Section 11(b) - Trial in a Reasonable Time (COVID-19 Delay)

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Date Retrieved:	2024-04-25
CLNP Page ID:	1877
Page Categories:	[Constitutional Law], [Provincial Offenses]
Citation:	Section 11(b) - Trial in a Reasonable Time (COVID-19 Delay), CLNP 1877, <>, retrieved on 2024-04-25
Editor:	Sharvey
Last Updated:	2023/05/25

R. v. L.L., 2023 ONCA 52 (CanLII)

[20] On the second ground, the appellant submits that the application judge erred in finding that the pandemic had no role to play in the delay in securing trial dates. As already noted, we dismiss the Crown’s application to adduce statistical evidence on appeal.

[21] At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the “trickle down” effect of the pandemic on trial scheduling. The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case.

[22] The application judge gave careful consideration to this issue. She noted:

Nobody doubts the pandemic has wreaked havoc on the criminal justice system. At College Park many trials had to be adjourned only to be re-scheduled.

However, this is not one of those cases. The case entered the justice system when courts had re-opened. The realities of the pandemic were very clear. Trial coordination was evolving and coping.

. . .

In all of the circumstances I am of the view the pandemic played no role in the delay of setting this case down for trial. [Emphasis added.]

[23] In the absence of evidence suggesting otherwise, there is no basis on which to disturb this finding. The application judge did not err in refusing to find that the impact of the pandemic was an exceptional circumstance as understood in Jordan. We dismiss this ground of appeal.

Conclusion

[24] The appeal is dismissed.

R. v. Kaur, 2021 ONSC 7519 (CanLII)

[39] There is no doubt that the pandemic created an existential crisis in the justice system that fundamentally altered the manner in which the court’s business is conducted. The spectre of closed or retrofitted courtrooms, zoom hearings, sombre accounts of cases of infections in court buildings, and proactive steps to reduce the risk of infection have collectively haunted the judicial landscape since March 2020. Additionally, the Ontario Court of Justice shut down on March 16, 2020, reopened in a limited capacity on July 6, 2020, and resumed full capacity in November. Thus, although the trial date in this case was set prior to the onset of the pandemic, the deleterious effects of the pandemic would have rendered any attempt to obtain an earlier trial date a futile exercise.

[40] That said, Jordan requires that it is only where the discrete exceptional event caused the period of delay that the delay must be subtracted from the total period of delay “for the purpose of determining whether the ceiling has been exceeded”: para. 75. The court in R. v. Schardt, 2021 ONSC 3143, at para. 68, similarly noted that:

[I]t is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling.

[41] In my view, the Covid-19 pandemic, if considered a discrete event, did not cause the delay in this case. To that extent, the trial judge did not err in failing to consider the pandemic as an exceptional circumstance that has relaxed the Jordan ceiling.

R. v. Ottewell, 2020 ONCJ 623 (CanLII)

(Page 32)

...

I will state for greater clarity, I would be prepared to include the whole period from March 12, 2020 to January 2021 as a discrete event if the matter had been completely ready to have a trial date set and only the COVID-19 pandemic court closure prevented setting trial dates.

...

Toronto (City) v. Yaqoobi, 2021 ONCJ 532 (CanLII)

[41] It is my view on this record that the court administration and prosecution could not have reasonably done more during this period to mitigate delay—this is especially so as the Applicant has provided no evidentiary basis to support the inaction alleged and/or that a different and more efficient re-opening schedule could have or should have been devised and followed amid a public health crisis which created such a vast and regenerating backlog of cases. Therefore, I find on the facts of this case, the evidence presented and the recent jurisprudence on this very issue, the delay from the original trial date of May 19, 2020 to the new trial date October 5, 2021 was as a result of COVID-19 pandemic re-scheduling and should not be visited upon the prosecution. The said period is 16 months and 18 days, which constitutes an exceptional discreet circumstance and shall be deducted from the net delay.

[42] As said, the total and net delay in this case, from the date of the HTA charge to the anticipated end of the trial date is a period of 27 months and 12 days (834 days). Upon deducting 16 months and 18 days as delay caused by the exceptional discrete event, the remaining delay is approximately 11 months and is well below the presumptive 18-month ceiling as set out in Jordan.

Toronto (City) v. Soudine, 2021 ONCJ 497 (CanLII)

[20] I am of the view that as COVID-19 is still on-going, as we are currently facing our fourth wave in the pandemic, particular notice and proper analysis should be given to each individual court, highlighting their capabilities to function within the pandemic, aligned with the technical and staffing resources needed to conduct hearings within a remote forum. Once the official public notice[6] was given to counsel and paralegals that Provincial Offence trials would commence by way of video-conferencing, the clear and most effective date to consider is when the local courthouse and Ontario Courts aligned to secure a reasonable date for trial. The analysis in this particular case follows that the date when Mr. Soudine’s matters were scheduled, August 4, 2021, the local courthouse and the Ontario Courts were functionally prepared to hear the trial by way of video-conferencing. It is important to note here that the trial was scheduled within 1 month and 4 days, giving strength to the Crown’s submission that it did everything possible in the circumstance to manage and prioritize the backlog of cases resulting from the on-going pandemic.

[21] Therefore, given the nature of the current impact of the COVID-19 pandemic on the courts, and the efforts made to mitigate that impact, I find that the entire period between March 30, 2020 (the first trial date) and August 4, 2021(the date when the trial was scheduled), which is a delay of 16 months and 5 days is to be an exceptional discrete event to be deducted from the Net Delay. Although the cases exceeded the 18-month presumptive ceiling, due to exceptional circumstances that took place during the COVID-19 Pandemic the delay in this matter going to trial is reasonable under all the circumstances.