Defendants considering appeal of ONCA decision, lawyer for one says
The Court of Appeal for Ontario has overturned lower court rulings that stayed charges against three defendants facing crimes relating to human trafficking and possession and use of a firearm. It ruled in favour of the Crown’s argument that the trial judge “failed to take into account” the systemic disruptions in the court system, which delayed their trials during the height of the pandemic.
“We agree with the Crown’s approach,” the three-member panel, made up of justices Peter Lauwers, Gladys Pardu, and Mary Lou Benotto, ruled in a decision released in June.
However, Anser Farooq, the lawyer for one of the defendants, Atrooba Mughal, says an appeal is being considered. “We respect the decision, he said, “however, we disagree with the courts analysis of the delay as it relates to [his client’s] circumstances.”
In the R. v. Agpoon decision, the appeal court noted that the trial judge who stayed the charges should have considered the “entire time period” of 14 months (between March 17, 2020, when the pandemic was declared, and May 19, 2021, when the Crown decided to proceed with the case by direct indictment) as one “discrete exceptional circumstance” in calculating delays according to Jordan principles.
This was significantly longer than the three months delay the trial judge used for two defendants and three months and 19 days for the third.
Using this 14-month exceptional circumstance, the appeal court ruled all three cases “would have come in under the Jordan presumptive ceiling” – 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice.
“There was no reasonable basis on which the trial judge could reduce this time frame, and she erred in doing so,” the appeal court decision, written by Justice Lauwers, states. “It represented the earliest possible date the matter could have proceeded.”
The appeal court noted that a person charged with an offence has the right “to be tried within a reasonable time” according to s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated, the remedy is a stay of the charges.
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With R. v. Jordan, 2016 SCC, the Supreme Court of Canada outlined how lower courts must assess delay in determining whether the right to be tried within a reasonable time has been violated and whether charges should be stayed.
In this Ontario appeal court ruling, the panel pointed out that while Jordan was not written with a phenomenon like a pandemic in mind, its principles are adaptable in that it recognizes that delay attributable to “exceptional circumstances” could be acceptable.
It added the trial judge observed correctly that numerous rulings have considered the impact of the global pandemic as a “compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.”
However, “while we agree with the trial judge that the pandemic constituted a discrete exceptional circumstance, in our view, she did not adequately account for it. She should not have stayed the prosecutions.”
The appeal court also noted the Jordan decision discouraging “complicated micro-counting” in determining delay, something particularly important to consider in the context of the pandemic. It pointed to the Jordan decision saying, “Trial judges should not parse each day or month… [but] should step back from the minutiae and adopt a bird’s-eye view of the case.”
In this case, Mughal and Patrick-Adrian Agpoon were charged in December 2018, and Shea Flemmings was added in December 2019. The three respondents were before the Ontario Court of Justice until the Crown preferred a direct indictment on May 19, 2021, shortly before the preliminary hearing, set to begin on May 31, 2021. The case moved to the Superior Court of Justice on May 26, 2021.
In staying the charges against the three defendants, what was common to all of them, the appeal court said, was the trial judge’s decision to fault the Crown for its delay in preferring a direct indictment and her method of determining the amount of Crown delay to attribute towards meeting Jordan principles.
The trial judge, Janet Leiper, calculated the delay for Agpoon’s case, before accounting for the pandemic, as 51 months delay, then subtracted 11 months and four days defence delay, for a total of 39 months and 26 days.
For Flemmings, before accounting for the pandemic, she calculated the delay as 38 months and 28 days, then subtracted four months and 25 days of defence delay for a total of 34 months and three days.
Justice Leiper then deducted three months from Agpoon and Flemming’s delays because the Crown decided to prefer a direct indictment. The adjusted delay was 36 months and 26 days for Agpoon and 31 months and three days for Flemmings, both above the Jordan threshold.
For Mughal, the trial judge calculated the delay before accounting for the pandemic as 51 months, minus three months, 29 days of defence delay, for a total of 47 months, one day.
She then deducted three months and 19 days to account for the Crown’s preference to proceed by direct indictment and subtracted an additional nine months for “jury blackout periods.” This accounted for periods of varying lengths between March 17, 2020, and February 29, 2022, when juries were unavailable.
The result was an adjusted delay of 34 months and 12 days for Mughal. This still exceeded the Jordan threshold and breached Charter rights, resulting in a stay.
However, the Crown successfully argued to the appeal court that had the 14 months been applied, rather than the three months she deducted for Agpoon and Flemmings, and the three months and 19 days she removed for Mughal, all three cases would have come in under the Jordan threshold.
As a result of the decision to treat the entire 14-month period as a discreet exceptional circumstance, the appeal court said it didn’t have to address the Crown’s second argument that the trial judge erred in failing to include the jury blackout periods in the Agpoon and Flemmings’ applications as discrete exceptional circumstances, as she did in the Mughal application.
It was also unnecessary, it ruled, to address the Crown’s third argument that Justice Leiper erred in her approach to the Crown’s decision to prefer an indictment instead of proceeding with the preliminary inquiry, given that it decided to treat the entire 14 months as a discreet circumstance.
“The Crown’s decision to prefer a direct indictment in this matter, even at a late stage, did not affect this pandemic-related delay,” the court said.
“It is easy to be critical of decisions made by the Crown with the benefit of hindsight. At the height of the pandemic, it would have been very difficult to predict the impact on the courts’ capacities from week to week and to make plans for the continuation of matters.”
However, lawyer Farooq said Justice Leiper “did a detailed analysis of the timeframe - apparently not necessary according to the Court of Appeal.” He added the appeal court was “not prepared to look behind the timing of the indictment.”
It is Mughal’s position, Farooq said, that at minimum “there ought to have been an affidavit from the [Crown attorneys] handling the case explaining the delay.
“The Court of Appeal gave no weight to [Mughal’s] position that the crown possibly let this one slip through the cracks,” he said, noting her defence argued that there was evidence that a trial could have been heard earlier, but “the court of appeal rejected that.”