Supreme Court might want to address decision ‘which doesn’t follow their analytic formula’: lawyer

Law360 Canada (June 28, 2023, 1:38 PM EDT) -- The Supreme Court may soon be grappling with the issue of court delay due to the COVID-19 pandemic after a lawyer said he plans to seek leave to appeal an Ontario decision which set aside stays of charges for three people charged with human trafficking.

Under the Charter, a person charged with an offence has the right to be tried “within a reasonable time,” and if that right is violated the remedy is a stay of charges. In the seminal 2016 decision R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada outlined how lower courts should assess delay to determine whether the right to be tried within a reasonable time has been violated and said that delay attributable to “exceptional circumstances” could be acceptable in some cases.

All three defendants in R. v. Agpoon, 2023 ONCA 449, were charged on a single indictment with offences relating to human trafficking and possession and/or use of a firearm. The Crown argued that the trial judge failed to consider the systemic disruptions to the operations of courts caused by the pandemic as discrete exceptional circumstances under Jordan.

The Crown said the trial judge should have allocated the entire time period of 14 months between the date the courts closed on March 17, 2020, and the date a direct indictment was brought against the three defendants in May 2021 as a discrete exceptional circumstance, rather than the three months she deducted for two of the defendants and the three months and 19 days she deducted for a third. The trial judge used what she considered to be a close comparator a case prosecuted out of the same Crown office and dealing with similar facts in which the Crown was able to prefer a direct indictment within three months of courts closing.

But the Ontario Court of Appeal agreed with the Crown, overturning a stay of charges against the three. Justice Peter Lauwers wrote that Jordan was not written with a phenomenon like a pandemic in mind.

“In this appeal we are required to reconcile the rights of an accused person to timely justice with the capacity of the criminal justice system to adjudicate criminal cases on the merits in the face of the disruptive effects of the COVID-19 pandemic,” he wrote. “We do this with respect to these three grouped appeals but also on a more general basis in order to provide trial courts with guidance.”

Justice Lauwers agreed with the lower court judge that the pandemic was a “discrete exceptional circumstance” under Jordan but added that she did not adequately account for it.

“Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes,” he wrote. “This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.”

Justice Lauwers was joined by Justices Gladys Pardu and Mary Lou Benotto in his ruling, which was issued June 22.

Chris Sewrattan of Sewrattan Criminal Lawyers, who represented one of the defendants, said the ruling is the first decision from a provincial court of appeal which tries to put out a “bright-line review” on COVID-19 delay. He also said he was surprised by it because “what the Court of Appeal did is contrary to the philosophy behind Jordan.”

“What we are dealing with here is exceptional circumstances, so at the exceptional circumstances stage of analysis the court presumptively is supposed to stay the proceedings unless the Crown can prove to the judge that exceptional circumstances exist to a certain extent,” he said. “And what the court does is, instead of engaging that test, they have given a windfall to the Crown by saying if you can point to these different types of COVID delay, the judge automatically has to accept that you have met your burden and deduct those time periods from the analysis.”

Sewrattan said the Supreme Court “might want to address an intermediate appellate court issuing a decision that doesn’t follow their analytic formula.”

“Jordan says the Crown needs to prove on a balance of probabilities that exceptional circumstances exist, and if they can’t they must stay the charge,” he said. “But now the Court of Appeal is saying no, they actually don’t have to actually prove anything — if they can point to these types of COVID delay the court must take it as granted that these are exceptional circumstances and deduct the time accordingly.”

Representatives from the provincial Attorney General’s Office were unable to comment by press time.

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