R. v. Cox, 2023 NSSC 383

SUPREME COURT OF Nova Scotia Citation: R. v. Cox , 2023 NSSC 383 Date: 20231201 Docket: CRP 525985 Registry: Pictou Between: His Majesty the King Appellant v. Katherine Suzanne Cox Respondent DECISION Judge: The Honourable Justice Jamie Campbell Heard: November 24, 2023, in Pictou, Nova Scotia Counsel: Thomas William Gorman, for the Applicant Brian Casey, K.C., for the Respondent By the Court: [ 1 ] Katherine Suzanne Cox was charged with operating a motor vehicle while her ability to do so was impaired by a drug.

She was stopped by the police on September 2, 2018, and the Information was sworn on October 25, 2018. The matter was scheduled to go to trial in June 2023. Counsel for Dr. Cox filed a motion under

Section 11(

b) of the Charter alleging unreasonable delay. The motion was heard on June 20, 2023, before The Honourable Judge Bryna Hatt of the Nova Scotia Provincial Court. The judge issued a decision on July 20, 2023, ordering a stay. It is from that decision that the Crown has appealed. Decision on the Motion [ 2 ] It took almost 5 years for the case to get from charge to trial. The judge found that 1,699 days (56 months and 3 days) had elapsed from the time the Information was sworn until the trial date. Dr.

Cox changed counsel during that time, and she did not contest that she was responsible for the delay from August 28, 2019 to December 22, 2020. That was a period of 482 days. She broke her pelvis so that the trial scheduled for April 8, 2021 had to be adjourned. She was responsible for the delay from then until January 20, 2022. That was 287 days. Judge Hatt found that the delay attributable to the defence amounted to 769 days or 25.3 months.

The defence delay was subtracted from the total delay of 1,699 days for a “net delay” of 930 days, or 31 months and 3 days. [ 3 ] Her Honour held that because the net delay exceeded the presumptive ceiling of 18 months the onus was then on the Crown to rebut the presumption that the delay was unreasonable. Crown and defence agreed that the key time and the focus of the appeal is the time from January 20, 2022 through to June 20, 2023. January 20, 2022 was when the trial was adjourned because the courts were at that time under a shutdown for in person appearances. The trial was rescheduled to June 20, 2023.

[ 4 ] The judge found that there had been no defence delay during that period. She acknowledged that COVID-19 was a “discrete event” so that the Crown would have to show that the Crown, including the justice system, took reasonable steps to address the delay. Her Honour noted that while the courts were shut down for in person appearances from January 20, 2022 (the date of the adjourned trial) until February 11, 2022, there was nothing that either Crown or defence could do to prioritize this matter.

She said that when the courts were reopened as of February 12, 2022, the analysis shifted to what the Court and the Crown could have done to have mitigated the delay, how cases were managed or prioritized, and how Dr. Cox’s case was prioritized. In Provincial Court priority is give to people in custody, followed by youth matters and other cases are bumped to allow for custody or youth matters to come to the front of the line. There is a requirement to perform the same or similar exercise for cases that are vulnerable due to delay.

Cases that are nearing the Jordan time period are prioritized. [ 5 ] Judge Hatt found that the Crown had not shown that it had performed that analysis to ensure that Dr. Cox’s trial was brought to trial within reasonable time. She considered the report provided by the Crown containing a

summary of the age of the different matters before the Court in Pictou. Dr. Cox’s matter was shown as the eighth oldest matter in the system. The purpose of the list, as the judge described it, was to keep front of mind the Jordan vulnerable matters for both the Court and the Crown. She observed however that matters ahead of Dr. Cox on the list included inactive matters in which the accused was at large. The Information ID was incorrect, the charge was incorrect and the date the Information was laid was also incorrect. Dr.

Cox’s matter, instead of being eighth on the list should have been the second oldest matter on the list and then would have been second only to a person who was listed as being at large. If prioritization and case management had occurred, the judge suggested that Dr. Cox’s matter would have been scheduled earlier or recalled for prioritization. [ 6 ] Judge Hatt noted that from February 12, 2022, through to June 20, 2023, in person trials had resumed. No evidence was provided of efforts by the Crown or the justice system to prioritize this matter.

She said that it seemed reasonable that the matter could have been docketed at any time following January 20, 2022, to try to set an earlier trial date. Efforts could have been made to prioritize it even if that required bumping or triaging a less time sensitive matter. There is no evidence to show efforts to mitigate Dr. Cox’s matter.

It is for this reason I cannot find the full amount from February 11, 2022 to June 20, 2023 as attributed to the exceptional circumstances related to COVID. (Judge Hatt decision, pages 22-23) [ 7 ] As a result, Judge Hatt attributed 9 months and 22 days of the net 31-month 3-day delay to the delay caused by COVID. The 9- month period of COVID delay appears to have been based on a decision of Judge Tufts. The Honourable Judge Alan Tufts concluded that multi-day trials in Pictou had been delayed an additional 9 months because of COVID. Dr.

Cox’s matter was not a multi-day trial so no more than a 9-month delay could be attributed to COVID as a discrete event. Another 22 days were subtracted to account for the time from the adjournment of the trial on January 20, 2022 to the reopening of Court for in person appearances on February 11, 2022. [ 8 ] The delay from Information to the scheduled commencement of the trial was 1,699 days or 56 months and 3 days. The delay attributable to the defence was set at 769 days. The net delay was 930 days. Of that 930 days 9 months and 22 days were attributable to COVID as a discrete event.

That left 634 days or 21 months. That exceeded the 18-month ceiling. The Crown did not offer evidence to show that reasonable steps had been taken to mitigate the delay by prioritizing the case. Judge Hatt stayed the charge. Grounds of Appeal [ 9 ] The Crown has appealed the decision alleging that the judge erred in law in directing the stay, made findings of fact that were not supported by the record and misapprehended the facts when applying the law. The Crown further says that the trial judge made a palpable and overriding error in not evaluating the conduct of the defence and the timing of the filing of the

Section 11(

b) delay application and in finding that defence counsel unavailability for trial in March and April of 2023 was not defence delay when both the Court and the Crown were available. Standard of Review [ 10 ] Appeals from decisions on delay motions attract their own standard of review as set out in R. v. Ellis , 2020 NSCA 78 , and as succinctly summarized by my colleague Justice Brothers in R. v. Robb , 2023 NSSC 313 . [ 11 ] The first stages of the analysis, which involve the characterization of the delay, the attribution and/or the deduction of delay attracts the standard of deference.

That means that the decisions of the judge deciding the motion on the issues of how long the delay has been and how that delay is calculated, including the reasons for the delay, are decisions that the trial judge is best positioned to make. The final stage is the determination of whether the total delay was unreasonable. That decision by the judge hearing the motion does not attract the same deference.

That is assessed on the standard of correctness. [ 12 ] Those two standards of review in this case mean that Judge Hatt’s calculation of the total delay and the way she attributed the delay are entitled to deference from a reviewing court. Her decisions to attribute a portion of the delay to the discrete event of COVID and the decision not to attribute delay during that period to defence, are entitled to deference. Only the issue of whether the delay of 634 days was unreasonable in the circumstances, is subject to review on the correctness standard.

Evidence of Priority [ 13 ] The Crown argues that the judge was wrong to place an onus on the Crown to show that it had given priority to Dr. Cox’s case because there is a requirement in law for the defence to be proactive as well. The Crown says that the Judge Hatt did not put defence behaviour under any manner of scrutiny when the delay application had been brought in the wake of significant delay attributed solely to Dr. Cox. [ 14 ] R. v. Jordan , 2016 SCC 27 , imposes an obligation on the Crown and the Court to take reasonable steps once “the ceiling” is breached.

The Supreme Court noted that it is not enough for the Crown at that stage to point to past difficulty. It must “show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” (para. 70). Those efforts might include prompt resort to case management processes to seek the assistance of the Court or seeking assistance from the defence to streamline the case. They may include things like co-ordinating pre-trial applications or using other procedural means to move the case forward. The

Crown does not have to show that the efforts were successful but “just that it took reasonable steps in an attempt to avoid the delay”(para 70). [ 15 ] Discrete delay, caused by a situation like COVID, is subtracted from the total delay unless the Crown could have done something to have mitigated it. Both the Crown and the justice system are under an obligation to be prepared to mitigate the 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” (para 75).

So, any portion of the delay arising from an event like COVID, that the Crown or the justice system could have reasonably mitigated, is not subtracted from the total delay. [ 16 ] The Crown argues that R. v. K.J.M. , 2019 SCC 55 , places an onus on defence as well to be proactive. The Supreme Court addressed the culture of complacency toward delay identified in Jordan and said that all participants in the system must take a proactive and cooperative approach with a view to fulfilling the important objective of

Section 11(b). The Crown argues in this case that the judge placed that burden squarely on the shoulders of the Crown. [ 17 ] K.J.M. dealt with situations in which the amount of delay was below the ceiling and a motion was made on the basis that the case had, nevertheless been unreasonably delayed. The Court in Jordan said that below the presumptive ceiling, in clear cases, the defence may still show unreasonable delay if it can establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonable should have.

That requirement of showing a sustained effort to expedite the proceedings applies when the defence is arguing for a stay when the delay is less than the 18-month presumptive ceiling. [ 18 ] In this case, Judge Hatt calculated the total delay. She calculated defence delay at 25.3 months, accounting for the time when Dr. Cox changed legal counsel and had broken her pelvis. Obviously, that was not an issue of “fault”, but the analysis is not fault based. When that delay was subtracted from the total the net delay was 930 days. That was above the presumptive ceiling of 547 days (18 months).

Judge Hatt was then required to determine whether the Crown had discharged its burden to show that it took reasonable steps to expedite the proceeding, after making allowances for the discrete delay caused by COVID. She followed the analysis set out in Jordan , at para. 105 . The presumptive ceiling for cases in Provincial Court is 18 months. Once that ceiling is exceeded, the burden then shifts to the Crown to rebut the presumption of unreasonableness based on exceptional circumstances.

Those would be circumstances outside the control of the Crown that could not reasonably have been foreseen or avoided and could not be reasonably remedied. If the exceptional circumstances relate to a discrete event like COVID, the delay attributable to that event is subtracted.

If the delay is below the 18-month ceiling, the defence may still show unreasonable delay if it can establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. [ 19 ] Jordan places an onus on the Crown when the delay in a case exceeds the ceiling. That was precisely what Judge Hatt quite properly did. January 20, 2022 to June 20, 2023 Delay [ 20 ] The Crown says that Judge Hatt attributed a portion of the delay between January 2022 and June 2023 to the Crown and did so improperly.

The attribution of the delay by the trial judge is subject to a standard of deference. [ 21 ] That was the period during which the courts were dealing with shutdowns and restrictions related to the COVID-19 pandemic. The Court was closed to in person trials from December 31, 2022 to February 11, 2022. Dr. Cox’s trial was rescheduled on January 20, 2022. When that happened, the case was already significantly delayed. It was vulnerable to a delay argument at that time.

The issue was whether other matters should or could have been rebooked to allow this trial to go ahead. [ 22 ] The Crown did not lead any evidence before Judge Hatt to establish that June 20, 2023 was the earliest possible date and that the only trials that took precedence over it were older, were youth trials, or were trials for people in custody. There was no evidence to show the efforts made by the Crown to triage cases and bring the priority cases forward. In R. v.

Burkhardt , 2023 NSSC 4 , Justice Gogan analyzed the caselaw related to COVID delay and said that pandemic related events must be the cause of delay and “the Crown must address its efforts to mitigate” (para. 60). [ 23 ] Clearly the Crown is in a position to review the docket and determine what cases are “ Jordan vulnerable” and is in a position to seek adjournments of less pressing matters to allow long delayed cases to go to trial. The defence is not able to do that. [ 24 ] Judge Hatt had no evidence to allow her to conclude or to make the reasonable inference that the Crown had taken any steps of that kind.

She allowed 9 months of COVID delay based on Judge Tufts review of the Pictou Provincial Court docket. In that case Judge Tufts determined that the average delay to multi-day trials in Pictou County was a result of COVID was 9 months. It was an estimate, not an exact calculation. Judge Hatt reasonably determined that if 9 months were the average for multi-day trials no more than that amount should be allowed for trials that could be complete in one day or less. She relied on the 9 months of additional delay caused by COVID and added another 22 days to reflect the delay of Court reopening.

Of the total delay of 31 months and 3 days, 9 months and 22 days were attributable to the discrete event of COVID. [ 25 ] That was a decision that was within the judge’s discretion to make.

She decided to accept that 9 months of the delay was caused by COVID, and the rest was attributed to the Crown because once the delay had exceeded the 18-month ceiling, it was for the Crown to show what it had done to move the matter along by prioritizing it. [ 26 ] The Crown has suggested that the unavailability of defence counsel on both March 30, 2023 and April 5, 2023, should mean that the delay is attributable to the defence. Judge Hatt noted, correctly, that she was not required to treat counsel’s unavailability as defence delay. In this case the trial had been scheduled.

There is no requirement for counsel to keep dates after that trial open to accommodate the potential need for dates in the event that it was adjourned. [ 27 ] There is no palpable and overriding error, or any error for that matter, in Judge Hatt’s decision to attribute 9 months and 22 days of the 17 months from January 20, 2022 to June 20, 2023 to COVID-19 as a discrete event. “Clean Hands”

[ 28 ] The Crown has argued that a “contextual analysis” is required. Counsel notes that when the Crown or the justice system do not come to Court “with clean hands” when responding to a

Section 11(

b) application that is part of the context to be considered and in this case the Crown has “clean hands”. Crown counsel asked rhetorically how the situation got to the point when 5 previous trial dates were lost and 64 days before the sixth trial date a

Section 11(

b) application was made. [ 29 ] Jordan is not about fault or blame. In this case, once the determination was made that the case had gone beyond the presumptive ceiling of 18 months, the Crown had an onus to show evidence of what it had done to prioritize the case. It is not an allegation of bad faith because it is not about good faith or bad faith. It is about whether the delay was reasonable. [ 30 ] In this case, Judge Hatt addressed the issue of the timing of the application.

It was made within the required time, 60 days before the trial. [ 31 ] Judge Hatt did not address issues of clean or unclean hands because the precise issue before her related to the reasonableness of delay. [ 32 ] The reference to the equitable doctrine of “clean hands” was counsel’s way of arguing for a consideration of the big picture. After the arithmetic of Jordan is done, it is still necessary to step back and consider whether this delay was unreasonable having regard to the context in which the delay arose. It is after all not just an accounting exercise.

And, once the math has been done, the judge still has to get that judgement call right. [ 33 ] In this case, Judge Hatt did not treat the matter purely as accounting exercise. She did assess the evidence methodically, and attributed delay reasonably. In particular, she found that some COVID delay was attributable as Crown or systemic delay because there was no evidence of prioritization. At that stage the judge was then left with a case for which the delay was presumptively unreasonable. She considered the full context and determined correctly that the delay was unreasonable.

Conclusion [ 34 ] The calculation of delay and the attribution of that delay under Jordan are decisions that the trial judge is best positioned to make, and which should be reviewed under the standard of deference. The judge’s calculation of delay and the way in which she attributed that delay were reasonable. She decided that the case had exceeded the 18-month presumptive time frame and following Jordan placed the onus on the Crown to rebut the presumption of unreasonableness based on exceptional circumstances.

She acknowledged that COVID was outside the Crown’s control and was not reasonably avoidable as a discrete event. She properly considered whether there was evidence before her of the efforts the Crown and the justice system had made to mitigate the effects of COVID-19. There was none. [ 35 ] The appeal is dismissed. Campbell, J.