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Lisa Silver, University of Calgary

COVID-19 pandemic exceptional circumstance when determining trial delay, B.C. judge rules

Wednesday, August 26, 2020 @ 9:29 AM | By Ian Burns

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A B.C. provincial court judge has ruled the impact of the COVID-19 pandemic on court operations is an exceptional circumstance and should not count towards calculating trial delay in the case of a man charged with attempted murder.

Justice Dawn Boblin wrote the pandemic was outside the control of the court and the Crown as it was “reasonably unforeseen and reasonably unavoidable” and neither Crown counsel nor the court could reasonably remedy delays once they arose.

“Although the circumstances need not be rare or entirely uncommon to meet the definition of an exceptional circumstance, the COVID-19 global pandemic certainly was that,” she wrote in R. v. Ali Ismail 2020 BCPC 144, issued July 24.

Ahmed Ali Ismail was charged with attempted murder and aggravated assault in July 2018, and applied for a stay of proceedings, saying his right to be tried within a reasonable time had been violated. In R. v. Jordan 2016 SCC 27, the Supreme Court established a ceiling of 18 months for cases tried in provincial courts after which delay would be considered unreasonable.

But Justice Boblin ruled the net delay in the case was mitigated not only by COVID-19 but also counsel availability and the fact his first lawyer withdrew from the case. This left remaining delay at 13 months and 19 days, below the Jordan ceiling.

“In my view, there can be no dispute that the impact of the COVID-19 global pandemic on court operations in the provincial courts of British Columbia is a discrete event,” she wrote.

Lisa Silver, University of Calgary law professor

Lisa Silver, an associate professor at the University of Calgary who teaches criminal law, said she was not surprised the court found COVID-19 to be an exceptional circumstance but the ruling turned more on the availability of counsel rather than the pandemic itself.

“There were these other exceptional circumstances besides COVID-19,” she said. “Everything is fact-specific, and you have to look at the entirety of the case, and as counsel working through this at the trial level you have to be responsive.”

With the number of people asking for stays as a result of the pandemic likely to increase, Silver said there is “room to wiggle” in terms of looking at whether the pandemic constitutes an exceptional circumstance.

“The Crown and the court can’t just say there are exceptional circumstances every time they see COVID-19. They need to show that they were trying to mitigate delay beforehand,” she said. “In this particular case the judge found the Crown and the court were doing as best as they could to mitigate delay in the circumstances.”

B.C. Prosecution Service spokesperson Alisia Adams said she could not comment on the circumstances of the decision, given the fact that the prosecution which gave rise to it is still before the court.

“In approaching any Jordan application, Crown counsel are guided by relevant case law, with arguments tailored to the specific circumstances of the matter before the court,” she said.

Counsel for Ali Ismail did not respond to a request for comment.

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