R. v. Khan, 2021 ONCJ 195

CITATION : R. v. Khan , 2021 ONCJ 195 DATE : March 31, 2021 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- MUHAMMAD KHAN REASONS FOR JUDGMENT Duncan J. 1 . This is an application under

section 11b to stay charges of impaired and exceed 80 dating from October 2019. The history of the case: 2 . The relevant chronology is as follows: • October 19 2019 – arrested. Released to appear in court November 5. • October 24 – information sworn • November 5 – first appearance – no counsel – adjourned to retain counsel – Self rep Judicial Pre-trial set for February 19 • February 19 – Counsel retained – JPT held – trial estimate for 3 days – Defence advises that there will also be a constitutional issue raised seeking to invalidate certain sections of the drink/drive legislation.

Second JPT date set to deal with issues such as timing and procedure related to that constitutional challenge. • March 6 – second JPT held – trial dates set for May 3,4, 5 2021. Constitutional challenge dates set for July 19 and 20 2021. Earlier trial dates had been offered of June 1-3 2020 and April 28-20 2021 for the trial and July 5, 6 and 12, 13 for the constitutional challenge but the defence was unavailable on those dates. - The Crown at this appearance immediately raised concerns about the trial dates and said it would reach out to the defence to try to find earlier dates.

Crown was prepared to “stack” this case on an already full list and give it priority. Case adjourned to March 20 to see if earlier dates could be found. Covid shutdown occurred in the meantime. - The Crown sent an email to defence counsel advising that it was prepared to stack this case on top of earlier court lists and inviting him to provide a list of available dates. [1] • March 16 – Courts shut down due to covid • March 18 – defence counsel responds to Crown email of March 6. No available dates were provided.

Defence sends another email 30 minutes later saying he understands that no dates are being set at this time. Crown responds confirming that no dates will be set “during the current situation”. [2] • March 20 – first of several 10 week “covid adjournments” • February 8 2021 – 11b application filed. • May 3-5 – anticipated trial dates. • July 20, 21 – anticipated constitutional question hearing dates Exceptional circumstances – Covid 19

3 . In this case, counsel do not agree on anything. They dispute every point of the usual Jordan analysis – start date, end date, total delay, defence delay/net delay, exceptional circumstances. 4 . I am going to deal with this application by going straight to the last issue – exceptional circumstances – because I think it is dispositive [3] .

I will assume [4] that all other points of contention have been decided in the defendant’s favour – that the total delay is calculated by the outer start and end dates (October 19 2019 – July 21 2021) , that there has been no defence delay and that net delay is therefore the same as total delay – 21 months, 2 days. 5 . The application therefore turns on whether there are exceptional circumstances. Jordan defined exceptional circumstances as follows: [69] 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. 6 . Counsel for the defendant acknowledges that the pandemic is an exceptional circumstance, or at least could be, if the Crown can demonstrate that it had some bearing on this case. However, the defence asserts that it did not affect this case – that setting of the trial dates occurred before the shutdown and the scheduled trial dates come after re-opening.

Therefore, it is argued that this case leap- frogged the exceptional circumstance created by the pandemic. 7 . The Crown responds by first reminding us that no case is an island: 27…..No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. [5] 8 .

The Crown submits that the reasonableness of time to trial must be considered in the context of the system as a whole – a system that suffered a major body blow by being shut down completely and partially for a year. 9 . The impact of covid in this jurisdiction was encapsulated in R v Khattra: [6] 62 It is reasonable to take judicial notice that in Brampton, one of the busiest jurisdictions in the country, the unprecedented closure of the courts and suspension of jury selection for months over the course of 2020 and into 2021, has and will have a dramatic effect on the scheduling and completion of criminal cases.

In this regard, I adopt the observations of Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209 , at para 63 : Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed.

Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID- 19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. 10 .

The Crown submits that the bird’s eye view that Jordan encourages us to take, supports the conclusion that 21 months to trial is quite reasonable having regard to these extraordinary circumstances. 11 .

The Crown further advances the interesting idea that the courts (presumably the Supreme Court) should, as soon as possible, extend the Jordan presumptive ceilings in recognition and accommodation of the present situation which of course was never contemplated when the present ceilings were set. [7] Until then, it is urged, the lower courts should accept the covid period as exceptional without requiring a demonstration of case-specific impact. 12 . While I think there is a lot to be said in favour of the Crown’s position, I don’t find it necessary to decide the point.

This is because, in my view, the pandemic did have a direct effect on the time to trial in this case. Pivotal is the Crown’s offer and initiative to find earlier dates and to prioritize this case by stacking it on top of others even if no empty time slots could be found. The Crown being prepared to do this meant that it was almost inevitable that earlier dates would be secured. It was certainly more likely than not that the efforts would have been successful. [8] The only thing that stopped that from happening was the arrival of the pandemic. 13 .

This case is distinguishable from my earlier decision in R v Zahid. [9] There the Crown was only able to claim that it might have gotten around to trying to re-schedule that trial had the pandemic not occurred. It had taken no steps to do so before the shutdown. 14 . As for trying to reschedule this case after the courts began to re-open, the pandemic affected the ability to do this as well. The re- opening was gradual and burdened with the massive task of dealing with the backlog of existing cases coupled with the usual heavy flow of new cases coming into the system.

The Court was obliged to engage in “thoughtful triage” [10] of cases – and it did so. The Ontario Court of Justice as a whole set a six-stage ranking of priorities, starting with in-custody cases in July and moving over time to eventually, by December 2020/January 2021, being able to set trial dates on new cases that had come into the system since the start of the plague. [11] This case did not fit within any of the six stages and had no valid claim to be considered for rescheduling before the higher priority cases. [12] 15 .

I conclude that the pandemic was an exceptional event that had a real impact on the time to trial in this case. It prevented the rescheduling of the trial which otherwise almost certainly could have been accomplished. 16 . Once a relevant exceptional event is found, Jordan describes how it fits into the analysis:

[75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events ( see R. v. Vassell , 2016 SCC 26 , [2016] 1 S.C.R. 625 ).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). 17 . Issues arise in some cases whether the full period of covid or some lesser period should be deducted ( See Simmons supra para 61- 77 ) In this case however, even if it was the minimum period of complete shutdown (March 16 – July 6) that period is 112 days or 3 months and 20 days – enough to bring this case below the presumptive ceiling. 18 .

In the result the delay in this case is below the presumptive ceiling. No case has been presented to bring this case within the sub- ceiling exception. 19 . The 11b application is dismissed. March 31 2021 B Duncan J J Rosenthal for the Applicant/defendant: P Quilty for the Respondent/Crown