
[3] As this period exceeds the 30-month ceiling for trials in the Superior Court established in R. v. Jordan, 2016 SCC 27, Mr. Downey now applies to have the proceedings stayed on the basis that his s. 11(b) Charter right to a trial within a reasonable time has been infringed.
[4] The defence position is that the main reason for delay is a lack of judicial resources. Delays in providing disclosure and securing a direct indictment also contributed. They argue that the Covid-19 pandemic cannot account for the delay as the system had since adapted to the ‘new normal’ post covid. Nor were there any delays caused by adjournments due to covid related court closures or jury blackout periods.
[5] The Crown opposes the application and submits that the delay is under the 30-month ceiling. As per Jordan, they argue that the periods of delay are largely due to a ‘discrete exceptional circumstance’, namely the pandemic and should not be counted within the 30-month time frame. The Crown points out that Mr. Downey chose trial by judge and jury and that the jury blackout period was in place resulting in his case not being scheduled. Second, the COVID-19 pandemic created scheduling challenges. Finally, there is a period of defence delay related to counsel’s unavailability when rescheduling the trial dates.
[6] On April 8th I advised counsel that I was granting the defence application. These are my reasons.
Appearances in Provincial Court
[7] Mr. Downey made his first appearance in provincial court on November 26, 2020. It was not until early of April 2021 that disclosure was provided. On May 11, 2021, a judicial pre-trial was held and on June 1, 2021, the parties met with the trial coordinator to set two days for the preliminary hearing.
[8] The earliest date available to the court was in August of 2021, but the Crown was unavailable for the entire month. Dates were available in September for the court and the Crown but the defence was not available. The Crown was not available after that from October 2021 until March of 2022. March 7th and 8th, 2022 were selected for the preliminary hearing.
[9] Efforts were made by the defence to secure earlier dates given Mr. Downey was in custody, including trying to arrange a judicial pre-trial. The Crown’s first availability for a pre-trial was six weeks later. The defence then had the matter brought before a judge on June 15th, 2021. The assigned Crown did not attend, and the matter then came back on July 14th, 2021, and the issues were discussed. Between this appearance and July 27th, 2021, the Crown decided to seek a direct indictment.
Appearances in Superior Court
[10] The matter appeared for the first time in Superior Court in February of 2022.
[11] On April 1, 2022, a JPT was held, and it was agreed the trial would take ten days with five days of pre-trial motions. Those motions were to be vacated on agreement of counsel if they were heard earlier in Mr. Downey’s other matter.
[12] Dates were set with the trial coordinator on April 20, 2022. The pre-trial motions were set for October 30th, 2023, for five days, and the trial proper for December 11, 2023, for two weeks. The assigned Crown and court were available July 4th for the motions and August 22nd for the trial dates. The Crown was available July 4th – September 16th, November 7th-31st. Defence counsel was not available until December 5th, 2022.
[13] When the matter appeared in court on April 25th, 2022, Mr. Angelini indicated that when he had filled out the trial confirmation form, he had done so assuming the motions and trial would be set as one three-week block, and that had he provided dates for a five day and then two-week block, his dates might have been earlier. He indicated he would redo the form with his availability adjusted accordingly. The matter was then put to May 16th, 2022, to see about earlier dates.
[14] The matter returned on May 16th, May 30th and then June 6th, 2022, to see if there were earlier dates. In August of 2022 earlier dates were obtained. The dates of February 6-10, 2023, for the pre-trial motions, and June 19th, 2023, for the trial proper was put on the record on September 12, 2022.
[15] The pretrial motions were ultimately dealt with during Mr. Downey’s other matter, and on January 16th the matter was adjourned directly to the trial date of June 19th, 2023.
[16] On June 19th, 2023, the matter appeared before Justice Goldstein who indicated there was not a judge available but adjourned the matter one day in the hopes that one would become available. It is worthy of note that at this point the matter was already over the prescribed Jordan time limit at 30 months and 24 days.
[17] On June 20th, 2023, the matter appeared again before Justice Goldstein who indicated:
Well, the bottom line is, unfortunately we're not going to be in a position to proceed with this trial. I don't have a trial judge for you, unfortunately. So we have – I mean, there's a whole bunch of reasons for that. We have outstanding appointments, vacancies here, but also we still have a hangover from COVID as I think, I think you both know, which is causing – we're trying to get as many things on as we can, but of course the COVID backlog is still there. So I'm going to say, approach your administrative Crown for a new trial date and maybe just put this into practice court next week.
[18] On June 23rd, the Crown contacted Mr. Angelini and offered a trial date of July 10th, just over two weeks later. Mr. Angelini was not available. The matter then appeared again on July 17th, August 14th, August 28th, and September 11th with the parties indicating that efforts were being made to secure dates as quickly as possible.
[19] The parties then appeared before Justice Forestell on September 28th, 2023. A trial date of November 14th was offered and available to both the court and the Crown. Mr. Angelini indicated that date had just been offered to him the day before and he was not available. December 4th was also offered but both the Crown and Mr. Angelini indicated they might be able to accommodate the date but were in other matters. January 8th was offered as a ‘possibility’ if another four-week matter were to resolve. The Crown inquired if January 22nd was available instead. Mr. Angelini indicated he was not available as he had another Superior Court trial. February 19th was offered, but Mr. Angelini was not available. April 2nd was offered but the Crown was not available. April 22nd, 2024, was the date ultimately agreed upon by all parties.
Legal Framework
[20] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the R. v. Jordan framework: calculating the total delay, subtracting any defence delay in determining net delay.: see paras 47, 61-64. The court must then consider any exceptional circumstances including any discrete exceptional circumstances.: see para 69 and 75.
[21] Defence delay for the purposes of this analysis consists of two types of delay. First delay that is waived by the defence. That is not an issue in this case. Second, delay “that is caused solely or directly by the defence’s conduct”.: Jordan para 66. This does not include legitimate actions taken by the defence to respond to the charges.: see para 64-65. I would include in this second category the election by the accused to have their matter tried by a judge and jury.
[22] Recent caselaw has modified the notion of a ‘bright line’ rule in assessing defence delay. R. v. Boulanger, 2022 SCC 2 at para 8 makes clear that all relevant circumstances should be considered to determine how delay should be apportioned among the participants. This approach has been followed in several cases.: R. v. Hanan, 2023 SCC 12 at para 9, 54-56; R. v. Albinowski, 2018 ONCA 1084 at para 46; R. v. Zahor, 2022 ONCA 449 at para 101-102; R. v. Bowen-Wright, 2024 ONSC 293 at para 38-39.
[23] Exceptional circumstances include events beyond the Crown’s control in that they are reasonably unforeseen or unavoidable, and result in delay that cannot reasonably be remedied by the Crown.: Jordan para 69. Discrete exceptional circumstances are unexpected, uncontrolled events that happen which lead to delay. These engage a quantitative analysis in that the delay is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling.: Jordan para 75.
[24] The pandemic falls within a category of “discrete exceptional circumstance” as defined in Jordan. It satisfies the criteria of i) being reasonably unforeseen and ii) Crown counsel cannot reasonably remedy the delay emanating from these circumstances. Given the systemic perspective within which the pandemic must be seen, “the reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.”: Jordan para 103; R. v. Agpoon, 2023 ONCA 449 at para 19, 21.
[25] It is within this framework that “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; Agpoon para 22.
Overall Delay Analysis
[26] There are two main questions in this application. First, how much delay should be attributed to pandemic related delay, specifically in this case jury blackout delay and general court scheduling/backlog delay indirectly related to covid. Second, how much defence delay was there in scheduling the trial dates and how to apportion any ‘resulting defence delay’ when the first trial date could not proceed due to judicial unavailability.
i) Court Closures
[27] The Crown argued that 13 days should be deducted for court closures from November 25th, 2020, to December 8th, 2020. The difficulty with this argument is that the courts were not closed at this point and Mr. Downey’s matter was clearly at the intake stage in any event. Disclosure was not provided until April of 2021.
[28] I pause here to note that, in this case, there appeared to have been no trickle-down effect relating to the COVID-19 closures and dates being set while this matter was in the provincial court. When preliminary hearing dates were being set on June 1, 2021, the first dates that were offered were on August 18 and 19th, 2021, just over two months away. The Crown was not available for those dates.
[29] I agree with counsel for Mr. Downey that if anything, the delay in provincial court was because of slow disclosure roll out, the Crown being unavailable for many of the preliminary hearing dates, and the Crown’s decision to then seek a direct indictment.
[30] The 13 days for court closures as argued by the Crown will not be deducted from the overall delay.
ii) Jury Blackout Delay
[31] The Crown argues that 3 months and 21 days should be deducted from the overall delay during the time frames of May 11, 2021, to September 2021 given the jury blackout that was in place. In fairness to the Crown there was an additional moratorium on new jury selections from December 7th, 2021, until February 28th, 2022.: see Agpoon.
[32] I am unable to find that there was any delay that should be attributed to the jury blackout period specifically. This matter was not even in the Superior Court ready to set a date until after the blackout period was over, and notwithstanding the pandemic backlog issues, this matter was eventually scheduled to proceed within a reasonable time.
[33] The Crown argued that the issue of the jury blackout periods was evident throughout the lifespan of this file point to the adjournment of the trial on June 19th and 20th, 2023. They argued it was clear from Justice Goldstein’s comments that the matter could be reached on the priority list if it remained a jury trial.
[34] The difficulty with this argument is twofold. First, an accused person is entitled to elect to have their matter tried before a judge and jury, and this fact cannot be used against them in assessing delay. Secondly, Justice Goldstein said nothing about the matter not being reached because it was proceeding with a jury. It is clear when looking at Justice Goldstein’s comments that the matter could not be reached because a judge was not available in combination with covid created backlog.
[35] While I do not accept the argument about specific jury blackout delay, I am satisfied that there was delay attributable to general covid backlog in setting the first trial date. Mr. Downey appeared for the first time in Superior Court, February 17th of 2022. His first trial was eventually scheduled to proceed June 19th, 2023, some 487 days or 16 months later. While not entirely out of the range for this jurisdiction, it is at the longer end particularly for what I understand is a straightforward case.
[36] In the circumstances I will deduct 3 months for ‘covid backlog’ delay.
iii) Defence Delay in Setting the First Trial Date
[37] The Crown also argues that there should be defence delay when counsel was not available from July 4th until December 5th, 2022, when the first trial dates were being set.
[38] It was conceded by counsel for Mr. Downey that some of the delay in setting this first trial date should be attributable to the defence. Specifically, the time frame from September 16th, 2022, to December 5th, 2022, a period of 2 months and 20 days or 80 days. This is a fair concession and a reasonable one taking into account the defence efforts to secure earlier dates.
[39] I would apportion 2 months and 20 days (80 days) to defence delay.
iv) Setting of the 2nd Trial Date
[40] The Crown argues that the period of delay from June 30, 2023, until May 3, 2024 (10 months and 3 days), should be apportioned in its entirety to covid related delay. This period accounts for the anticipated end of the original trial on June 30, 2023, to the anticipated end of the new trial on May 3, 2024. In the alternative they argue that the portion from July 10, 2023, until April 2, 2024 (8 months and 23 days), should be characterized entirely as defence delay.
[41] The Crown based this submission on Mr. Downey’s election to be tried by a jury, and the comments of Justice Goldstein that the trial could not be reached because of judicial vacancies and “covid backlog is still there”. I am not satisfied that the entire period of delay from the time of the original trial date in June of 2023 to April of 2024 should be attributed to covid related delay. The reason for the need to reschedule in this case was that there was no judge available.
[42] In R. v. Alli, 2023 ONSC 5829, which was released on December 11, 2023, Forestell J., at para 18-25 described the situation in this court between April and December of 2023 as follows:
This jurisdiction has a very high volume of serious and complex cases. The volume of cases in this jurisdiction has increased appreciably in recent years. As noted by Molloy J. in R. v. R.D., Toronto has a higher percentage of complex trials and long trials than other jurisdictions.
There are more homicide trials in Toronto than in any other jurisdiction in Canada. There are also more large 'project' cases in Toronto than in other jurisdictions. The 'project' cases can involve hundreds of accused and multiple, complex applications. The length and complexity of trials has increased with no increase in the number of judges and no increase in the number of courtrooms.
In addition, this jurisdiction continues to deal with a backlog of cases created by the suspension of jury trials for a total of approximately 11 months during periods of the COVID-19 pandemic. While the last jury suspension ended about twenty months ago, the completion of backlogged trials in addition to the normal caseload has created ongoing systemic delay.
In spite of the high volume of cases and the effects of the COVID-19 backlog however, simple trials were generally being set in 2022 within 12 months of indictments being filed. The trials were set with the expectation that the court would have a full complement of judges at the time of the trials.
In April of 2023 when this trial was not reached because there was no judge available to hear it, this jurisdiction had seven judicial vacancies. There are still seven vacancies in this jurisdiction. The number of vacancies has remained essentially unchanged for at least a year.
On May 3, 2023, 20 days after this trial was not reached because of a lack of judicial resources, Chief Justice Wagner expressed his concern about the chronic shortage of federally appointed judges. He pointed out that courts were operating with 10 to 15 per cent of their judicial positions vacant. These comments are applicable to this jurisdiction.
Had the judicial positions in Toronto been filled, this case and others would not have been delayed.
Judges of this Court are working at capacity. It is common for judges on the criminal team in Toronto to work through scheduled non-sitting weeks and even through vacation weeks to attempt to ensure that trials are heard in a timely fashion. All participants in the process have done everything possible to avoid delay. This case has taken longer than it should have because this court lacked the judicial resources to hear the case in a timely manner.
[43] I adopt those comments and note that the issue of judicial unavailability in this jurisdiction has also been discussed in Bowen-Wright, R. v. Constantino, 2024 ONSC 491 and R. v. Liu, 2024 ONSC 2022.
[44] The comments of Code J., in Liu at para 52 are also apposite:
In my view it was unacceptable for the federal government to have ignored the May 2023 written warning from the Chief Justice of Canada. This kind of stubborn institutional refusal to respond to a crisis in the justice system is inexcusable and it is “constitutionally impermissible” as the Supreme Court put it in Jordan, supra at para 117.
[45] As Schreck J: said in Bowen-Wright at para 52:
….the Crown and the justice system have a duty to mitigate delay caused by discrete events.: Jordan para 75; Cody at para 48. Regardless of how many judicial vacancies there were before the pandemic, one obvious way to reduce the backlog of cases is to make sure that judicial vacancies are filled so that trials do not get adjourned. The state failed to do this.
[46] The effect of the pandemic on the system in causing backlog has been well known and was certainly obvious in June of 2023. There was no moratorium on judicial vacancies being filled during the pandemic. There is no reason why vacancies which have existed since before the pandemic could not have been filled at a faster pace than what we have seen.
[47] This leads to the alternative argument with respect to whether the ‘resulting’ delay in scheduling the second trial should be attributed to the defence. Schreck J., in Bowen-Wright summarizes some of the more important factors to consider when assessing the kind of delay under the modern ‘contextual approach’.: see para 38-43. Consideration must be given to all the circumstances including:
a. The reason for the need to reschedule. b. The extent to which the defence was unavailable. c. The reasons for defence unavailability. d. The extent of notice given of the new available date.
[48] The extent to which the defence was unavailable, the reasons for that unavailability and the notice given are inextricably bound up in the factual circumstances of this case. After the June 19th trial was adjourned the Crown emailed Mr. Angelini on June 23rd, advising that dates beginning July 10th were available for trial, just over two weeks later. Understandably Mr. Angelini was not available.
[49] In R. v. Godin, 2009 SCC 26 at para 23, the court stated: “scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability”. It is not reasonable to expect that the defence should have been available some two weeks later. There is no delay attributable to the defence for this part of the delay.
[50] The matter then appeared again on July 17th, August 14th, August 28th, and September 11th but no dates were available. To be clear, this is not an issue of Mr. Angelini or the Crown not being available, there were simply no dates being offered. There was no explanation provided as to why no dates were being offered. I am not prepared to apportion any of the time frame between July 19th and September 28th as defence delay.
[51] When the matter appeared on September 28th, a trial date of November 14th was offered. Mr. Angelini was only advised of this date the day before and again, understandably, he was not available. Other dates were offered on December 4th, January 8th (a possible date) and January 22nd. Both Mr. Angelini and the Crown had difficulties with December 4th, given obligations with other Superior Court matters. Mr. Angelini was not available January 22nd or February 19th. Mr. Angelini also indicated that had the January 8th date been offered two weeks earlier, he would have been available.
[52] Defence counsel’s unavailability for portions of this time frame were reasonable.: see R. v. Safdar, 2021 ONCA 207. Defence counsel had made consistent efforts through the course of the entire proceedings to have the matter heard as quickly as possible. He was booked on other serious matters and was being given very little notice of new potential dates. The defence acknowledged that the time frame from January 22, 2024, until April 2nd, should be apportioned as defence delay. This is a delay of 2 months and 12 days or 72 days. This is a reasonable concession and one I agree with.
[53] As outlined above, I have not found that COVID-19 related issues were the primary reason for the delay in this case. In provincial court there was no delay caused by Covid-19 related backlog or jury blackout periods, but rather Crown delay in setting the preliminary hearing and the seeking of a direct indictment. At the time of the first trial date this matter was already over the Jordan prescribed limit of 30 months. While COVID-19 backlog may have caused some delay, the most significant contributing factor to the overall delay in this case was a systemic lack of judicial resources.: Alli para 26.
[54] Having regard to all the circumstances of this particular case, I am apportioning the delay as follows:
a. 2 months and 19 days (80 days) defence delay in setting the first trial date; b. 2 months and 12 days (72 days) defence delay in setting the second trial date; c. 3 months (90 days) of covid ‘backlog delay’;
[55] The delay as deducted amounts to 8 months (242 days), bringing the total delay in this case to 33 months and 7 days (1012 days). This clearly exceeds the 30-month ceiling as established by Jordan.
Conclusion
[56] The application is granted. There will be an order pursuant to s. 11(b) and 24(1) of the Charter staying the proceedings.
J.K. Penman J. Released: April 15, 2024
COURT FILE NO.: CR-22-10000121-0000 DATE: 20240415 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – Marlon Downey Applicant REASONS FOR JUDGMENT J. K. Penman J. Released: April 15, 2024