Court rejects argument portion of delay attributable to COVID pandemic
The Court of Appeal for Ontario dismissed a Crown appeal confirming a man’s stay on drug trafficking charges because of an unconstitutional trial delay.
The respondent in the appeal successfully argued at trial that their right to be tried within a reasonable time, under s. 11(b) of the Charter had been violated because the time between the laying of charges and the anticipated end of the scheduled trial was 56.5 months. The application judge decided that 35.5 months was attributable to institutional delay. R. v. Jordan, 2016 SCC 27 established a presumptive ceiling of 18 months for provincial court cases and 30 months for trials in a superior court. A trial delay exceeding those limits is an unreasonable delay under s. 11(b).
The application judge attributed 14 months of delay to the exceptional circumstances arising from the COVID-19 pandemic. In R. v. Kirkopoulos, 2024 ONCA 596, the Crown unsuccessfully argued that court backlogs, a “knock-on effect” of the pandemic, should add another eight months to those exceptional circumstances, bringing the delay within the Jordan limits.
Justice Julie Thorburn, who wrote the court's reasons, said that even in a case of pandemic-related delay, the Crown must “make reasonable efforts to mitigate the delay.” Delays that could have been mitigated cannot be subtracted from the Jordan time limits, she said. The trial judge had not been satisfied that the Crown took reasonable steps to mitigate the delay.
Michelle Biddulph, who acted for the respondent, says the ruling clarifies that there is no one way to treat COVID delays.
“There's no absolute rule that COVID delays are always going to be exceptional circumstances, or that they’re always not going to be. It endorses a very deferential and fact-specific approach to the assessment of COVID delays.”
Read together with R. v. Agpoon, 2023 ONCA 449, the decision establishes a “full framework” for assessing COVID delays, she says. The decision tells the Crown that when faced with an s. 11(b) application, if they are going to rely on scheduling backlogs as an exceptional circumstance, they must provide evidence on how trial coordinators have been scheduling matters in the wake of COVID. They have to detail their mitigation efforts.
“Without that specific evidence, the trial judge might not find that it's an exceptional circumstance,” says Biddulph. “The evidentiary onus is on the Crown.”
David Quayat was Crown counsel in the appeal.
“What this ruling teaches us is that, particularly for the Crown, we have to do more to ensure that we show that we're doing everything possible to move matters forward, even in the face of backlogs and delays.”
He says that the Court of Appeal reiterated what it has stated in other cases, which is that just because COVID interfered with court operations does not mean that the court will attribute all the delay to the pandemic in its assessment.
However, Quayat says that many factors contribute to delays that prosecutors cannot control. They are unaware of how trial coordinators schedule matters, how many cases are pending, and how many judges and courtrooms are available.
“These are not things that are in the control of the prosecuting Crown.”
The decision is concerning, he says, because while the ruling states that more evidence is required to illuminate the nature and causes of delay, it is unclear how the Crown could find the type of statistics or information that would reveal the earliest date at which the trial could have been scheduled given the circumstances. It puts the Crown and litigants in an “awkward position” because court administrators, not prosecutors hold that information.
“Those are not people that typically show up at witness boxes or swear affidavits.”
