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Charter - Section 11(b) - Trial Delay - COVID

. R. v. Coates

In R. v. Coates (Ont CA, 2023) the Court of Appeal considered the interaction of the COVID pandemic on trial delay under Charter s.11(b), here in a successful Crown appeal from a summary court appeal judge's (SCAJ) order:
[5] The trial judge was the local administrative judge for the Newmarket courthouse, and during the hearing demonstrated awareness of the relevant factors to consider in assessing whether the Crown acted reasonably. He concluded that it was reasonable for the Crown to prefer the earliest available consecutive dates for a two-day trial, even though earlier non-consecutive dates might have been available. The trial judge’s concerns about fair trial rights, the orderly conduct of proceedings, and the risk of losing the thread of proceedings over non-consecutive days amply justified his finding. Jordan only requires the Crown to take reasonable steps to ameliorate delay from an exceptional circumstance, not all possible steps. In this case, against the backdrop of the exceptional backlog caused by pandemic court closures, the trial judge was entitled to find that the Crown met the reasonableness standard.

[6] This court’s recent jurisprudence on trial delays arising from COVID-19 amply demonstrates the importance of deferring to trial judges’ expertise on local circumstances and practices: R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, at paras. 20-23; R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal to S.C.C. requested, 41002 and 41003. The SCAJ did not have the benefit of these cases, which counsel the opposite outcome to what she ordered in this case. The SCAJ should not have interfered with the trial judge’s conclusion in the absence of any palpable and overriding error.



A. The Need to Defer to Trial Judges’ Local Expertise

[37] To begin, it will be useful to consider this court’s most recent guidance on the interaction between s. 11(b) and the COVID-19 pandemic exceptional circumstance.

[38] In the past year, this court has issued multiple judgments that are relevant to this appeal. Both the trial judge and the SCAJ issued their decisions below without the benefit of these judgments.

[39] First, in L.L., the Crown appealed from a stay of proceedings for excessive delay. The charges in this case were for sexual assaults, allegedly occurring within an intimate relationship. The Crown submitted that the application judge erred in finding that the pandemic played no role in the delay in securing trial dates. This court rejected the appeal, preferring to defer to the application judge’s “knowledge of the culture at the court location where she sits:” at paras. 21-23.

[40] The prosecution in L.L., from the laying of charges to the final disposition, took place entirely during the pandemic. Nevertheless, this court was willing to defer to the application judge’s assessment that no delay was attributable to pandemic given their localized knowledge of trial administration.

[41] Agpoon was a Crown appeal against a stay of proceedings entered for three persons charged with serious human trafficking and firearms charges. The trial judge found that each of the accuseds’ s. 11(b) rights had been violated. This court stood back and took a bird’s-eye view to assessing the pandemic as an exceptional circumstance. The panel outlined a framework for assessing the reasonableness of delay emanating from the pandemic, which was designed to be simple to apply and respectful of local knowledge.

[42] Agpoon confirmed that the pandemic falls within a category of “discrete exceptional circumstances” as defined in Jordan. However, the Crown is still obligated to make reasonable efforts to mitigate the delay resulting from COVID-19.

[43] Agpoon made clear that trial courts have substantial leeway in determining how to respond to the COVID-19 pandemic and that “it is not open to the defence to second-guess the policy decisions made that limited access to courts:” at para. 34. This court further recognized that the Crown and justice system are entitled to prioritize cases when clearing the backlog caused by the pandemic.

[44] Cumulatively, this court’s recent jurisprudence supports the Crown’s position on this appeal that trial judges – equipped with on-the-ground local expertise on the needs, practices, and culture of their own courts – have significant discretion on how best to respond to an exceptional circumstance.[3]

[45] Furthermore, in responding to the exceptional circumstance of a backlog of cases that have resulted because of the pandemic, trial judges must remain cognizant of this court and the Supreme Court’s guidance that reasonableness under s. 11(b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources:” R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 92 O.A.C. 345 (C.A.), at para. 27, aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 61. An analysis of the reasonableness of the Crown’s actions in any one case inherently requires a consideration of the broader context of the functioning of the court system, especially in an exceptional circumstance.

[46] To that end, the Crown need not tender evidence to prove that it took all available steps to expedite any given trial delayed by the pandemic – it must simply show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. The Crown does not have to show that the steps it took were successful, only that it reasonably attempted to avoid the delay. Jordan also makes clear that a trial judge’s sense of local conditions, based on the judge’s good sense and experience, can suffice to ground a finding of reasonableness: at paras. 70-74.


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Last modified: 05-01-24
By: admin