R. v. D.S, 2021 NLSC 157

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.S . , 2021 NLSC 157 Date : November 29, 2021 Docket : 201904G0179 Her Majesty The Queen v. D.S. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 16, 2021

Summary: The accused’s application for a stay of proceedings on the grounds that his right to be tried within a reasonable time, as enshrined in s. 11 (

b) of the Charter , was dismissed. The prospective end of the accused’s trial is 10 December 2021, 33 months and 5 days after he was charged. There were no deductions for defence delay. However, the closure of the court in March 2021, in response to the COVID-19 pandemic, was an exceptional circumstance, the effect of which was to reduce the overall delay by 9 months and 4 days, for a net delay of 24 months and 1 day. This delay was presumptively reasonable and the presumption was not rebutted. Appearances:

Jeffrey C. Young Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of the Accused/Applicant Authorities Cited: CASES CONSIDERED: R. v. D.S., 2021 NLSC 25 ; R. v. D.S. , 2021 NLSC 69 ; R. v. Jordan , 2016 SCC 27 ; R. v. Cody , 2017 SCC 31 ; R. v. King , 2018 NLCA 66 ; R. v. Schardt , 2021 ONSC 3143 ; R. v. Gharibi , ONCJ 63; R. v. Mohamed Ali and Everton Ambrose , 2021 ONSC 4751 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Burrage, J. : background [ 1 ] On 7 March 2019 the Applicant was arrested and charged with various counts of sexual assault, assault and damage to property, contrary to sections 271(1) , 266 and 430(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 , respectively. The following day, while in custody, a second Information was laid alleging additional offences contrary to section 271(1) of the Criminal Code . [ 2 ] The prospective end of the Applicant’s trial is 10 December 2021, 33 months and 5 days after he was first charged. The Applicant now seeks a stay of proceedings pursuant to s. 24 (1) of the Canadian Charter of Rights and Freedoms [1] , (the “ Charter ”) on the grounds that his right to be tried within a reasonable time, as guaranteed by s. 11(

b) of the Charter , has been infringed. [ 3 ] Both the Crown and defence agree that the following timeline, as compiled by the defence, represents an accurate overview of the events to date. To this overview I have added several dates in bold, which while not appearance dates, are nevertheless relevant to this decision. Appearance Date Delay Reason/Result March 7, 2019 - First Appearance. Information is sworn on this date. Accused is remanded in custody by consent for bail hearing on March 11, 2019. March 11, 2019 4 days Set over for status. Accused remains on remand.

March 12, 2019 1 day Accused released on Recognizance by consent. Matter adjourned pending disclosure and Crown Election. April 2, 2019 22 days Set over pending Crown election and additional disclosure May 7, 2019 36 days Crown elects to proceed by Indictment.

Matter is adjourned to set a date for the preliminary inquiry on Defence undertaking to file s. 536 Notice by May 10, 2019 May 10, 2019 3 days Set over for Preliminary Inquiry on August 2, 2019 July 17, 2019 69 days Hearing on Crown Application seeking admission of statements at preliminary inquiry pursuant to s. 540(7) July 25, 2019 7 days Decision on s. 540(7) Application – statements admitted July 30, 2019 5 days Preliminary Inquiry waived in light of decision on s. 540(7) Application. September 9, 2019 42 days Trial date set (April 6-8, 2020).

Pleas not entered as Designation of Counsel not filed and accused not present. Pleas to be formally entered at next appearance. December 4, 2019 87 days Arraignment/Pre-Trial Conference. Not guilty pleas entered to all charges. Further pre-trial conference date set (February 6, 2020) pending appointment of trial judge and filing of s. 276 application required to be brought before trial judge.

February 6, 2020 65 days Pre-Trial Conference. Court alerts counsel that matter may not be able to proceed to trial on April 6-8, 2020 due to issues with the Court’s calendar/appointment of new Justice. Matter set over for status. February 26, 2020 20 days Court advises there is no Judge available to preside over the trial set for April 6-8, 2020 and trial must be postponed. Trial postponed to December 14-16, 2020; s. 276 application to be heard November 6, 2020; case management set for September 14, 2020 to confirm trial date/status of appointment of trial judge.

September 14, 2020 202 days Case management re status of trial date. Court advises that trial judge has not been appointed and trial will have to be postponed. Crown and Defence oppose postponement. Trial postponed to March 2-4, 2021; s. 276 application to be argued on February 5, 2021. March 18, 2020 Court issues Notice suspending all regular operations until further notice in response to the COVID-19 pandemic. September 14, 2020 Criminal trials resume. February 5, 2021 145 days Hearing on stage 1 of s. 276 Application. Court reserves decision and adjourns matter sine die .

Registry to contact counsel when decision is ready. 13 February 2021 Court issues Notice suspending all normal operations for the week of 15-19 February 2021 in response to the COVID-19 pandemic 16 February 2021 Defence counsel inquires of Court Registry if the trial scheduled for 2 March 2021 will be proceeding, and is advised that it will be postponed. 18 February 2021 Court issues Notice suspending all criminal trials scheduled for March 2021 in response to the COVID-19 pandemic. February 23, 2021 - Court releases decision on stage 1 of s. 276 Application. March 2, 2021 26 days Case Management.

Stage 2 of s. 276 Application set for April 20, 2021. Trial postponed. Parties ask to set new trial date today. Court advises that Registry will contact counsel with the earliest date in the fall for trial. Matter set for March 31, 2021 for Case Management. March 31, 2021 30 days Case Management re issues for s. 276 hearing. Registry had not provided new trial dates to that point. Parties agree to set new trial dates. [The Court offers 17-21 May for trial.

Crown available but defence not due to prior commitments.] Both Crown and Defence available in the fall on any date, except Defence unavailable 4 days in October and 3 days in November. Court advises clerk to check with Registry in St. John’s to set new trial date. April 20, 2021 21 days S. 276 Application. Hearing on whether certain evidence admissible at the s. 276 hearing. Hearing on merits of s. 276 Application adjourned to May 18-19, 2021. May 18, 2021 29 days Hearing on stage 2 of s. 276 Application. Court reserves decision and adjourns sine die .

May 26, 2021 Court releases decision on stage 2 of the 276 application. May 31, 2021 14 days Registry contacts counsel via email to set new Trial date. [Dates of 13, 29 September and 6, 13 December 2021 offered.] Trial set for December 6-10, 2021. December 10, 2021 194 days Prospective end date of trial. TOTAL 1010 (33 months, 5 days) [ 4 ] On 9 September 2019 the Applicant’s trial was scheduled for 6-8 April 2020. However, on 26 February 2020 the Court advised that since there was no judge available the trial would be postponed. The trial was then scheduled for 14-16 December 2020.

An application under s. 276 [2] of the Criminal Code , brought by the Applicant, was scheduled for 6 November 2020 and a case management was scheduled for 14 September 2020, to confirm the trial date and status of the appointment of a trial judge. [ 5 ] On 18 March 2020, the Court issued a Notice to the Profession and General Public suspending all regular operations until further notice. All criminal, family and civil matters scheduled to be heard after that date were adjourned without the parties having to attend Court.

The Notice was in response to the COVID-19 pandemic and stands as the first of many Notices issued by the Court since that time. [ 6 ] At the 14 September 2020 case management the trial, as scheduled for 14-16 December 2020, was again postponed over the objections of both Crown and defence, once again due to the unavailability of a trial judge. A new trial date was set for 2 March 2021

with the defence s. 276 application scheduled for 5 February 2021. The Court explained that it had no earlier dates to give because of the disruption in scheduling caused by the COVID-19 pandemic. [ 7 ] On 5 February 2021 a hearing was held by videoconference on stage 1 of the s. 276 application. The Court reserved its decision. [ 8 ] On 13 February 2021 the Court issued a Notice to the Profession and General Public, suspending all normal Court operations for the week of February 15-19, 2021.

The Notice was in response to an increasing number of COVID-19 cases in the Province and the Special Measures Order (General – Alert Level 5) issued on February 12, 2021. All criminal, civil and family matters scheduled for the week of February 15-19, 2021 were adjourned, without the parties having to appear. [ 9 ] On 16 February 2021 the Applicant’s counsel contacted the Court by email to inquire if the trial scheduled for 2-4 March 2021 would be proceeding. At that time the Court’s decision on stage 1 of the s. 276 application was still under reserve.

Counsel explained that the Applicant resides in Nova Scotia and in order to comply with the province’s travel restrictions would need to self-isolate for 14 days prior to his trial. This meant that he would need to be in this province by the following day. Court administration responded that afternoon to say, “The trial will not proceed on March 2nd.

I will be in touch to arrange a Case Management for early March, if COVID restrictions permit.” [ 10 ] On 18 February 2021 the Court issued a further Notice to the Profession and General Public, inter alia , postponing all criminal trials set to begin in March 2021, unless the presiding judge were to direct that the trial proceed by videoconference. This Notice, as with its predecessors was in response to the COVID-19 pandemic.

The Notice further advised that all postponed trials will be rescheduled as soon as possible. [ 11 ] On 23 February 2021 the Court released its decision on stage 1 of the s. 276 application, permitting the application to proceed to a stage 2 hearing ( R. v. D.S., 2021 NLSC 25 ). [ 12 ] On 2 March 2021, a case management was held and the date of 20 April 2021 was set for the hearing of stage 2. A further case management was scheduled for 31 March 2021. [ 13 ] At the 31 March 2021 case management certain evidentiary matters regarding the s. 276 application were discussed.

The Court then proposed the week of 17-21 May 2021 for the trial. The Crown was available, but due to prior commitments the defence was not. As the Court was then unable to find acceptable dates it was agreed that the new trial date would be set administratively. [ 14 ] Stage 2 of the defence s. 276 application proceeded as scheduled, by way of videoconference, on 20 April 2021. The Court reserved its decision. [ 15 ] On May 26, 2021 the Court released its decision regarding stage 2 ( R. v.

D.S. , 2021 NLSC 69 ). [ 16 ] Following an exchange of emails with counsel, the Court administration proposed alternative dates for the trial; the weeks of September 13, 29, December 6 and 13, 2021. The Crown responded that it was available on any of those dates. The defence responded that the week of 6 December 2021 was the earliest it was available. The trial is now scheduled to commence on that date. THe Legal TEST [ 17 ] Under the framework in R. v. Jordan , 2016 SCC 27 the Court must first conduct an initial calculation of the total delay, from the date of the charge to the anticipated end of the trial.

In calculating the total delay the Court is to deduct any portion of time that has been waived, or is attributable solely to defence conduct. The waiver can be explicit, or implicit, so long as it is clear and unequivocal and made by the accused with full knowledge of its effect. For trials in the Superior Court, the net delay is presumptively reasonable if it is less than 30 months and presumptively unreasonable if it is longer.

If the delay is presumptively unreasonable the onus shifts to the Crown to rebut the presumption by establishing the presence of exceptional circumstances. the issueS [ 18 ] There are two issues at play

(1) Whether there are any deductions from the total delay attributable to defence conduct and, if so, whether the resulting net delay is presumptively reasonable, or unreasonable, as the case may be.

(2) If the resulting delay remains greater than 30 months, whether there was an exceptional circumstance in the form of a discrete event, namely delay attributable to closure of the Court in response to the COVID-19 pandemic. Was there Delay Attributable to Defence Conduct? [ 19 ] In R. v. Cody , 2017 SCC 31 the Supreme Court of Canada had the following to say regarding defence delay (at paras. 28-30): 28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" ( Jordan , at para. 113 ).

It applies to any situation where the defence conduct has "solely or directly" caused the delay ( Jordan , at para. 66 ). 29 However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case ( Jordan , at para. 65 ; see also paras. 53 and 83).

For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted ( Jordan , at para. 65 ).

30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan , the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" ( Jordan , at para. 63 ). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted ( Jordan , at para. 64 ).

These examples were, however, just that — examples. They were not stated in Jordan , nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan , it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64). [ 20 ] There is no evidence of a defence waiver, or evidence to suggest that defence counsel engaged in trial tactics calculated to delay.

Indeed, none are alleged by the Crown. [ 21 ] Nor is there any suggestion that the s. 276 application brought by the defence was frivolous, or untimely. I observe that it was originally scheduled to be heard on 6 November 2020, in anticipation of the 14-16 December 2020 trial dates. [ 22 ] Rather, the sole consideration is whether any delay should be deducted due to the fact defence counsel was unavailable on the dates offered in May, and September 2021. [ 23 ] I am guided in answering this question by our Court of Appeal in the post Jordan decision of R. v. King , 2018 NLCA 66 .

In that case Justice Barry stated (at para. 108): 108. The Coughlan

article discusses the significance since Jordan of defence counsel passing up a date. It notes the comment in the pre-Jordan decision of R. v. Godin , where the accused was found not to be obliged to accept the very first date offered: While scheduling requires reasonable availability, and reasonable cooperation, it does not require defence counsel to hold themselves in a state of perpetual availability for s. 11(

b) purposes. I accept that this common sense approach of Godin still applies after Jordan . I expect, however, that prosecutors will be more inclined to ask for defence waivers now before agreeing to lengthy postponements. [ 24 ] Applying this common sense approach leads me to conclude that defence counsel’s unavailability in May 2021 and September 2021 should not be deducted from the overall delay. By March 2021 defence counsel had rearranged his

schedule to accommodate not one, but three separate trial dates. His unavailability due to other commitments is understandable and reasonable and does not qualify as defence conduct for the purpose of calculating net delay. [ 25 ] That is not to suggest that defence counsel can continue to “rag the puck” until such time as the 30 month period has run and then pounce. However, there is no evidence to suggest such a tactic on the part of the defence in this case.

I observe as well that over both the defence and the Crown’s objection, the trial was postponed on two prior occasions due to the unavailability of a trial judge. [ 26 ] I would therefore not deduct time from the 33 months and 5 days attributable to defence conduct. The delay thus exceeds 30 months and remains presumptively unreasonable. Was Delay Attributable to the COVID-19 Pandemic? [ 27 ] The Crown may rebut the presumption of unreasonableness by showing that the delay is the result of exceptional circumstances.

Such circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable and

(2) Crown counsel cannot remedy the delays emanating from the circumstances once they arise ( King at para. 125, Jordan , at para. 69 ). [ 28 ] In general, exceptional circumstances fall under two categories; discrete events and particularly complex cases ( Jordan , at para. 71 ). [ 29 ] Both the Crown and defence accept that the within matter is not particularly complex.

I agree. [ 30 ] This leaves the question of whether any delay was caused by a discrete event. [ 31 ] In Jordan the majority had the following to say regarding discrete events (at paras. 72 and 73): 72. … by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition. 73.

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[ 32 ] Thus, discrete events are those that disturb the normal course of the matter and which the prosecutor and defence could do nothing to prevent. They lie outside the Crown’s control as reasonably unforeseen and unavoidable, and the Crown cannot reasonably remedy the resulting delay ( King , at para. 128). [ 33 ] I agree with the observations of T. Nieckarz, J. i n R. v. Schardt , 2021 ONSC 3143 , as relied upon by the defence, that the public health crisis occasioned by COVID-19 qualifies as a discrete event, which resulted in a disruption of Court services beyond anyone’s control.

The global pandemic continues to have a significant impact on the criminal justice system that must be recognized when evaluating and calculating delay ( Schardt , at para. 55 ). In addition, there may be times when the pandemic can impact scheduling in ways that are not always apparent. (See also R. v. Gharibi , ONCJ 63; R. v.

Mohamed Ali and Everton Ambrose , 2021 ONSC 4751 for example.) [ 34 ] I also agree with the defence submission that the focus of the Jordan inquiry is on whether the period of delay was caused by the discrete event ( Jordan , at para. 75 ; Schardt , at para. 68 ). [ 35 ] In this regard, there is no suggestion that the COVID-19 pandemic caused a postponement of the trial dates previously set for 6-8 April 2020, or 14-16 December 2020.

While in April 2020 the Court was not hearing trials due to the pandemic, the trial was postponed on 26 February 2020, before the closure, and due to the unavailability of a trial judge.

Thus, it cannot be said that this delay was caused by COVID-19. [ 36 ] In December 2020 the Court was again hearing criminal matters, with the resumption of criminal trials on 14 September 2020. [ 37 ] This leaves for consideration the delay of the 2 March 2021 trial date. [ 38 ] The defence argues that the delay of this trial date was not caused by COVID-19, as the Court administration advised of the postponement in an email on 16 February 2021, two days prior to the Court’s Notice to the Profession and General Public, postponing all criminal trials set to begin in March 2021.

The defence submits that, in reality the postponement was to accommodate a hearing on stage 2 of the defence’s s. 276 application. Such applications are an inherent part of any case and were taken into consideration by the Supreme Court of Canada in setting the 30-month ceiling ( Cody , at para. 29 ). [ 39 ] The problem with this argument is that as of 16 February 2021 neither the Court administration nor the parties knew there would be a stage 2 of the defence’s application. Rather, the Court’s decision was not released until a week later on 23 February 2021, after the parties were informed of the postponement.

On February 16 the Court administration and the parties thus had no way of then knowing that the s. 276 application would move to a second stage. [ 40 ] On 13 February 2021 the Court suspended all normal operations for the week February 15-19, 2021. It was during this week, on 16 February 2021, at the time of a surge of COVID cases, that defence counsel inquired of the Court administration by email and was informed that the trial scheduled for 2 March 2021 would not be proceeding. [ 41 ] On 18 February 2021 the Court issued a further Notice postponing, inter alia , all criminal trials set to being in March 2021.

This notice, as with the email two days prior, was in advance of the Court’s decision on the s. 276 application. [ 42 ] It is true, as the defence argues, that a postponement of the trial would have been necessary to accommodate stage 2 of the s. 276 application. The fact remains, however, that the delay in the trial scheduled for 2 March 2021 was not caused by the s. 276 application, as the Court’s decision respecting stage 1 of the s. 276 application came later in time. Rather, I would conclude that the cause of the delay was the Court’s closure in March in response to the COVID-19 pandemic.

That a delay caused directly by the pandemic is a discrete event outside the control of the Crown is beyond question. [ 43 ] I am also unable to ignore the fact that on 16 February 2021 the Court was in the midst of a COVID-19 lockdown of operations.

The specter of the pandemic loomed large, and while no specific reason was given for the postponement, COVID-19 was “on the brain”, so to speak, prompting the administration to respond that a case management would be arranged “if COVID restrictions permit.” It is hardly a coincidence that two days later the Court shut down all criminal trials scheduled to begin in March 2021. [ 44 ] In calculating the delay attributable to COVID-19 the Court must scrutinize the efforts made by the Crown to mitigate the delay.

Any portions of the delay which could have reasonably been mitigated may not be subtracted from the net delay. [ 45 ] In this instance, as the Crown was available on the earlier dates offered by the Court, I am satisfied that it could not have otherwise mitigated the delay caused by the Court’s closure in March 2021. [ 46 ] The period of delay from 2 March 2021 to 6 December 2021 is nine months and four days.

When this is deducted from the total delay of 33 months and 5 days, we are left with 24 months and 1 day, below the Jordan threshold of 30 months. [ 47 ] Where the net delay is less than 30 months the onus shifts to the defence to establish that the delay is nonetheless unreasonable. However, stays below the presumptive ceiling will only be granted in the clearest of cases ( Jordan , at para. 101 ). In this instance the defence has not met this onus and I would not regard the delay as unreasonable. disposition [ 48 ] For the foregoing reasons the Application is dismissed.

_____________________________ Donald H. Burrage Justice