R. v. Pinkowski, 2021 ONCJ 35

ONTARIO COURT OF JUSTICE CITATION: R. v. Pinkowski , 2021 ONCJ 35 DATE: January 18, 2021 COURT FILE No.: 2811-998-19-21625-00 BETWEEN: HER MAJESTY THE QUEEN — AND — JORDAN PINKOWSKI Before Justice F. Javed

Section 11(

b) Charter Application Heard on January 11, 2021 Reasons on s.11(

b) Charter Application released electronically on January 18, 2021 L. Turner............................................................................................... counsel for the Crown S. Yeghoyan..................................................... counsel for Mr. Pinkowski (the Applicant) F. Javed J.: I. Introduction 1

Section 11(

b) of the Canadian Charter of Rights and Freedoms (“ Charter ”) provides that any person charged with an offence has the right to be tried within a reasonable time. In 1990, Justice Cory, writing in the Supreme Court of Canada (as he then was), said the following when explaining the purpose of the s.11(

b) Charter right in the decision of R. v. Askov : [1] “… There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty.

It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time”. 2 In 1992, the Supreme Court developed a framework for assessing what constitutes “unreasonable delay” for constitutional purposes in the decision of R. v.

Morin . [2] The Morin framework instructed courts to consider four factors and assess five causes of delay in determining if delay was unreasonable for constitutional purposes. The prejudice suffered by an accused was an important and often decisive factor in the Morin framework. For years that followed, the application of the Morin framework frustrated courts and litigants, resulting in the Supreme Court providing a new and more predictable framework in R. v. Jordan [3] in 2016. 3 Jordan was a landmark decision.

The Supreme Court ushered in a new framework and focused on net delay and whether it breached a presumptive ceiling. The prejudice suffered by a litigant was now subsumed into the presumptive ceilings. For matters in the Superior Court of Justice (“SCJ”), the presumptive ceiling is 30 months and for matters in the Ontario Court of Justice (“OCJ”), the ceiling is 18 months. If a trial exceeds a presumptive ceiling, the delay may be considered “unreasonable” for purposes of s.11(

b) of the Charter and a court may award a Charter remedy by staying (or terminating) the proceedings. 4 In February 2019, Mr. Pinkowski (the Applicant) was charged with criminal offences in relation to his ex-domestic partner. He retained defence counsel Mr. Yeghoyan and was scheduled to have his two-day trial in April 2020 which would have been a period of approximately 14.7 months and below the presumptive Jordan ceiling of 18 months for matters in the OCJ. However, in March 2020 the

province of Ontario declared a state of emergency due to the novel Coronavirus (“COVID-19”) pandemic and as a result, courts in Ontario shuttered. In response to COVID-19, the Chief Justice of the OCJ issued notices and directives to the public and implemented a phased plan for the reopening of courts. The plan was updated as the pandemic evolved and targeted November 2020 as an anticipated end date. The notices and directives instructed litigants how to move their case forward during the closure and provided timelines for re- scheduling cases. In October 2020, Mr.

Pinkowski’s trial was re-scheduled for January 2021. The overall delay rose from 14.7 to 23.7 months which is above the Jordan presumptive ceiling. 5 Mr. Yeghoyan submits the Applicant had to wait 8.8 extra months for his trial. He is frustrated and anxious to have his day in court. He says this frustration was out of his client’s control and the response of the OCJ, the Crown Attorney’s office and the trial coordinator’s office in mitigating delay was inadequate and has resulted in a violation of Mr. Pinkowski’s right to be tried within a reasonable time under s.11(

b) of the Charter . He says the court should grant an Order under s.24(1) of the Charter , staying the proceedings. 6 Mr. Yeghoyan acknowledges the COVID-19 pandemic is an exceptional circumstance but says the phased plan to reopen courtrooms as implemented by the OCJ to accommodate the Applicant’s out-of-custody trial was unreasonable. He says the court should have been ready no later than July 2020 to accommodate Mr. Pinkowski’s trial. Further, he says defence counsel did everything they could to move the case along while Crown counsel didn’t do enough which contributed to unreasonable delay.

Finally, he says the court and trial coordinator chose not to prioritize Mr. Pinkowski’s case which also contributed to unreasonable delay. Mr. Yeghoyan urges the court to find the net delay is approximately 19.7 months (23.7 months minus 4 months as a reasonable exceptional circumstance caused by the pandemic) which is presumptively unreasonable and warrants a stay of proceedings.

Alternatively, if the court concludes the net delay is below the presumptive ceiling of 18 months due to the pandemic, the defence has met their onus to prove the case took markedly longer than it should have and the circumstances warrant a stay of proceedings. 7 Crown counsel, Ms. Turner argues Mr. Pinkowski’s s.11(

b) Charter application should be dismissed because the delay occasioned by the closure of courts as a result of the COVID-19 pandemic was an unforeseen public health emergency and acts as a discrete event which was outside the Crown’s control. She argues the entire period of delay induced by the pandemic from the end of the expected trial date to the end of rescheduled trial, should count as a discrete exceptional event – a period of approximately 8.8 months. Further, the Crown took all reasonable steps in attempting to mitigate the delay by adhering to the OCJ’s plan and directives – also something out of the Crown’s control. 8 I heard Mr. Pinkowski’s s.11(

b) Charter application prior to commencing his two-day trial on January 11, 2021. I dismissed the s.11(

b) Charter application with reasons to follow. I did so to start the two-day trial to mitigate any further delay. I advised the parties I would release my ruling electronically as soon as possible. These are my reasons for dismissing the Charter application. II. The Record 9 For reasons that will be clear, the record on the s.11(

b) Charter application is somewhat fragmented as the parties elected to call no evidence on the s.11(

b) hearing. This is not meant as a criticism but rather emphasizes I was invited to make findings of fact based on a limited record. For example, I do not have the benefit of any direct evidence from the Crown Attorney’s office responding to Mr. Yeghoyan’s complaint that their office did not act with dispatch in mitigating any alleged delay. Nor did I hear any direct evidence from the trial coordinator’s office in response to the allegation that Mr. Pinkowski’s case was unreasonably prioritized. Instead, the parties agreed to argue the s.11(

b) Charter application based on reasonable inferences that flow from the record that was filed. In saying this, I am not suggesting a court needs to hear direct evidence but simply stating the obvious that each application must be decided on the record that is filed. In this case, the record included: (

i) a Notice of Application with supporting facta ; (ii) transcripts of court appearances; (iii) copies of email correspondence between Mr. Yeghoyan’s office and the Crown Attorney’s and trial coordinator’s office; and (iv) a “delay chart” prepared by Mr.

Yeghoyan’s office which included a Notice to the Profession” published by the Office of the Chief Justice on July 2, 2020 which was uploaded on the OCJ website which is available to the public online at: https://www.ontariocourts.ca/ocj/covid-19 . 10 In submissions, I raised an issue with the parties about what I perceived to be a gap in the record as the Notice to the Profession dated July 2, 2020 was updated by the Office of the Chief Justice on August 12, 2020 and appeared for public consumption on the OCJ website in the

section “Scheduling Trials and Preliminary Inquiries”. After inviting submissions on whether the updated Notice should be included for the courts’ consideration on the Charter application, the parties agreed to supplement the record with this updated Notice. As a Judge sitting in the OCJ, it is my responsibility to be up to date on all pertinent COVID-19 Notices which are published on the OCJ website. It would be unfair to decide this application on incomplete information which is relevant to the material issues and readily available to all parties. I accept Mr.

Yeghoyan’s submission the updated Notice was inadvertently left out of the materials. [4] III. The Issues 11 The issues to be explored in these reasons are as follows: (

i) How much delay can be attributed to the exceptional circumstance caused by the COVID-19 pandemic? In particular, did Crown counsel, the court and the trial coordinator’s office reasonably mitigate the delay occasioned by the COVID-19 pandemic? Is the net delay in view of what amount of delay can be attributed to an exceptional circumstance over 18 months and presumptively

unreasonable? (ii) If the net delay is below 18 months and is presumptively reasonable, has Mr. Pinkowski met his onus to establish the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have? (iii) If so, has Mr. Pinkowski met his onus to establish his case is a clear case of a Charter violation warranting a stay of proceedings under s.24(1) . IV. History of the Proceedings 12 I will provide a chart summarizing the relevant timeline of events as gleaned from the record, transcripts and submissions.

This will provide some necessary context to the arguments. Date Event February 1, 2019 Information sworn February 21, 2019 First appearance. Matter adjourned to March 21, 2019 to complete retainer. March 21, 2019 Second appearance: Retainer not perfected. Matter adjourned to April 18, 2019. April 18, 2019 Third appearance. Crown pre-trial (“CPT”) completed. The parties requested a Judicial pre-trial (“JPT”). Matter adjourned to June 19, 2019 for JPT. June 19, 2019 Fourth appearance: Both parties indicate JPT completed. Trial dates scheduled for two-days: April 20 and 21, 2020.

July 22, 2019 Fifth appearance: Defence counsel advises at a status hearing that matter will proceed to trial. March 15, 2020 The OCJ suspends normal court operations due to the COVID-19 pandemic. Out of custody matters are presumptively adjourned for 10 weeks from the scheduled court appearance. April 20, 2020 Sixth appearance (first day of anticipated trial date): Matter addressed remotely and is presumptively adjourned for 10 weeks to June 29, 2020 as per Chief Justice’s directive. April 21, 2020 Expected end of trial date.

May 11, 2020 Notice to Profession #1 (“Notice #1”) published advising matters suspended until July 6, 2020. Mr. Yeghoyan emails Crown counsel advising case cannot resolve and will proceed to trial. Requests another JPT. May 12, 2020 Crown counsel responds “Yes, I think they are just setting up the protocol as to how they will be set”. Crown counsel raises a concern about the time estimate for trial and adds: “Other than that I think we are in a position to proceed”. May 15, 2020 Mr. Yeghoyan emailed the trial coordinator’s office requesting JPT as per Chief Justices’ directive.

May 22, 2020 Notice #1 updated and posted on OCJ website June 1, 2020 Notice #1 updated advising inter alia , no trials or preliminary hearings will be conducted until July 6, 2020. June 2, 2020 Mr. Yeghoyan emails Crown counsel advising JPT requested as per updated Notice #1 June 9, 2020 Trial Coordinator’s office responds to Mr. Yeghoyan, copying Crown counsel, advising inter alia , the office has not completed moving through the “high priority” list and will advise when the office is ready to address this (Mr. Pinkowski’

s) matter which is a “medium priority” June 17, 2020 Notice #2 published on OCJ website advising, inter alia , a phased plan to reopen courtrooms with phase one to start in some courtrooms in Ontario on July 6 th with an anticipated end date of November 2020. (The courthouse in Oshawa is excluded from list of courts set to reopen on July 6th). Notice #2 requires mandatory JPT’s for all cases scheduled between March 16 and July 3, 2020 and adds: “The Court will provide further details about the procedure for setting trial and preliminary hearing dates shortly”.

June 17, 2020 Trial Coordinator’s office communicates with parties offering June 23, 2020 for mandatory JPT as per Notices. The parties accept this date. June 23, 2020 Mandatory JPT completed. June 29, 2020 Seventh appearance: Remote appearance where matter is presumptively adjourned for 10 weeks to September 14, 2020

July 2, 2020 Notice #3 published on OCJ website with update on scheduling: “Out of custody [matters] adjourned due to COVID-19: To be announced” August 12, 2020 Notice #4 published on OCJ website with update on scheduling: “Out of Custody hearings adjourned due to COVID-19 (between April 6 to 24, 2020), scheduling will begin no later than August 24, 2020” September 14, 2020 Eighth appearance. Mr. Yeghoyan advises mandatory JPT completed and trial scheduling form as per Notices sent to trial coordinator’s office and counsel is waiting for a new trial date.

Matter is presumptively adjourned 5 weeks (not 10 weeks) as per updated Notice to September 28, 2020. September 28, 2020 Ninth appearance. [No transcript provided] October 6, 2020 Tenth appearance. Matter is presumptively adjourned 5 weeks to November 10, 2020. Defence counsel submits “hoping to set a new trial date as possible”. Trial Coordinator’s office emails all parties offering trial dates of November 3, 4, 17, 18, 19, December 11, 15. Email notes defence only available on November 3, 2020 and had other Nov & Dec 2020 dates but court did not. New trial dates accepted for January 11, 12, 2021.

November 10, 2020 Eleventh appearance: Trial dates for January 11, 12, 2021 confirmed on the record. Note : Approximate deadline to file s.11(

b) Charter motion [60 days in advance of trial before trial Judge; OCJ Rules 2.4(1)(e)] Note : Notice #3 updated and provides inter alia : “Despite the extension of filing deadlines, materials related to pre-trial applications and trial applications should continue to be served on the opposing party in accordance with the timelines set out in the Criminal Rules of the Ontario Court of Justice for any trial, preliminary inquiry or application that is scheduled to proceed on or after July 6, 2020”. January 7, 2021 Defence counsel files s.11(

b) Charter motion. Crown counsel responds in writing opposing application. January 11, 2021 Twelfth appearance.

Section s.11(

b) Charter motion heard. Application dismissed with reasons to follow. Mr. Yeghoyan concedes late filing of Charter motion due to delay in funding for transcripts and any further delay beyond two-day trial estimate is defence delay for purposes of s.11(b) . January 12, 2021 Thirteenth appearance. Trial resumes with evidence of complainant and commencement of defence evidence. Parties select March 26, 2021 for continuation of trial. 13 In submissions, Ms. Turner argued, fairly in my view, the Crown would not ask the court to summarily dismiss the s.11(

b) Charter application for failing to comply with the Rules of Criminal Proceedings (“Rules”) as Mr. Yeghoyan filed the s.11 (

b) application on the eve of trial. [5] That said, she urged the court to consider the late filing as an important factor in assessing the conduct of the defence in meeting its onus as to whether the defence took “meaningful steps” and a “sustained effort” to expedite the proceedings should the delay fall below 18 months. She reminds me the Charter application could have been launched and heard well before the trial and lamented the court spending precious trial time in adjudicating an application with novel issues upon commencing the trial. However, Ms.

Turner acknowledged the unique circumstances of the pandemic and did not argue any delay after the trial was rescheduled should constitute defence delay. In response, Mr. Yeghoyan, argued the Crown was responsible for delay from October 6 th onwards but not responsible for any further delay occasioned by any extra time it takes to argue the motion and complete the rescheduled trial. In other words, any delay as a result of continuing the trial and deliberation of verdict would be excluded from the Jordan calculations.

As a result of the parties’ positions, both agree that the end date for purposes of calculating overall delay should be day two of the trial, being January 12, 2021, when the case would have started, not a future date on which the trial may continue and eventually conclude, being March 26, 2021. [6] V. The Legal Principles 14 The Ontario Court of Appeal in R. v. Coulter [7] , infra summarized the steps to be taken in applying the Jordan framework: 1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. 2.

Subtract defence delay from the total delay, which results in the "net delay". 3. Compare the net delay to the presumptive ceiling.

4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. 5. Subtract delay caused by discrete events from the net delay (leaving the "remaining delay") for the purpose of determining whether the presumptive ceiling has been reached. 6.

If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. 7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. VI. Findings and Analysis 1. Calculating total delay 15 The total delay from the date the information was sworn to the agreed end date of the trial for purposes of this application is approximately 711 days or 23.7 months. 2.

Defence delay 16 The parties are ad idem that the defence is not responsible for any delay up to April 21, 2020. I agree with this submission because the transcripts reveal the defence acted with dispatch in moving the case through the various intake and administrative appearances. With respect to delay after the trial was re-scheduled, the Crown says this could count as defence delay because Mr. Yeghoyan was unavailable for early trial dates but instead, the Crown says it should count as part of the exceptional circumstance analysis. I will review this submission below. 3.

Net Delay 17 The trial did not proceed in April 2020 and was rescheduled for January 2021. The net delay is 23.7 months which exceeds the 18-month ceiling in Jordan and is therefore presumptively unreasonable. 4. Exceptional Circumstances 18 This step in the Jordan framework is the crux of the Charter application. Jordan holds that the Crown may rebut the presumption of unreasonableness by showing that the delay is reasonable because of the presence of exceptional circumstances which are those that lie outside the Crown’s control in the sense that: (

i) the circumstances are reasonably unforeseen or reasonably unavoidable and (ii) the Crown cannot reasonably remedy the delays emerging from the circumstances once they arise: Jordan , at para. 69 . 19 In R. v. Faulkner , [8] infra, Justice Watt writing in the Ontario Court of Appeal further explained exceptional circumstances: “[The] Crown does not establish exceptional circumstances simply by pointing to a past difficulty. More is required. And that ‘more’ is a showing that the Crown took reasonable and available steps to avoid and address the problem before the delay exceeded the ceiling.

This includes but is not limited to resort to available procedural devices to move the case forward: Jordan , at para. 70 .” 20 The parties submit Mr. Pinkowski’s case is not complex. I agree. The litigation involves a domestic assault allegation which will turn on an assessment of credibility and reliability which is the bread and butter of the kind of litigation in the OCJ. While there was some dispute as to how much trial time was needed to complete the case, the parties settled on two days after a JPT.

This was not an unreasonable estimate as one-half day was spent arguing the Charter motion and the balance of the time (1.5 days) was spent in the trial proceedings. One more day has been scheduled to complete the matter in March 2021. Positions of the Parties on Discrete Events 21 With respect to discrete events, the Crown’s position is all of the delay which started from the period when the courts shuttered due to the COVID-19 pandemic to the end of the rescheduled trial constitutes a discrete event outside the Crown’s control and is therefore an exceptional circumstance.

In this case, this would include the period from April 21, 2020 when Mr. Pinkowksi’s trial would have finished (but for the pandemic) to January 12, 2021, the new date on which his rescheduled trial was expected to finish. This represents a period of 266 days or approximately 8.8 months. Ms. Turner submits if the courts didn’t close due to the pandemic and Mr. Pinkowski’s trial proceeded as scheduled, the overall delay would have been approximately 14.7 months, below the 18-month Jordan ceiling.

However, due to the pandemic, the Crown was handcuffed by the unforeseen decision to close the courts and acted in accordance with the OCJ directives and notices when it came time to reschedule the trial. As a result, the pandemic-induced delay should be subtracted from the overall delay resulting in net delay of approximately 14.9 months which is below the 18-month Jordan ceiling. Further, the Crown has rebutted the presumption of unreasonableness. In support of this position, Ms. Turner relied on decisions of my colleagues in the OCJ: R. v. Stack [9] infra, released on November 23, 2020 and R. v.

Truong [10] , infra, released on December 22, 2020. 22 Mr. Yeghoyan concedes the COVID-19 pandemic was an unforeseen event but and is therefore an exceptional circumstance to a degree but argues only a limited period of time, approximately 4 of the 8.8 months should count as a discrete exceptional event. He argues the plan to reopen the Oshawa courthouse was inadequate in light of other essential services that were safely opened in July 2020. Further, he says the Crown failed to take reasonable and available steps to mitigate delay upon learning Mr.

Pinkowski’s case was not going to proceed in April 2020 and the court and trial coordinator’s office failed to take reasonable steps in mitigating delay by deeming Mr. Pinkowski’s case wasn’t a high priority. In light of this position, Mr. Yeghoyan argues the net delay is approximately 19.7 months (23.7 minus 4 months) which is over the 18-month Jordan ceiling and presumptively unreasonable. He argues the Crown hasn’t rebutted the presumption of unreasonableness. 23 I disagree with the defence arguments.

24 In my view, the defence argument fails for three main reasons: (

i) in the absence of evidence to the contrary, I find the Office of the Chief Justices’ phased plan to reopen courtrooms in Ontario, and in particular the impact it had on Mr. Pinkowski’s case as an out of custody litigant , was reasonable in mitigating delay, (ii) I am satisfied on this record the Crown took reasonable and available steps to mitigate delay in view of the directives and notices, and (iii) the trial coordinator’s office did not act unreasonably in re-scheduling Mr.

Pinkowski’s trial because there was reasonable adherence to the directives and notices. 25 In view of these conclusions, I agree with the Crown’s calculation of net delay and find the entire period of 8.8 months must be subtracted from the overall delay of 23.7 months leaving net delay of 14.9 months. However, I will consider an alternative position in view of the fragmented record. According to Notice #4 released on August 12th, Mr. Pinkowski’s trial was ready to be rescheduled on August 24, 2020, but dates were not offered until October 6 th , representing a period of 43 days.

It is my view on this record that the court, trial coordinator and Crown could not have reasonably done more during this period to mitigate delay, but, if I am wrong on the basis that all parties were technically “available” to reschedule the trial and did not until later on - and exclude this period from pandemic induced delay, the delay caused by exceptional circumstances amounts to 223 days (266 - 43 days). The net delay is approximately 488 days or 16.2 months (up from 14.9 months) which is still below the 18-month Jordan ceiling.

Either way, I find the defence has not met their onus to prove the delay is otherwise unreasonable or that the case took markedly longer than it should have. Discussion 26 Mr. Yeghoyan argues while COVID-19 was a discrete event, the court should have been ready to accommodate his client’s trial as of July 2020 which is when other essential services in Ontario had opened up with health and safety protocols. He pointed to pharmacies and banks as an example. When asked how much delay could reasonably be attributed to the pandemic, he submitted 4 months: the period from March to July 2020. Ms.

Turner submits it’s artificial to parse out pandemic-induced delay in this fashion and in any event, the Crown can’t be held to account for the delay because the courthouse was closed and the Crown adhered to the notices directives. 27 Before I address Mr. Yeghoyan’s argument, it is important to not lose sight of the period of delay that is in dispute. Mr. Pinkowski’s trial was scheduled to proceed on April 20, 2020. The parties agree the state of emergency was declared by the government in March 2020, one month before the trial date.

It is my view that any time from March to April 2020 would have no bearing on pandemic-induced delay because Mr. Pinkowski was still waiting for his trial date to arrive when the pandemic struck. It would be unrealistic to expect the court, Crown and trial coordinator to start taking steps to mitigate delay as of March 15 th because it was unclear what immediate effect the pandemic might have on court operations. Moreover, defence counsel didn’t raise any impending issue of delay as of March 15 th likely for the same reason because Mr.

Yeghoyan wouldn’t have known what effect the pandemic might have on his client’s impending trial. This factor separates this case from cases relied on by Mr. Yeghoyan where the case was underway or had already been rescheduled but was delayed because of the pandemic. [11] I will return to these cases later on but in my view, the submission that the starting point to assess delay in this case should be March 2020 is unpersuasive. Respectfully, the argument that 4 months is reasonable as an exceptional circumstance is speculative and isn’t grounded in any evidence. 28 It would appear Mr.

Yeghoyan’s core complaint is focused on the court not being ready as of July 2020 to accommodate Mr. Pinkowski’s trial. There are cases in Canada that have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended. [12] None are decisions of senior appellate courts which are binding on me but in my view, the legal reasoning of Nakatsuru J. in Simmons , supra is instructive. Justice Nakatsuru offered five compelling reasons why this should be the correct approach.

These five reasons include: (

i) the jurisprudence supports an approach to deduct the entire time impacted by COVID-19, (ii) the pandemic had far reaching impacts beyond the period impacted by the suspension of court proceedings, (iii) the effect of the discrete event of the pandemic does not end when courts are ready to resume normal court operations, (iv) the discrete event caused by the pandemic continues into the future and (

v) courts should be reluctant to cast individual blame during a pandemic during extraordinary circumstances: supra, at paras. 69-77. S immons involved a jury trial in the SCJ in Toronto. Mr.

Pinkowski’s case does not involve a jury and while the jury factor is an important distinguishing feature, I agree with the overall reasoning of Nakatsuru J. and find it has direct application to this case. 29 That said, I realize that matters in the OCJ might present with different circumstances because while the COVID-19 pandemic and its impact as a whole, was the same, the directives and notices were different from those in the SCJ. I am also mindful that my decision in this case must address the positions of counsel.

For example, in Truong , my colleague Justice North was confronted with a Crown submission that “at the very least” the period from March 24th to August 5 th (thus a limited period during the pandemic) should be treated as an exceptional circumstance. [13] The Crown did not take the position advanced in this case that the whole period of pandemic-induced delay to the end of the trial should be treated as a discrete event.

Justice North agreed with the Crown submission and was not confronted with a record like here, where defence counsel argued the court, Crown Attorney and trial coordinator failed to mitigate delay. As a result, Truong is not inconsistent with cases in Ontario as Justice North didn’t have to consider the argument advanced in this case.

Nor do I take the Crown’s reliance on Truong in this case as advancing an inconsistent position. [14] The jurisprudence in this area is evolving and each case may present with different circumstances. 30 I propose to scrutinize the 8.8 months of pandemic-induced delay to determine if the Crown, court and trial coordinator mitigated delay in this case. These periods of time are based on material events for purposes of assessing exceptional circumstances and include: (

i) April 21, 2020 to August 24, 2020 (anticipated end of initial trial date to the date when Mr. Pinkowski’s case was available to be rescheduled pursuant to Notice #4); (ii) August 24, 2020 to October 6, 2020 (period between the available rescheduling of trial date to actual date when trial was rescheduled) and; (iii) October 6, 2020 to January 12, 2021 (period between rescheduled trial date to end of rescheduled trial). i. April 21, 2020 to August 24, 2020

31 It is agreed the Oshawa courthouse closed on March 15, 2020 due to the COVID-19 pandemic, which resulted in the OCJ adhering to a reduced operational schedule. The courthouse in Oshawa was impacted by this

schedule which resulted in the Office of the Chief Justice taking measures to limit non-essential, in-person appearances in courtrooms to curb the spread of the virus. Invariably, Mr. Pinkowski’s trial in April 2020 did not proceed as scheduled and was presumptively adjourned for 10 weeks. The Oshawa courthouse was not ready to accommodate Mr. Pinkowski’s trial using remote technology in April 2020 as those measures were implemented later as the pandemic evolved. It would be unrealistic to expect a courthouse to immediately pivot to remote technology at break-neck speed.

A lot had to be done to prepare for remote hearings. Further, it cannot be said the decision to suspend in-person hearings to curb the spread of the virus was an unreasonable decision. Nor can the decision to presumptively adjourn matters for 10 weeks at a time early in the pandemic, also be construed as an unreasonable decision.

I draw upon my knowledge and experience in noting that the purpose of the adjournments was to avoid parties attending at the courthouse to maintain safe social distancing which was based on available public health advice that was being provided to all justice system partners, including the OCJ. The presumptive adjournments did not detrimentally impact Mr.

Pinkowski’s liberty interests because the adjournment was a legal mechanism to maintain jurisdiction over the case during suspension of proceedings and to avoid courts being asked to issue bench warrants resulting in parties potentially being arrested due to missed court dates because of the pandemic. The delay which resulted from the presumptive adjournments was not because of something that was in the control of the court, trial coordinator or the Crown. Rather, it was due to the unknown impact of the virus.

The presumptive adjournments were reduced from 10 to 5 weeks as the pandemic evolved and the OCJ became ready to accommodate remote hearings. I find the decision by the Office of the Chief Justice in limiting in-person attendances in the Oshawa courthouse and presumptively adjourning Mr. Pinkowski’s case for 10 and later 5 weeks, a reasonable decision when viewed in context of a public health emergency. The decision to reduce the length of the adjournments, along with various Notices to litigants about how to move their case forward were all consistent with the obligation of a court to mitigate delay.

Certainly, there is no evidence to suggest the court could or should have mitigated the delay caused by the onset of the COVID-19 pandemic any differently. 32 Mr. Yeghoyan argues the response to reopen the courthouse in Oshawa was slow and out of step with other essential services which were opened with health and safety measures in July 2020. He says the court (and therefore the Crown and trial coordinator’s office) should have been ready by July 2020 to accommodate Mr. Pinkowski’s matter which could have included hiring more Judges or Crown Attorney’s. Mr.

Yeghoyan did not say whether the court should have been ready to reschedule his client’s case in July or whether the court should have been ready to adjudicate his client’s trial in July. Either way, this argument is without merit. This point was addressed squarely in Simmons , supra at para. 70 where Nakatsuru J. described the magnitude of the impact of the virus on normal court operations: … “The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This is turn had a significant impact on scheduling.

Scheduling new trials and rescheduling existing trials has become complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was”. These comments were made in context of hearings in the SCJ, but they apply with equal force to matters in the OCJ, including Mr. Pinkowski’s matter.

My colleague Justice North made the same point in Truong , supra at paras. 73-81 when he said: “With respect, the suggestion by the Applicant's counsel that any of the delay in this case was reasonably avoidable if more resources had been allocated to "modernize" courts is speculative and fails to give sufficient weight to the complexity of the unprecedented challenges created by the COVID-19 pandemic”. I agree. 33 The record reveals the Office of the Chief Justice issued Notice #1 on May 11, 2020, some two months after the state of emergency had been declared. This Notice suspended trials until July 6 th .

In the absence of evidence to the contrary, it is my view that a period of approximately 60 days was entirely reasonable to process the scope of the pandemic and the impact it would have on usual court operations. Within two weeks, Notice #1 had been updated, and on May 22, 2020, Notice #2 was issued confirming what had earlier been intimated that no trials would be heard until July 6 th – at the earliest.

On June 17, 2020, thus in the middle of the state of emergency, the Office of the Chief Justice issued Notice #3 introducing a phased reopening of courts alerting litigants the OCJ hoped to complete the reopening of courts by November 2020. The phased plan contained a start and end date and didn’t leave a litigant waiting in perpetuity. A phased plan was reasonable because it was responsive to the unique circumstances of each jurisdiction. The virus was spreading faster in some communities than others. It made sense to prioritize opening some jurisdictions more quickly than others.

The OCJ was modernizing courtrooms and encouraging remote hearings which included audio hearings where possible. The submission that the court should have been ready in July 2020 to either reschedule the missed trial or accommodate the missed trial is simply unreasonable when viewed in context of what the OCJ was facing at the time. 34 In Jordan , at para. 40 , Justice Moldaver implored all justice system participants to avoid “a culture of complacency” which had previously plagued the justice system resulting in problems of delay.

In my view, the various Notices of the Office of the Chief Justice did just that in midst of an uncertain and evolving public health crisis. Litigants were being instructed how to avoid being complacent, by reassessing criminal prosecutions, conducting mandatory pre-trials and exploring whether remote technology could be used to conduct proceedings. The Notices provided directions to all parties, including defence and Crown counsel on how to move their case forward in the interim.

The Office of the Chief Justice initiated a phased plan to reschedule matters by focusing on the vintage of the case and the status of the litigant. I find this was a deliberate choice designed to mitigate, not entrench delay caused by the pandemic. [15] In Mr. Pinkowski’s case, this meant his trial was eligible to be re-scheduled after other matters involving in-custody litigants and ongoing cases were rescheduled. This was an entirely reasonable strategy to mitigate delay as Mr. Pinkowski’s case had yet to start.

The reality is the period of time from April 21, 2020 onwards was a discrete exceptional event that was out of the control of the Crown Attorney’s office and the trial coordinator. All parties were being advised by the various Notices on how to move the case forward. Apart from re- assessing the merits of the prosecution and conducting the required pre-trials, it’s hard to see what else the Crown Attorney’s office could or should have done to mitigate delay in a case that had yet to start. 35 Mr.

Yeghoyan submits the trial coordinator’s office also failed to mitigate delay by deeming his client’s case to be “medium priority” not “high priority”. The record reveals the trial coordinator’s office communicated with Mr. Yeghoyan advising they were working through the high priority list and would get to his client’s case when this task was completed. He complains it was unreasonable for the trial coordinator to assign lower priority to his client’s case. I disagree with this argument. In R. v.

Allen [16] , infra, Doherty J.A. held at p.348: "no case is an island to be treated as if it were the only case with a legitimate demand on court resources." The COVID-19 pandemic created an extraordinary scheduling conundrum and the decision by the Office of the Chief Justice as to how to how to prioritize cases including Mr. Pinkowski’s status as an out of custody litigant, was entirely reasonable. The phased reopening plan was attuned to a number of valid factors, not just one. Mr. Pinkowski was an out of custody litigant, thus it was reasonable for him to wait

longer for his day in court when compared to a litigant who was in-custody or who had already started their matter which was suspended because of the COVID-19 pandemic. See: Truong , supra at para. 77 , Stack , supra, at para. 78 . 36 The trial coordinator’s office plays a vital role in courts administration. A trial coordinator collaborates with justice system participants in scheduling matters but is otherwise independent of Crown counsel. Crown counsel cannot direct the trial coordinator to

schedule matters in a certain way. Instead, Crown counsel can raise a scheduling issue with the court and have the court make a decision about how to best

schedule a matter but this is more the case when a matter has already started and a Judge is seized with the case. Again, Mr. Pinkowski’s case was yet to start. The task of scheduling matters is logistically complex and challenging at the best of times. A trial coordinator has to

schedule a myriad of matters based on information provided by the parties: the length of a matter, the status of a litigant and availability of the parties. The office is also guided by the circumstances of the jurisdiction including any local scheduling directives. A trial coordinator has no control over how the case will evolve when in the courtroom. An estimate for one-day could turn into several days because of unexpected issues. Much like the logistical complexity of an air-traffic controller, a trial coordinator can anticipate some unknowns but cannot control a glitch outside their control.

COVID-19 was an unexpected glitch and wreaked havoc on court scheduling. Mr. Pinkowski’s case along with others was directly impacted by this glitch. It was perfectly reasonable to prioritize the safe landing of matters that were already flying under the radar before a new flight like Mr. Pinkowski’s case could take off. The Office of the Chief Justice devised a phased rescheduling plan in light of this allocation of priority. It is unrealistic to think the court should have been able to reschedule all the cases impacted by COVID-19 at once. I find the trial coordinator’s response to Mr.

Yeghoyan that his client’s case was a “medium priority” is reflective of this reality because his case was still on the tarmac waiting to take off. Likewise, I fail to see what ‘more’ Crown counsel could or should have done during this period to mitigate delay. All parties were reasonably adhering to the directives and notices and waiting for the courts to safely reopen. ii. August 24, 2020 to October 6, 2020 37 Mr. Pinkowski’s case was ready to be rescheduled no later than August 24 th according to Notice #4.

I’ve already explained why this date was reasonable in light of the circumstances created by the pandemic. The record reveals Mr. Pinkowski’s case was not rescheduled until October 6 th . Ms. Turner argues the Crown could not have mitigated delay in the intervening period because the Crown, like defence counsel, was waiting for the new trial date to be offered by the trial coordinator. I think this position carries weight in the circumstances of this case because Mr. Pinkowski’s case was reasonably not deemed a high priority.

As noted above, the trial coordinator would have to reschedule in-custody and suspended matters before out of custody matters impacted by the pandemic. This would invariably result in a backlog and some delay in scheduling. It is unrealistic to think a new date should have been set on August 24 th and quite frankly I simply don’t know if it would have made a difference in the circumstances of this case because there’s no evidence before me that the defence was also available for a two-day trial commencing on August 24 th .

That said, I am mindful that Jordan instructs the Crown bears the onus to show it did something reasonable to mitigate delay, even if what it did was ultimately not successful. If Mr. Pinkowski was in-custody or his case was suspended, I would expect the Crown would have been communicating with Mr. Yeghoyan and the trial coordinator before August 24 th to make plans to reschedule the matter with dispatch but that’s not this case.

I find the Crown did not act unreasonably during this intervening period but even if I am wrong because the Crown was technically “available” to secure new dates as of August 24 th and didn’t, I will proceed on the assumption the period between August 24 th and October 6 th should be excluded from the Crown’s submission of pandemic-induced delay. Again, this is a period of 43 days. 38 I have considered Mr. Yeghoyan’s reliance on the cases of Kande , supra and Zahid , supra to support his submission that that the Crown did not do enough from March to October 6 th to mitigate delay.

In my view, his reliance on these cases is misplaced because in those cases, no part of the proceedings were directly affected by the pandemic. In Kande , supra, Justice Rahman sitting in the Brampton courthouse found a s.11 (

b) violation in a case where the matter was rescheduled from an initial trial date in September 2019 to December 2020. At the time of setting the new date, the Crown acknowledged the delay was “outrageous”, and Rahman J. found the Crown did nothing to mitigate delay in view of this concession. At para. 25 he held “It would be unfair to allow the Crown to rely on the hypothetical possibility that but for the pandemic, it could have taken steps after mid-March to try and expedite the trial”.

He reasoned it made sense to assess the effect of discrete events when they have a real, not virtual impact on the proceedings. [17] Likewise, the decision in Zahid, supra also has no bearing on this case because Justice Duncan made a similar point as that in Kande , supra. [18] Again, I find the decision in Simmons , supra and the cases cited therein have more application to the circumstances of this case. iii. October 7, 2020 to January 12, 2021 39 The final block of the pandemic-induced delay is the period between October 6, 2020 and the agreed upon end of the trial date on January 12, 2021. Mr.

Yeghoyan’s complaint shifts away from the trial coordinator’s office to the Crown’s office who he says did not mitigate delay. 40 Ms. Turner submits when the trial was rescheduled on October 6, 2020, the Crown accepted the January 2021 trial dates and there’s a reasonable inference that the Crown was also ready to

schedule a two-day trial as early as November 2020, some four weeks later. Regardless, she says the correspondence from the Crown’s scheduling assistant makes it clear the Crown’s office was attuned to the matter not being a continuing trial which is proof that the Notices were being adhered to but also an inference that the Crown was ready to proceed in November 2020. Mr. Yeghoyan responds the defence turned down a two-day trial in November and December because he was unavailable, thus this period of delay should not count as defence delay for purposes of the Jordan framework. 41 I tend to agree with Mr.

Yeghoyan that defence counsel cannot hold themselves in perpetuity, but at the same time, I also agree with Ms. Turner that this period cannot be held against the Crown because the rescheduling fell within the pandemic-induced period. I have determined that the more sensible way to approach this block of time on this record is to treat it as part of the continuing exceptional circumstance caused by the discrete event of the COVID-19 pandemic.

This approach is supported in Simmons , supra where Nakatsuru J. came to the same conclusion at para. 75. 42 The record is silent as to whether the Crown was ready to proceed with trial dates in November, some four weeks after the trial coordinator offered dates on October 6 th . The email correspondence from the trial coordinator to all parties stated:

The following dates will be set on the next court date of Jan 11 & 12 #105 I had offered the following dates Nov 3 #101 & Nov 18 #409 Nov 17 #409 & Nov 18 #409 Nov 17 #402 & Nov 19 #405 Dec 11 #408 & Dec 15 #101 Defence was only available on Nov 3/20 and requested January dates. Defence had other dates Nov & Dec 2020 but court did not. [balance of email edited as irrelevant] Crown counsel’s scheduling assistant responded on October 6 th : This is not a continuing trial so the offered dates are agreeable to the crown.

I have cc’d [Crown counsel] to confirm as I am not sure about serving subpoenas on short notice for the beginning of November if those are the agreeable dates 43 The parties did not provide any further correspondence beyond October 6 th which suggests the November and December dates were not selected for some reason. It could be due to the subpoena issue or something else.

While it is difficult to arrive at firm factual findings based on this record, I can state with some certainty the following: it is extraordinary that the court and trial coordinator were able to offer a two-day trial in November and December which represents a significant effort to mitigate delay. The trial coordinator offered two consecutive dates and options involving splitting the trial. Both were not accepted by defence counsel. Mr. Yeghoyan was available on November 3 rd but it’s unclear why this date wasn’t selected.

This lack of availability cannot accrue to Crown counsel or the court. 44 Further, I am not prepared to find the Crown acted unreasonably in agreeing to the January 2021 dates as the record reveals the Crown was acting in a climate where delay for purposes of s.11 (

b) was not a live issue. In a court appearance on October 6 th (before the above mentioned email was sent to the parties, likely after the court appearance), defence counsel was content with a 5 week presumptive adjournment and indicated the parties were in the process of setting a new trial date and if a date was selected, counsel would bring the matter forward to secure it. That was never done even though the dates were secured the same day. More to the point, defence counsel didn’t raise any s.11 (

b) concerns either at the court appearance or during the correspondence in which the January 2021 dates were selected. In light of this record, it’s hard to fault the Crown for not taking more proactive steps in insisting that the November and December dates should have been selected. I find the subpoena issue – which might have been the reason why the January dates were selected – is a less compelling reason but a legitimate one when viewed in context.

I simply don’t know the full picture as to why the earlier dates were turned down but realize everyone was acting within a pandemic and things were moving quickly. 45 In my view, it would be unfair to attribute this block of time from October 6 th to January 12, 2021 to defence and Crown inaction because I can reasonably infer the pandemic wreaked havoc on the calendars of everybody, not just the court. In Simmons , Nakatsuru J. made this point in the context of rescheduling jury trials, but the same idea applies in non-jury trials.

Defence counsel who had matters scheduled during the pandemic were likely met with the same rescheduling demands as those by a trial coordinator. The court was directing additional steps were required to move a case forward and Mr. Yeghoyan’s office and the Crown Attorney’s office were both diligently following these directives. The effect of the pandemic lingered. For this reason, I find this period is properly attributed as an exceptional circumstance as a result of the COVID-19 discrete event. 5.

Subtract delay from exceptional circumstance to arrive at net delay 46 For all of the above reasons, I agree with the Crown’s position that the entire period of delay occasioned by the COVID-19 pandemic from April 21, 2020 to January 12, 2021 is properly considered as an exceptional circumstance. In the alternative, I would be inclined to exclude 43 days from this calculation when everybody was technically “available” to set a new trial date. At its highest, this amounts to 223 days which the Crown has justified as reasonable, leaving 488 days or approximately 16.2 months.

This is below the 18- month Jordan ceiling and therefore reasonable. In light of the concession the case was not complex, I will proceed to step 7. 7. Has the Defence Met its Onus to Prove the Delay was Unreasonable 47 This step in the Jordan framework provides that the onus is on Mr. Pinkowski to establish that the delay of 16.2 months is unreasonable. To discharge this onus, the defence must show: (

i) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (ii) the case took markedly longer than it reasonably should have: Jordan , supra , at para. 82 . 48 To satisfy that the defence took meaningful and sustained efforts to expedite the proceedings, Moldaver J. held at para. 85: "it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier date." The defence must demonstrate "it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put

the Crown on timely notice when delay was becoming a problem and conducted all applications (including the s. 11 (

b) application) reasonably and expeditiously": Jordan , supra , at para. 86 . i. Sustained Effort 49 I am not satisfied the Applicant has established defence counsel took meaningful steps that demonstrate a sustained effort to expedite the proceedings. While defence counsel demonstrated a diligent and sustained effort in setting the first trial date prior to the COVID-19 emergency, respectfully, the same cannot be said for the period that followed. In arriving at this conclusion, I rely on my findings and discussion above and add the following two reasons. 50 First, I agree with Ms. Turner, Mr. Yeghoyan did not file the s.11 (

b) motion in a timely way. The record reveals the new trial dates were secured on October 6th and a s.11 (

b) motion was not contemplated at the time. Mr. Yeghoyan agreed in submissions he was available on November 3 rd , which was the first date offered by the trial coordinator but there is no reasonable explanation as to why this date was not selected to argue the s.11 (

b) motion. Mr. Yeghoyan submitted the filing of the motion was delayed due to an issue with funding of the transcripts which is required to comply with the Rules. While I’m sensitive to this submission because funding is out of counsel’s control, it still does not address the issue of why delay was not asserted either to the court or Crown counsel and why the parties were not put on notice. If the issue of delay was percolating since April 2020, the court would have expected a more sustained effort to secure funding earlier and have the application record ready to be filed when feasible.

If funding was the culprit, more could have been done to address the issue such as raising it on the record or requesting a JPT to have a court weigh in on the issue. Jordan instructs Crown counsel to “do something” to mitigate delay even if those efforts are ultimately unsuccessful. Likewise, if defence counsel makes an effort to do something, but fails, it may be a relevant consideration in discharging their onus. 51 Second, I find the defence was satisfied with the pace of the litigation because there’s no evidence suggesting otherwise. The record reveals Mr.

Yeghoyan was available to start the trial on November 3 rd which appeared to be available to all parties (subject to the subpoena issue) but was not selected by him. There’s no good reason as to why the trial could not have started on November 3 rd and continued later. It would be easier for the trial coordinator to secure one additional date for trial, as opposed to two. This is one example of the kind of effort that could have been undertaken but was not. While “splitting” the trial might not be ideal in some circumstances, Mr.

Pinkowski was out of custody and his case was a prime case to employ this strategy. ii. Markedly Longer 52 In assessing whether delay is markedly excessive in a case where the first trial date was adjourned, "a good yardstick of the reasonable time requirements of [the] case is the delay to the first trial date". [19] 53 On June 19, 2019, the matter was judicially pre-tried and on the same date, a two-day trial was secured for April 2020. The transcripts are silent about the process of securing this date.

For example, I don’t know if the April dates were the first available dates offered by the court or the first available dates for defence counsel. The Crown accepted the dates and made no submissions about earlier dates, if any. The transcript reveals nobody raised the issue of delay and defence counsel did not assert his client’s s.11 (

b) rights or raise the issue that the expected time to trial of 14.7 months was problematic. There would be no reason for the Crown to do so as this would have been below the 18-month Jordan ceiling. Of course, nobody knew a pandemic would strike many months later in March 2020 but the record reveals there was no issue with delay pre-pandemic. As a Judge in the Central East Region, sitting in the Oshawa courthouse for about 7 years, and taking a ‘birds eye view’ of the case, this period would have not been markedly longer than usual.

I rely on my experience when I say the courthouse in Oshawa is not plagued with problems of delay. Unreasonable delay is the exception, not the norm. VII. Conclusion 54 I have sympathy for Mr. Pinkowski’s frustration in having to wait for his day in court for reasons outside of his control. Justice Cory’s comments in Askov were uttered almost 31 years ago and when considered in context of a public health crisis, they are precious. It’s doubtful the court in Askov , Morin or Jordan envisioned a pandemic of this magnitude when the Supreme Court was developing a framework for assessing unreasonable delay.

The net delay in this case may be frustrating but it is not unreasonable for purposes of the Charter . 55 The s.11(

b) Charter application is dismissed. Released: January 18, 2021 Signed: Mr. Justice F. Javed [19] R. v. Ameerullah , 2019 ONSC 4537 , at para. 54 ; R. v. Belle , 2018 ONSC 7728 , at para. 8 .