No unreasonable trial delay caused by Covid-19 delay, Alberta Court of Queen’s Bench judge rules

 “It has always been that the court’s resources must respond to every instance where life intersects with the law; however, as all of us can imagine, many of the issues before the Court became more acute.”

Given the court already had matters scheduled for the winter and spring terms, “there should have been no reasonable expectation that this matter could have been more aggressively scheduled than the earliest days offered by the court coordinator.”

However, Graham Johnson, a criminal defence lawyer based in Edmonton, says, the “approach of deducting all the delay resulting from COVID-19 is problematic.”

Johnson adds: “Certainly the pandemic is as clear of an example of an unforeseen event outside the control of the Crown as you can get.  But people still have charges hanging over their heads and they still have a constitutional right to be tried within a reasonable time.“

The problem with deducting all the delay flowing from the pandemic, Johnson says, “is that it basically gives the bureaucracy a blank cheque to take however long it takes to get these matters heard.”

Johnson adds he brought a similar application to court on a homicide, where the judge gave the decision orally, but the written decision has yet to come.

“The finding of the judge in my case was essentially the same as in this one – the entire period resulting from COVID was deducted from the calculation.  This seems to be the way all the jurisprudence is going, but in my view, it’s still important for defence counsel to bring these applications (to court).”

The three accused - Alexander Dimitri Kalashnikoff, Tara Lee Cartwright and Matthew James Robert –face charges of drug trafficking. They argued that their right to a trial within a reasonable period was infringed by a total delay of 40 months, from the date of the first Information, January 22, 2018, to the expected conclusion of the trial in May.

 “They argued that only the period of time that the court was not conducting any in-person trials should be deducted from the total delay,” Justice Dilts wrote. That would mean that only the time between May 5, 2020, and to the end of either June 2020 or September 2020, when the court could hear in-person trials, should be deducted as delay attributable to the pandemic. If the court were to agree, the delay would surpass the Jordan threshold.”

R v Jordan was a decision of the Supreme Court of Canada which rejected the framework traditionally used to determine whether an accused was tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms and replaced it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases.

The accused argued that, when scrutinized, the court’s decisions exacerbated the delay and that the court should have undertaken a case-by-case and region-by-region review and not simply have ordered the adjournment of all trials by Master Order.

They argued that “the court’s actions failed to consider what the appropriate response was for Grande Prairie and what the appropriate response was for these applicants.” The result was a 40-month delay.

In response, the Crown argued the pandemic was an exceptional event and that the entire delay from May 5, 2020, to the scheduled completion of the trial on May 21, 2021, should be deducted.

Justice Dilts wrote: “The Crown says that it’s important to remember that the Supreme Court in Jordan was responding to a culture of complacency, where all participants in the justice system had to assume a proactive role in addressing delay. It says those same policy concerns are not in play here.

In the same vein, the Crown argued it was appropriate for the court to respond to the pandemic, build out solutions, and ensure all justice system participants were safe before resuming operations.

Given the backlog of cases created by the shutdown, the Crown argued the court prioritized the most vulnerable cases. And had it been aware of any concerns of delay from the accused, they could have addressed the delay more proactively.

Justice Dilts noted in her decision that on March 12 of 2020, the court first announced it would need to prepare for disruption to the court system. By March 13, 2020, jury trials were suspended and by March 15, 2020, the court limited hearings to emergency or urgent matters only.

For criminal matters, emergency or urgent matters encompassed detention, bail review, and arraignments for in-custody accused. It also suspended in-person criminal trials.

Through various Master Orders, the court adjourned 380 criminal trials due to COVID 19 from March 15 to September 1, 2020. In Grande Prairie, 14 criminal trials were adjourned.

When the court decided to resume trials last summer, it said it would hear short, judge-alone criminal trials in-person in Covid-safe courtrooms. It would also hear short judge-alone criminal trials through videoconferencing if the Crown and defence agree.

The court also prioritized Jordan-compromised trials and trials involving in-custody accused and other particulars outlined in the court’s Criminal Trial Triage Form. Justice Dilts said the three accused suggested “this trial would not have qualified for a summer trial date” but provided “nothing other than this bare assertion.”

Dilts wrote that “by experience, there was limited uptake on the court’s offer to conduct criminal trials over the summer, with the result that the court made the time available for family matters, civil matters and judicial dispute resolution.”

As well, “the court aggressively undertook pretrial conferences on criminal matters in an effort to get its arms around the backlog and its current bookings. In addition, the court established priorities for the rescheduling of adjourned matters.”

Dilts pointed out in her ruling that the court also had to ensure suitable physical facilities to not compromise the health of those in the courtroom. Over the spring and summer of 2020, plexiglass was installed in courtrooms across the province and established public safety guidelines for social distancing, cleaning, and sanitization.

In Grande Prairie, by June 17, 2020, three courtrooms had plexiglass installed. By September 9, 2020, all courthouses across the province had plexiglass installed in at least one courtroom. In addition, the court established off-site locations throughout the province to allow for the resumption of jury trials starting in September.

Dilts also wrote the ability to operate in-person criminal trials “depends not just on judicial resources but also clerk, sheriff, court reporting, and court administration resources.

“It requires coordination with other agencies, including the Crown, police and courthouse security, to name just a few, all of which expect there to be reasonable measures in place to protect the health and safety of their members.

“Against these observations, I have not been presented with any evidence that suggests this court should have mitigated the delay caused by the COVID-19 pandemic differently,” she wrote. “Nor am I aware that any Canadian jurisdiction responded materially differently than here.

“This court responded to the pandemic by setting priorities for when in-person matters could resume, allocating resources impacted by the pandemic in places to meet those priorities, allowing summer sittings, reconfiguring its courtrooms to allow for the resumption of in-person hearings and rolling out online solutions.”

However, lawyer Johnson, a partner with Dawson Duckett Garcia & Johnson, says the approach used by the judge essentially makes bureaucratic scheduling decisions “immune from meaningful review under this approach, notwithstanding it directly affects a person’s constitutional right to be tried within a reasonable time.

Johnson suggests a better approach would be” to deduct the period of time where the court was not hearing matters.”

Any remaining time should still count towards the Jordan ceiling, he says. “If the Jordan ceiling is exceeded, that does not mean the charges are automatically stayed; rather, it puts the onus on the state . . . to show why the charges should not be stayed.”

He also says that in his experience, “the response of the courts was slower and more inefficient than that of other essential services.”

 “As I recall, every Walmart or mom-and-pop convenience store or liquor store in the province had some form of plexiglass or shield in place by about the end of April, 2020.  According to this decision, it took until September to do the same in at least one courtroom in all courthouses.”

Adds Johnson: “Whether the court directives are appropriate is probably the subject of much debate, but the problem with the . . . jurisprudence as it’s developing in relation to the pandemic is to simply excuse all pandemic-related delay. . . and effectively insulate these bureaucratic decisions from review, even where they impact the constitutional rights of an accused person.”