R. v. Shamrat, 2022 MBPC 33

CITATION: R. v. Shamrat, 2022 MBPC 33 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) J. Laplante For the Department of Justice, Constitutional Law Section. - and – ) ) ) SHAMRAT, Golam Al Shahrear ) ) A. Hodge For the Accused ) ) Reasons for Decision ) Delivered on June 9, 2022 Carlson, P.J. INTRODUCTION [ 1 ] The accused, Golam Al Shahrear Shamrat, was arrested on September 7, 2019, and charged with several offences under the Criminal Code . [ 2 ] Mr. Shamrat’s trial in Provincial Court has been adjourned, and re-scheduled, six times.

The trial is now scheduled to proceed on June 27 and 28, 2022. [ 3 ] All of the trial adjournments were the result of restrictions imposed by the Provincial Court of Manitoba (the “Court”) relative to trials for out of custody accused persons during the COVID-19 pandemic. [ 4 ] On March 3, 2022, Mr. Shamrat filed a Notice of Application seeking a finding that his right to be tried within a reasonable time, guaranteed by

section 11(

b) of the Charter of Rights and Freedoms (the “ Charter ”) has been denied, and asking the Court to judicially stay the proceedings against him pursuant to s. 24(1) of the Charter . [ 5 ] This is the Court’s decision as to Mr. Shamrat’s application. ISSUES [ 6 ] The ultimate issues on this application are: 1. Has Mr. Shamrat’s right to be tried within a reasonable time pursuant to s. 11(

b) of the Charter been breached? 2. If so, is Mr. Shamrat entitled to a stay of proceedings pursuant to s. 24(1) of the Charter ? EVIDENCE ON THE APPLICATION [ 7 ] The evidence on the application is contained in: 1. The affidavit of Jessie Brar, an associate at defence counsel’s firm, affirmed April 23, 2022; 2. The affidavit of Jennifer Beaucage, a legal assistant in the Legal Services Branch of Manitoba Justice, affirmed May 9, 2022; and 3. Transcripts of proceedings relative to adjournments in these proceedings. [ 8 ] The affidavits filed of Mr. Brar and Ms.

Beaucage attach as exhibits email correspondence between counsel, and between counsel and the trial coordinators, relative to setting, adjourning, and re-setting trial dates for Mr. Shamrat’s matters, and also Notices issued by the Chief Judge of the Court between March 16, 2020 and February 25, 2022, advising of steps being taken by the Court in response to the COVID-19 pandemic. Those steps resulted in mass adjournment of trials set for accused persons who were out of custody, for certain periods that coincided with the waves of the COVID-19 pandemic.

CHRONOLGY OF PROCEEDINGS [ 9 ] The evidence establishes the following chronology of events: September 7, 2019 Mr. Shamrat was arrested and detained in custody.

September 10, 2019 Mr. Shamrat was released on judicial interim release on by Judge Eyrikson. Mr. Shamrat has remained continuously out of custody since September 10, 2019. October 18, 2019 Defence counsel notified the then assigned Crown attorney that Mr. Shamrat was seeking trial dates. November 9, 2019 Defence counsel notified a newly assigned Crown attorney that Mr. Shamrat was seeking trial dates. December 3, 2019 Trial dates were offered to defence counsel by the Crown. The earliest date offered was May 4, 2020.

Defence counsel accepted that date and May 4, 2020 was set for a one day trial (the “first trial date”). March 16, 2020 The first Notice relative to the COVID-19 pandemic situation was issued by the Chief Judge of the Court, advising that out of custody proceedings would be suspended until May 1, 2020. It did not appear that this Notice would impact Mr. Shamrat because his trial was set for May 4, 2020, a date after the period covered by the first Notice had ended.

April 15, 2020 A Notice was issued by the Chief Judge of the Court that due to the COVID-19 pandemic situation, the Court was further suspending the hearing of out of custody matters until May 29, 2020. April 17, 2020 Mr. Shamrat’s May 4, 2020 trial was adjourned (the “first adjournment”) in accordance with the April 15, 2020 Court Notice. June 24, 2020 Defence counsel emailed Crown counsel requesting new trial dates. June 29, 2020 Crown counsel offered trial dates. The first date offered was October 16, 2020 and the next was December 7, 2020.

Defence counsel advised Crown counsel that he was not available on October 16, 2020. Mr. Shamrat’s trial was re-set for December 7, 2020 (the “second trial date”) November 10, 2020 A Court Notice was issued suspending out of custody court appearances in Winnipeg from November 12, 2020 to December 11, 2020 due to the COVID-19 pandemic situation. The December 7, 2020 trial was adjourned (the “second adjournment”) December 2, 2020 The trial was rescheduled for February 19, 2021 (the “third trial date”). The earliest date offered by the Crown for this rescheduled date was February 5, 2021.

January 22, 2021 A further Court Notice issued advising that, due to the COVID-19 pandemic situation, one day out of custody trials would be suspended until March 31, 2021, but multi day out of custody matters would proceed as scheduled. February 11, 2021 The February 19, 2021 date was cancelled (the “third adjournment”). The earliest offered date to reset the trial was for May 18, 2021. January 22, 2021 Defence counsel emailed the Crown asking to reschedule the trial and asking the matter be set for two days.

February 11, 2021 A case management conference was set for February 17, 2021 February 12, 2021 The trial was re-set for May 28, 2021 (the “fourth trial date”). February 17, 2021 A case management conference was held. The case management conference judge authorized June 17, 2021 to be set as a second day of trial. May 21, 2021 A Court Notice was issued advising that out of custody trials would be suspended due to the COVID-19 pandemic situation, from May 25, 2021 to June 11, 2021.

May 21, 2021 Defence counsel emailed Crown counsel to request to set an additional continuation date while keeping the June 17, 2021 trial date. A second day for trial was set for June 25, 2021. The first day set for trial, May 28, 2021, did not proceed in accordance with the Notice. Although there were two days in June, 2021 set, there was still adjournment of the May 25, 2021 date (“the fourth adjournment”). June 8, 2021 A Court Notice issued advising that out of custody trials would be suspended from June 14, 2021 to June 25, 2021, due to the COVID-19 pandemic situation.

The trial was adjourned (the “fifth adjournment”) and was re-scheduled for February 18 and 22, 2022 (the “fifth trial dates”). February 18, 2022 was the earliest date offered. December 29, 2021 A Court Notice issued, further suspending all out of custody trials, due to the COVID-19 pandemic situation, until the end of January, 2022. January 18, 2022 A Court Notice issued, further suspending all out of custody trials until February 25, 2022, due to the COVID-19 pandemic situation. Mr. Shamrat’s trial was cancelled (the “sixth adjournment”).

January 19, 2022 Crown counsel, in offering new trial dates, included youth dates (pending authorization to use youth dates). The trial was re-set for November 10 and 23, 2022 (the “sixth trial date”).The youth dates were for about a month earlier but were not authorized to be used by the time the new dates were set (the same day they were offered) and ultimately were not authorized.

January 27, 2022 Overbooking dates were set for September 14 and 15, 2022 in order to get earlier dates (meaning there was no judge and courtroom assigned and the matter may not go ahead on those dates) (still considered the “sixth trial date”). January 27, 2022 Defence counsel advised Crown counsel that he was not waiving delay and would likely be filing a delay motion based on the number of COVID-19 related adjournments.

March 3, 2022 The delay application was filed by defence counsel. March 15, 2022 Crown counsel advised defence counsel that earlier trial dates had become available, June 27-29, 2022 and asked if defence counsel was available. June 27 and 28, 2022 were set for trial (still considered to be the “sixth trial date” since those dates were earlier than the overbooking dates). May 16, 2022 The delay application was heard. THE LAW AND ANALYSIS The Jordan Framework [ 10 ] In determining whether Mr. Shamrat’s s. 11(

b) Charter right has been breached, the Court must use the framework set out in R. v. Jordan 2016 SCC 27 . [ 11 ] Jordan set a presumptive ceiling of 18 months for trial in Provincial Court, from charge to end of trial. [ 12 ] The steps a court is to take in applying the Jordan framework were summarized in R. v.

Coulter , 2016 ONCA 704 at paragraphs 34 through 40, as follows: • Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , para. 47Z). • Subtract defence delay from the total delay, which results in the net delay ( Jordan , at para. 66 ). • Compare the net delay to the presumptive ceiling ( Jordan , at para 66 ). • If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( J ordan , para 47 ).

If it cannot rebut the presumption, a stay of proceedings will follow ( Jordan , para. 47 ). • 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 ( Jordan , para. 75 ). • 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 ( Jordan , at para. 80 ). • If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ).

Calculation of delay in this case Total delay – starting point [ 13 ] The total delay is from the date of Mr. Shamrat’s arrest, September 7, 2019, to the last anticipated day of trial, June 28, 2022. That amounts to delay of 33 months and 21 days. That is over the presumptive ceiling of 18 months. Defence delay [ 14 ] The only period that can be characterized as “defence delay” is the 53 days between October 16, 2020 and December 7, 2020, when the trial was re-set for the first time. Defence was not available for the October 16, 2020 date although both Crown counsel and the court were.

The second date offered, December 7, 2020, was set. This is no criticism of defence counsel. The Court recognizes defence counsel cannot reasonably be expected to be always available for a particular matter. But the period of time that the matter cannot proceed because defence counsel is unavailable when the Crown and court are does properly count as defence delay (para. 64 Jordan) . [ 15 ] After deduction of the 53 days for defence delay, the net delay is 32 months. That is still over the presumptive ceiling of 18 months, such that the delay is presumptively unreasonable.

Exceptional circumstances [ 16 ] The only way for the Crown to rebut the presumption that the delay is unreasonable is to establish exceptional circumstances. [ 17 ] Exceptional circumstances are not limited to rare circumstances. “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.” (para. 69, Jordan ) [ 18 ] “Exceptional circumstances” fall into two categories: discrete events and particularly complex cases (para. 71, Jordan). [ 19 ] The Crown does not allege exceptional circumstance based on complexity. Indeed, Mr. Shamrat’s case does not appear to be particularly complex. The kind of exceptional circumstances to be considered in this case are discrete events. [ 20 ] The Crown and justice system are required to mitigate delay resulting from discrete exceptional circumstances. “Within

reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. ( R. v. Vassell , 2016 SCC 26 , as cited at para. 75, of Jordan ). [ 21 ] The period of delay caused by discrete events is to be subtracted from the net delay, leaving remaining delay, for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [ 22 ] Every one of Mr.

Shamrat’s scheduled trial dates that was adjourned fell within one of the periods of COVID-19 related court restrictions which precluded his trial from going ahead. [ 23 ] The considerations to be determined relative to “exceptional circumstances” are threefold: 1. Were any, some, or all, of the periods during which court restrictions that closed out of custody trial courts, discrete events that were exceptional circumstances? 2. If so, did the Crown and the justice system reasonably mitigate the resulting delay? 3.

What, if any, period of delay caused by such discrete exceptional circumstance should be subtracted from the total period of delay? The Crown’s position as to exceptional circumstances : 1. Each of the time periods covered by the Notices imposing the restrictions in response to the COVID-19 pandemic, which resulted in the adjournment of out of custody trials, is a discrete event, and constitutes exceptional circumstances; 2. The Crown and the justice system took reasonable steps to mitigate the delay in Mr. Shamrat’s matters getting to trial, that was caused by the COVID-19 court restrictions; and 3.

All of the delay due to the adjournments resulting from the COVID-19 related court restrictions on out of custody matters, should be deducted from the ceiling calculation. Defence position as to exceptional circumstances [ 24 ] Mr. Shamrat’s position may be summarized as follows: 1. Indeed the initial suspension of out of custody trials is a discrete event, and falls within the definition of an exceptional circumstance as set out in Jordan ; 2.

But, as to even this first period, the amount of delay deducted from the ceiling calculation should be very limited because there were not steps taken by the Crown or the justice system to avoid and address the delay in this case. Defence says the Crown and the justice system did not reasonably prioritize cases that had been delayed due to COVID-19 related court closures; and 3.

None of the delay resulting from anything past the first suspension of out of custody trials should be deducted from the ceiling calculation, on the basis none of the subsequent suspensions were discrete events and therefore were not exceptional. Even if they were, defence argues, the Crown and justice system did not take the required steps to mitigate the delay. The first consideration: were the periods of court restrictions that closed out of custody trials “discrete events” that were exceptional circumstances? [ 25 ] It is hard to imagine a more widespread exceptional circumstance than the COVID-19 pandemic.

As my brother judge, Judge Rambow said in R. v. Folster , 2020 MJ No 187 : I will start out by saying that if COVID-19 is not a discrete and exceptional event, then I’m not sure what is. We find ourselves in a pandemic in which no one, let alone the Crown, has a full measure of control.

The world has, literally, been turned upside down”. [ 26 ] Courts all across Canada have consistently held that delays resulting from the COVID-19 pandemic are discrete exceptional circumstances within the meaning of Jordan , and adjournment periods resulting from court restrictions imposed due to COVID-19, have been deducted to some extent from overall delay. In Manitoba, examples are R. v. Chen Liang, an reported decision of Judge Cellitti delivered September 16, 2020; R. v. Turtle , an unreported decision of Judge Eyrikson delivered April 26, 2021; ; R. v.

Hanakowski , an unreported decision of Judge Thompson delivered on April 4, 2022; R. v. Bajwa , an unreported decision of Judge Sharma delivered April 26, 2022; R. v. Folster , 2020 MJ No. 187 ; and most recently R. v. Pierpoint et al . 2022 MBQB 117 . In R. v.

Truong, 2020 ONCJ 613 , the consistency of this approach taken by courts across the country was cited and references made to cases from Ontario, Alberta, British Columbia and Saskatchewan. [ 27 ] I am not aware of, and counsel did not bring to my attention, any case in which delay due to COVID-19 related restrictions causing a trial to be adjourned was not found to be a discrete event and exceptional circumstance in accordance with Jordan . [ 28 ] Mr. Shamrat does not dispute that the initial court suspension of out of custody trials was a discrete event and exceptional circumstance.

But, he says that the subsequent court restrictions and adjournment of out of custody trials should not be so categorized.

He points out that during most of two years that there were restrictions on out of custody trials, the Court responded to COVID-19 concerns by making modifications and accommodations to the courtrooms and as to how matters proceeded, including implementing mask mandates; eliminating the in- person Pre-Trial Coordination docket, drastically reducing public access to the court except for court parties, witnesses and a maximum of two support people; using teleconference and video conferences for bails, some sentencings and motions, and installing plexiglass barriers in courtrooms.

He says that trials for persons in custody proceeded. He says that the Courts and justice system were an essential service and exempt from the public health orders. He says that other essential service providers (such as grocery stores and liquor stores) remained in operation during the period of the Court closures to out of custody trials. He says that during the most recent suspension of out of custody trials, non essential services operated at reduced capacity for people with proof

of vaccination. He points to the fact that days before Mr. Shamrat’s February 18, 2022 trial was to start, a Winnipeg Jets hockey game took place, at full capacity, at Canada Life Centre in Winnipeg. [ 29 ] For those reasons, Mr. Shamrat says, it is unreasonable to say that the strict court restrictions on out of custody trials proceeding constituted exceptional circumstances for the entire duration of all the periods of the restrictions. [ 30 ] Courts in various jurisdictions have considered circumstances of multiple court closures due to COVID-19. Examples are R. v. Simmons , 2020 ONSC 7209 , R. v.

Boyko , 2022 ABPC 27 , and R v DS 1021 NLSC 157. All determined that all the periods of closure or restrictions were discrete events and “exceptional”, and all deducted the entire amount of the delay caused by the closures or restrictions from the ceiling calculation.

In Simmons , the court said, dealing with delay during the second wave of COVID-19, “in short, when it comes to assessing COVID-19’s impact on the criminal justice system, this discrete event continues.” [ 31 ] In R v Boyko , 2022 ABPC 27 , an accused argued that the setting of his trial date had been unreasonably delayed due to the backlog of cases from the first court closures due to COVID-19 that had to be rescheduled, and made the same type of argument Mr. Shamrat makes.

That is, that the first period of court restrictions due to COVID-19 did constitute an exceptional circumstance justifying some delay, but that a second period of restrictions could no longer be considered an exceptional circumstance because it occurred over a year into the pandemic, and steps had by then, been taken to make courtrooms safe, that the challenges of operating courts during pandemic were known and that the second restrictions on trials was avoidable. Those arguments were rejected.

Judge Collinson stated that the court had carefully monitored the situation throughout the pandemic and has balanced the requirements of providing an essential service and doing so responsibly, carefully and safely, which had included from time to time, putting in place restrictions at the time the first trial was adjourned, and found the steps of limiting trials to in custody and urgent matters, were “measured, reasonable, and necessary” (para. 33).

The court found the time period from the originally scheduled trial that was adjourned due to the COVID-19 restrictions, to the anticipated end of the second trial to be a discrete event and deducted that entire period of delay. [ 32 ] I do note that I have not reviewed nay case in which there were as many adjournments of an accused’s trial due to COVID-19 court restrictions as Mr. Shamrat experienced. Mr. Shamrat’s rescheduled trial dates have spanned all four waves of the COVID-19 pandemic. Nor have I seen a case in which the overall COVID-19 related delay was as long as in Mr.

Shamrat’s case (which was 24 months, from May 4, 2020 to June 28, 20202). So, I have given particular and careful consideration to Mr. Shamrat’s arguments on these points. [ 33 ] At the time each “wave” of COVID-19 happened, it could not reasonably be known what it would be like. How contagious would the virus, and any variants, be? How sick would people get? Would the measures put in place be effective to keep court participants safe? What impact would vaccination availability and effectiveness have? I note that first doses of vaccinations were not available for most people until spring or summer of 2021.

Decisions had to be made by court administrators during each wave, as to how to best balance the unknown health risks to all the players in the justice system, including accused persons and witnesses, with the need to ensure access to justice, using the information they had gained during the prior wave. Priorities had to be set. Those included in person hearings being generally limited to accused persons who were being held in custody, and urgent matters.

As time passed and more protective measures were implemented, some out of custody trials could be accommodated and the decision was made to hear multiple day out of custody trials. New ways of holding certain court hearings were found and implemented. [ 34 ] There are important distinctions between attending the courthouse for a trial during the pandemic and attending the other types of essential services and the non-essential services that Mr. Shamrat points to as being available during the pandemic. When a trial is proceeding, an accused, witnesses and counsel are compelled to attend. They have no choice.

Further, proof of vaccination for persons entering the courthouse was not required, as it was for attendance at many other service providers. [ 35 ] In my view, the restrictions imposed by the Court during each of the periods that resulted in Mr. Shamrat’s trial being adjourned and rescheduled, were necessary and reasonable. [ 36 ] Jordan , at para. 71 , notes that “ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience”. I sat as a judge during the COVID-19 pandemic court restriction periods. They were tumultuous and very uncertain times.

I observed that the pandemic impacted how cases were not able to proceed and how many cases were affected. Even in custody trials, which were permitted to proceed, were challenging to conduct, as often one or more participants in such trials (counsel, accused persons, witnesses, judges, clerks) were unavailable at the start, or became unavailable, during the trial, due to illness or requirements to isolate or quarantine. Any of the court participants coming down with symptoms that could potentially be indicative of COVID-19 could derail a trial.

Outbreaks of COVID-19 at penal institutions impacted availability of some accused for their trials, such that those trials could not proceed. Many, many in custody trials and dispositions were adjourned due to pandemic related maters, and this was the case during all four waves of the pandemic and during all the periods of the restrictions that prevented out of custody trials form proceeding.

These adjournments necessarily added to the trials to be rescheduled. [ 37 ] I conclude that the pandemic has impacted the movement of court proceedings throughout all periods of the court restrictions imposed. [ 38 ] I find that each period of the court restrictions on out of custody trials was a discrete event and an exceptional circumstance within the meaning of Jordan . [ 39 ] Specifically, I find the following to be discrete exceptional events due to the COVID-19 pandemic related court restrictions as to out of custody trials, in Mr. Shamrat’s case: 1.

May 4, 2020 – October 15, 2020 This represents the period of time between the first trial date (adjourned due to the court restrictions during the first COVID-19 wave) and the earliest offered date to reschedule the trial. This period is 165 days. 2. December 7, 2020 – February 5, 2021

This represents the period of time between the second trial date (adjourned due to the court restrictions during the second wave of COVID-19) and the earliest offered date to reschedule the trial. This period is 61 days. 3. February 6, 2021 – May 18, 2021 This represents the period of time between the February 5, 2021 trial date lost to COVID-19 restrictions during the COVID-19 second wave, and May 18, 2021, the earliest offered date to reschedule the trial. This period is 102 days. 4.

May 19, 2021 – June 17, 2021 This represents the period of time between the day after the earliest offered date to re-schedule the trial (May 18, 2021) and the first day of trial (June 17,2021) lost due to the court restrictions due to the third wave of COVID-19. This period is 30 days. 5. June 18, 2021- February 18, 2022 This represents the period of time between the first day of trial lost during the COVID-19 third wave, (June 17, 2021) and the earliest date offered for a reset two day trial (February 18, 2022). This period is 246 days. 6.

February 19, 2022 – June 27, 2022 This represents the period of time between the day after the earliest date offered for the rescheduled trial (February 19, 2022), lost during restrictions imposed during the fourth wave of pandemic, and the earliest date offered (and set) for the new trial (June 27, 2022). This period is 129 days.

The second consideration: did the Crown and the justice system reasonably mitigate the resulting delay? [ 40 ] As stated in Jordan , because the Crown and the justice system must always be prepared to mitigate delay resulting from a discrete exceptional circumstance, any part of the delay that the Crown and the system could reasonably have mitigated may not be subtracted from the total delay. [ 41 ] There is evidence as to when requests for trial dates were made and the dates for which they were re-set, and correspondence setting out related circumstances and efforts to get early dates. [ 42 ] The Crown says that each time Mr.

Shamrat’s matter was re-set, due to the court restrictions on out of custody trials, it was for the then earliest available date that counsel and the Court were available, that those dates were reasonable, and that those dates were within a comparable time to the period of time between the first request for trial dates (December 3, 2019) and the first trial date set (May 4, 2020).

Those timeframes are: • The time from when trial dates were requested after the first COVID-19 related adjournment (June 24, 2020) to the trial date set (December 7, 2020) was five and a half months. • The time from when the trial date was re-set after the second COVID-19 related adjournment (December 2, 2021) to the next trial date set (February 19, 2021) was two and a half months. • The time from when defence counsel asked for new trial dates after the third COVID-19 related adjournment (January 22, 2021) to the next trial date set (May 28, 2021) was four months. • The time from May 28, 2021 (the first day of what had been then set as a two day trial) until June 17, 2021 (the second day of trial which was not covered in the suspension period) was less than one month.

The second day added of June 25, 2021 was a week later. • The time from June 8, 2021 (when the June 2021 dates were cancelled due to another COVID-19 related suspension) until new scheduled trial dates of February 18 and 22, 2022 was eight months. • The time from January 18, 2022 (when the February 2022 trial dates were cancelled due to another COVID-19 related suspension) to the June 27 and 28, 2022 dates was five months. [ 43 ] As to the eight month period when the February 18 and 22, 2022 dates were set after the June, 2021 dates were cancelled, the trial had changed from a one day trial to a two day trial, which obviously is harder to accommodate than a one day trial. [ 44 ] The evidence also shows that indeed each time Mr.

Shamrat’s trial was cancelled, a new trial date was arranged within a month or less. [ 45 ] Mr. Shamrat says that what the Crown and the justice system did was not sufficient to satisfy the requirement set out in Jordan to mitigate the delay. [ 46 ] Specifically, Mr. Shamrat says that simply setting trial dates for the next available trial date in the normal course was the kind of complacency that cannot be tolerated and that the Jordan framework was designed to guard against. He references paragraph 70 of Jordan , which requires prioritization of cases delayed. Mr.

Shamrat says that prioritization of cases delayed due to the COVID-19 restrictions simply did not happen in his case. [ 47 ] Mr. Shamrat suggested things that the Crown and justice system could have done to prioritize matters his, and similarly delayed cases. He suggested that a Crown attorney who was available earlier than the assigned Crown attorney could have been assigned to the case. He suggested that when trials in other matters were cancelled, those dates could have been offered for his trial.

And he suggested that cases like his, that had been adjourned due to the restrictions, and adjourned multiple times, and those cases close to the Jordan ceiling, could have been prioritized and set ahead of other cases that were in the queue in the normal course.

[ 48 ] Indeed, the evidence does support that each time a trial date had to be re-set due to a COVID-19 related closure, it was like starting over, and the earliest date that counsel and the court were available was set. There is no evidence from the Crown as to any sort of specific system to prioritize matters that were being re-set, or re-set multiple times. [ 49 ] I do not disagree with Mr.

Shamrat, that in a perfect world, the kind of prioritization he suggests might have been desirable, and, if workable, could perhaps have mitigated delay more extensively than it was. [ 50 ] However, given the volume of out of custody trials that had to be re-set, and re-set multiple times due to the COVID- 19 related closures, together with the out of custody trials that were set and managed to escape the COVID-19 closure times, and all the new cases that were added to the system in the normal course and had to have trial dates assigned, in my view, it is simply not reasonable to expect a particular case, adjourned due to the COVID-19 court restrictions, to be prioritized over cases set in the normal course.

To expect the Court to prioritize matters being re-set ahead of other matters set for the first time would essentially mean “bumping” other matters already set. [ 51 ] As stated by my brother Judge Thompson in Hanakowski , “Reasonable mitigation does not require perfection on the part of the Crown or the Court”. [ 52 ] What is reasonable mitigation has to be informed by the scope of the exceptional circumstance. We are not dealing with a circumstance that impacted a single case. The scope of the exceptional circumstance in this case was huge and I daresay, unprecedented.

The Crown and justice system, in my view, acted reasonably to mitigate delay caused by the court restrictions triggered by each wave of the pandemic. [ 53 ] In my view, the re-setting of trial dates within short order of each trial being adjourned due to COVID-19 restrictions, the fact the trial dates (but for one) were set between two and five and a half months from the adjourned date, the efforts of Crown counsel to keep the matter moving by requesting youth dates, arranging a case management conference to obtain two days for the trial as requested by defence counsel, and in general, the ongoing communication between counsel, distinguish this case significantly from the case relied on by defence counsel in R. v.

Ghraizi , 2022 ABCA. In that case, the trial judge found, and indeed the Crown conceded, that the Crown had taken no steps to address the delay resulting from the COVID-19 induced shut down of out of custody trials or another delay due to Crown illness. The Court of Appeal endorsed the reasoning of the trial judge and the finding that the accused’s s. 11(

b) Charter right had been breached and a stay of proceeding issued. In Mr. Shamrat’s case, the Crown made no such concessions. Indeed, as set out above, I have found that the Crown took reasonable steps to move the matter ahead as expeditiously as possible in the unique circumstances created by the COVID-19 pandemic. Accordingly I do not find the Ghraizi case applicable to Mr. Shamrat’s situation. [ 54 ] I find that both the Crown and the justice system acted reasonably and with dispatch to get Mr. Shamrat’s trial re-set each time, and that his trial was re-set within a reasonable time.

The multiple times that his trial had to be re-set is unfortunate. However, those circumstances were due to COVID-19, something over which neither Crown nor Court had control. [ 55 ] I find that the Crown and justice system reasonably mitigated the delay to Mr. Sharat’s trial proceeding, caused by the COVID- 19 pandemic. The third consideration: what period(

s) of time should be deducted from total delay? [ 56 ] Courts have taken different approaches in determining when to start and when to end the calculation of delay attributable to COVID-19 court shutdowns that have required adjournments of trials. [ 57 ] In R. v.

Simmons , 2020 ONSC 7209 , it was held that the appropriate approach was to deduct the entire time from the closure of the courts to the new trial date set due to COVID-19 delay, as opposed to the time when trials have resumed generally after COVID-19 suspensions. [ 58 ] In Boyko , it was held that the only time that should be counted as exceptional delay was from the date the trial was set until the date when the court “re opened” to hearing out of custody trials. [ 59 ] In R. v.

Loiacono 2021 ABPC 251 at para 35 , that court deducted the entire time from the originally scheduled trial date that had to be adjourned due to COVID-19 restrictions, to the anticipated end of the re-set trial, as a discrete exceptional event. [ 60 ] In Hanakowski, the Court calculated the discrete periods of time to be deducted from overall delay due to COVID-19 from the time the trials would have happened but for the COVID-19 related adornment and the earliest offered trial date for the re set date. [ 61 ] In Folster , the Court deducted the period of time between when the court sittings were cancelled (as opposed to the trial date which was asset for after the closure) until the rescheduled date for trial. [ 62 ] In Pierpoint , a very recent decision of the Manitoba Court of Queen’s Bench, there had been no adjournments of the trial.

The matter had come before the courts just as the pandemic began. The Court deducted as being attributable to exceptional circumstances the total of five months of COVID-19 closures to out of custody trials. [ 63 ] In my view, the most logical approach for matters like Mr. Shamrat’s, where trial dates were set and then adjourned due to the COVID-19 court closures to out of custody trials, is the one followed in Hanakowski. That is, the periods of time to deduct for COVID- 19 caused delay, is the time between each trial set and the first available date offered by the Crown for a new trial date. Mr.

Shamrat’s matter was not actually impacted before his scheduled trial date. On the other end, just because the court “re-opened” to hearing out of custody trials, did not mean that a judge, court and counsel could all reasonably be expected to be available on that first day of “re- opening”. [ 64 ] In Mr. Shamrat’s case, the unfortunate reality is that not only his first trial set for May 4, 2020, but also each of his rescheduled trials (but for the pending trial on June 27 and 28, 2022) fell into a window of time that out of custody trials were not proceeding due to

the COVID-19 restrictions. The result has been a series of delays, punctuated by reasonable efforts made by counsel and the justice system to move his matter to trial, demonstrated by the quick re-setting of trial dates within a reasonable time of the necessarily adjourned trial. [ 65 ] While the amount of delay due to what I have found to be exceptional circumstances, reasonably mitigated, is significant, and frankly more than in any of the cases I reviewed, the reality is that there were waves of the COVID-19 pandemic. The Court responded to each wave with restrictions. Mr.

Shamrat was unlucky enough to have each of his rescheduled trial dates fall within one of the “shut down” periods for out of custody trials. The length of the aggregate delay does not change the fact that it was all due to exceptional circumstances which I have found were reasonably mitigated. The Supreme Court of Canada could have, in Jordan or subsequently, but has not, put a cap on a length of delay due even to reasonably mitigated exceptional circumstances that is unreasonable merely due to length of delay. [ 66 ] Mr. Shamrat argues the delay has prejudiced him in a particular way.

The Jordan framework builds in prejudice considerations in the presumptive ceiling, such that prejudice, in the context of a specific case, is not part of the s. 11(

b) Charter analysis. [ 67 ] I find that the sum of the six periods I have identified as discrete exceptional circumstances totals 733 days, or just over 24 months. Twenty four months is to be deducted from overall delay.

RESULTING CALCULATION [ 68 ] When the delay attributable to exceptional circumstances (24 months) is deducted from net delay of 32 months, the remaining delay is eight months. [ 69 ] Because the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [ 70 ] Defence did not assert unreasonableness but for the COVID-19 related court imposed restrictions. I find no basis to say that the delay of eight months is unreasonable. CONCLUSION AND DECISION [ 71 ] There has been no breach of Mr. Shamrat’s s. 11(

b) Charter right. [ 72 ] There is accordingly, no basis for the Court to stay proceedings. [ 73 ] Mr. Shamrat’s application is dismissed. “Original signed by” Carlson, P.J.