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Charter - Section 11(b) - Trial Delay - COVID. R. v. Kirkopoulos
In R. v. Kirkopoulos (Ont CA, 2024) the Ontario Court of Appeal dismissed a Charter s.11(b) trial delay appeal, in part involving COVID delay:[2] A person charged with an offence has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated, the remedy is a stay of proceedings. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court set out the process for assessing delay to determine whether the right to be tried within a reasonable time was violated.
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THE LEGAL PRINCIPLES AND THE APPLICATION JUDGE’S REASONS
[20] In order to determine whether the s. 11(b) right has been infringed, the total time from the laying of charges to the actual or anticipated end of trial must first be calculated. The reasons for delay are then considered.
[21] Delay attributable to the defence is subtracted from the total delay, which results in the net delay: Jordan, at para. 66; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35. The net delay is then compared to the presumptive ceiling: Coulter, at para. 36.
[22] A net delay that exceeds the ceiling is presumptively unreasonable: Jordan, at para. 68; Coulter, at para. 37. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68; Coulter, at para. 37. Institutional delay, by contrast, results from the lack of institutional resources such as the inability of courts to hear proceedings. Such delays are not subtracted from the overall delay: Jordan, at para. 81.
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[29] “Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69.
[30] Exceptional circumstances include discrete events and particularly complex cases: Jordan, at para. 71. The COVID-19 pandemic, which affected Ontario courts for extended periods starting on March 17, 2020, has been held to be a compelling example of an exceptional circumstance: see e.g., R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at paras. 4, 19, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon).
[31] If the Jordan ceiling is breached, however, the Crown must show that it took reasonable steps to avoid and address potential delay. It need not prove that the steps taken were successful or that it “exhaust[ed] every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 54; Jordan, at para. 70.
[32] Delay caused by exceptional circumstances is subtracted from the total delay minus defence delay to determine the remaining delay: see Jordan, at para. 75; Coulter, at paras. 34-38.
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(4) Institutional Delay
[36] The application judge addressed the remaining 8-month period of delay in dispute (between May 2022 and January 2023) and the difficulty of calculating delay caused by the pandemic. He noted that:In R. v. Robinson, 2021 ONSC 2445 at para. 102, Akhtar J. recognized the difficulty in calculating the delay caused by the COVID-19 pandemic in addressing s. 11(b) of the Charter:It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months is a more specific time period, it cannot be disputed that there was a "knock on" effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice. I agree with Ahktar J.’s overall assessment. The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances. ....
[42] Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewed on a standard of correctness. However, deference is owed to a trial judge’s underlying findings of fact: R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 30; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.
[43] In R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, at para. 21, this court specifically noted that the application judge had “knowledge of the culture at the court location where she sits” and held that there was no error in the application judge’s conclusion that the pandemic had no impact on the scheduling of that particular case. Similarly, in R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, at para. 54, leave to appeal refused, [2024] S.C.C.A. No. 41, this court held that “[t]he trial judge was in the best position to evaluate the reasonableness of the steps that the Crown took to ameliorate delay in this case.” In restoring the trial judge’s decision this court held that the summary conviction appeal judge erred by failing to defer to the factual findings of the trial judge who “correctly stepped back and took a bird’s-eye view of the surrounding circumstances of this case” and “properly employed his expertise and local knowledge of his jurisdiction”: Coates, at para. 72.
[44] In Agpoon, at paras. 33 and 34, and in Coates, at para. 59, this court noted that where access to the courts has been limited by disruptions to the operation of criminal courts in Ontario caused by the pandemic, the attributable delays will generally be treated as discrete exceptional circumstances.
[45] However, there is no rule that all periods of delay during the COVID-19 pandemic, including those resulting from scheduling backlogs, should be attributed to exceptional circumstances. Even in the case of pandemic-related delay, the Crown must “make reasonable efforts to mitigate the delay resulting from COVID-19" and delay that could reasonably have been mitigated “may not be subtracted": Coates, at para. 42; Jordan, at para. 75.
[46] This is so because as stated in Jordan, at para. 75:[T]he Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Citation omitted.] [47] In Agpoon, this court determined that a trial judge erred by failing to attribute 14 months of delay to exceptional circumstances where the preliminary hearing was cancelled due to the COVID-19 pandemic. The 14-month period represented the period between March 17, 2020, the date all Ontario courts first closed, and May 19, 2021, the date on which the direct indictment was preferred. The court did not hold however that all periods of delay during the COVID-19 pandemic be necessarily attributed to exceptional circumstances. . 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.
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IV. ANALYSIS
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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