



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Perreault, 2020 ONCA 580

DATE: 20200915

DOCKET: C66449

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Francois Perreault

Respondent

Andrew Cappell, for the appellant

Howard L. Krongold, for the respondent

Heard: September 9, 2020 by video conference

On appeal from the order of Justice
    David Berg of the Ontario Court of Justice, dated December 21, 2018.

REASONS FOR
    DECISION

[1]

The issue in this Crown appeal is narrow. If the trial dates of November
    21, 2018 and November 22, 2018 were lost as the result of exceptional
    circumstances, the trial judge erred in finding that the net delay in Francois
    Perreaults trial exceeded the presumptive 18-month
Jordan
deadline in
    the provincial court, requiring a stay of proceedings pursuant to s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
. If those dates were not
    lost as the result of exceptional circumstances, the trial judge was correct,
    and this appeal must be dismissed.

[2]

We find no error in the trial judges characterization of this delay as systemic
    or institutional delay, or in his decision to allow Mr. Perreaults s. 11(b)
    application. Those trial dates, the first dates to be set, were scheduled to
    occur less than a week before the presumptive
Jordan
deadline. There was
    no margin for error. Yet, Mr. Perreaults case was set to be heard in an
    overbooked court. For example, twenty-five matters were set to be heard on
    November 21, 2018, in what turned out to be six provincial courtrooms open for
    trials in the notoriously busy Ottawa jurisdiction. Eighteen of those matters
    were expected to proceed. Things were not materially better on November 22, 2018.
    Mr. Perreault attended for his trial on both dates, but there was no judge
    available to hear his case on either day, and so it was adjourned outside of
    the presumptive 18-month
Jordan
deadline. In announcing, on November 22,
    2018, that the case would not be reached yet again, the assigned trial Crown
    commented that Mr. Perreaults case was one of the matters that was stacked on
    top of other matters and there has been very little movement.

[3]

The Crown urges that, notwithstanding this course of events the trial
    judge erred in staying Mr. Perreaults prosecution because exceptional
    circumstances caused the loss of the two trial dates, namely: (1) two judges
    were attending a compulsory education program, and (2) a third judge was unexpectedly
    ill.

[4]

We do not agree that the assignment of judges to education programs
    qualifies as an exceptional circumstance. To qualify as an exceptional
    circumstance the Crown must show that the delay is reasonably unforeseen
or
reasonably unavoidable:
R. v. Jordan
, 2016 SCC 27, [2016] 1
    S.C.R. 631, at para. 69. Judges are expected, indeed required, to attend
    judicial education programs. This is part of their judicial assignment and
    therefore it is reasonably foreseeable that when they are engaged in judicial
    education, they will not be available in courtrooms. If courts are left
    understaffed because judges are required to attend judicial education programs,
    this is a systemic or institutional problem, not an exceptional circumstance. It
    is also a problem that is avoidable if adequate judicial resources are made
    available to conduct trials within a reasonable time within a system that
    appropriately requires judicial education.

[5]

Nor does it matter that the prosecuting Crown can do nothing about the
    staffing of courts. The Crown at large is responsible for preventing systemic
    delay. The fact that one out-of-town judge was brought in to sit two half days while
    two judges were away was insufficient to mitigate the shortfall.

[6]

The Crown argues, in the alternative, that the unexpected illness of another
    assigned judge on November 21 and 22, 2018 is an exceptional circumstance that
    caused Mr. Perreaults delay. The Crowns theory is that even though several
    cases were not reached on November 21 and 22, 2018, Mr. Perreaults was the
    priority case for the provincial Attorney General and would have been heard but
    for this judges unexpected illness.

[7]

We agree that the illness of a judge is a quintessential example of an
    exceptional circumstance, however the Crown has not met its burden of showing
    that this judges illness explains the loss of Mr. Perreaults trial dates. Two
    federal criminal matters scheduled for the same days were not reached, and, as
    the Crown concedes, matters prosecuted by the federal Crown are given priority
    over provincially prosecuted matters. We cannot find, in the circumstances,
    that Mr. Perreaults matter would have been heard had a trial judge not
    been ill. That trial judge may well have dealt instead with one or both federal
    matters. What we do know is that Mr. Perreaults matter would have been heard
    had sufficient judges been scheduled to preside on Mr. Perreaults set trial
    dates.

[8]

The Crowns appeal is therefore dismissed.

David M. Paciocco
    J.A.

I.V.B. Nordheimer
    J.A.

J.A. Thorburn J.A.


