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Does the right to a trial within a reasonable period of time under Section 11(b) of the Charter apply to re-trial? By J.S. Patel, Calgary Criminal Lawyer

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Section 11(b) of the Charter
Right to a trial within a reasonable period of time and the calculation of delay after a re-trial.

The right to have a trial within a reasonable period of time was reconsidered by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and there have been many decision considering the principles that stem from that seminal case.   Recently, the Ontario Court of Appeal, in Regina v. MacIsaac,2018 ONCA 650 (CanLII), allowed the appeal of an accused and quashed his conviction of aggravated assault under the Criminal Code of Canada; and stayed the charges against him due to a violation of his rights under Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).  This was based on the following time-line in that case.

Mr. MacIsaac waswas charged with aggravated assault on July 11, 2012, and he proceed with an election for a trial in the Ontario Court of Justice and was convicted on December 16, 2013.  On August 31, 2015, the Court of Appeal quashed the conviction and ordered a new trial. The accused’s counsel was served with a summons for the re-trial on November 30, 2015. On February 3, 2016, a ten (10) day re-trial was scheduled to run from February 6 to 17, 2017.  On August 25, 2016, the accused applied for a stay under s.11(b). The application was denied on October 26, 2016 and the re-trial went ahead as scheduled.  The trial judge reserved her decision following the last day of trial, which was February 16, 2017. On April 18, 2017, the trial judge released her judgment finding the accused guilty of aggravated assault.

The Ontario Court of Appeal court noted that the case was argued on the assumption that the eighteen (18) month presumptive ceiling established in Regina v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631applied to the re-trial. The court stated that it would deal with the appeal on that basis. The court commented, however:

[27]     In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a re-trial. Re-trials must receive priority in the system, and in the normal course re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for re-trials.
[28]     We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown’s duty to re-try cases as soon as possible.
[29]     I begin by reviewing the considerations raised by the parties concerning the calculation of delay. I conclude that the delay in this case either exceeds the presumptive 18-month ceiling or is unreasonable in any event. In either case, the appeal must be allowed and a stay must be granted.

What is more, the court also addressed the issue of when the clock starts for the purposes of a delay analysis in the case of a re-trial. The court held that the time for assessing delay runs from the date the appellate court quashed the conviction and ordered a new trial. Accordingly, the clock started running on August 31, 2015.

In terms of determine when the proverbial clock ceases to run, the court averred that the end date for calculating total delay was either April 18, 2017, which is when the judgement was rendered or February 17, 2017, which again, was the last day of trial.  However, given that the factual foundation was not before it, the court stated that it was unnecessary to resolve the issue of whether the time a judgment is under reserve is included in the calculation of total delay. This was because the net delay in the case was unreasonable under either of the above scenarios: (a) First, under the initial scenario, in which reserve time is included, the net delay was over 19 months and exceeded the presumptive ceiling. The Crown had not established the presence of exceptional circumstances that rebut the presumption of unreasonableness. Accordingly, the delay was unreasonable;  Second, (b) under the second scenario, in which the time under reserve is not included in the calculation of delay, the net delay was over seventeen (17) months. Although this net delay was below the presumptive ceiling, the defence had met its burden of showing that the delay was unreasonable.

If you have been charged with a criminal offence, it is important to ensure that sufficient and accurate representations are made on the Court record to ensure that your efforts to proceed in a diligent matter are noted despite the tests outlined by the Supreme Court of Canada in Regina v. Jordan. The common-law rules, as stated in this case, provides an example that depending on the facts of each case, may be useful in persuading the Crown or the Justice  applies to your case.

If you have been charged with a criminal offence, contact Mr. J. S. Patel, Barrister for a free initial consultation regarding your matter.

Call 403-585-1960

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Refusing to provide breath sample after causing an accident resulting in death. Sentencing principles.

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Criminal Code Offence of Refusal to Provide a Breath Sample
Refusal to Provide a Breath Sample. Call Mr. J. S. Patel, Criminal Lawyer at 403-585-1960 for a consultation.

In Regina v. Suter, 2018 SCC 34, a 6:1 majority of the Supreme Court of Canada allowed the accused’s appeal in part.  The Court set aside his 26-month sentence of imprisonment, imposed by the lower sentencing court, for the offence of refusing to provide a breath sample knowing that he caused an accident resulting in a death (Criminal Code, s.255(3.2)),and imposed a sentence of time served of just over ten (10) and a (1/2) half months.

That said, the circumstances of this case are unique as related recently on CBC news. The fatal accident was caused by a non-impaired driving error, and Mr. Suter refused to provide the police with a breath sample because he received bad legal advice. The lawyer he called from the police station expressly told him not to provide a breath sample, and Mr. Suter demurred. Added to this, sometime after the accident, Mr. Suter was attacked by a group of vigilantes who used a set of pruning shears to cut off his thumb. His wife was also attacked in a separate incident. He later pleaded guilty to the s.255(3.2) offence and the other charges were withdrawn.

The sentencing judge imposed a sentence of four (4) months’ imprisonment plus a thirty (30) month driving prohibition. The Judge found that the accident was caused by a non-impaired driving error. He also found that the accused’s refusal to provide a breath sample was the result of bad legal advice and was a mistake of law, which fundamentally changed the accused’s moral culpability. In addition, he noted several other mitigating factors, and also took into account the violent vigilante actions against the accused. However, the Court of Appeal, the Court of Appeal disagreed with this sentence.  The Appeal court increased the custodial portion of the sentence to twenty-six (26) months. The court found that: the deficient legal advice did not constitute a mistake of law and it could not be used to mitigate the accused’s sentence; the sentencing judge failed to consider, as an aggravating factor, that the accused chose to drive while distracted in the context of his health and pre-existing alcohol problems; and the sentencing judge erred by taking the vigilante violence into account.

The majority of the Supreme Court held that both the sentencing judge and the Court of Appeal committed errors in principle that resulted in the imposition of unfit sentences. The majority held as follows:

The Court of Appeal erred by effectively sentencing the accused for the uncharged offence of careless driving or dangerous driving causing death. A further error was committed by the Court of Appeal in failing to consider the vigilante violence suffered by the accused. The majority stated that vigilante violence against an offender for his or her role in the commission of an offence is a collateral consequence that should be considered — to a limited extent — when crafting an appropriate sentence.

What is more, the sentencing judge erred in finding that the accused was acting under a mistake of law when he refused to provide the police with a breath sample and that this factor fundamentally changed the accused’s moral culpability. He also erred in giving undue weight to the accused’s non-impairment as a mitigating factor.

Taking into account the attenuating factors in the case, the majority of the Supreme Court of Canada concluded that a sentence of 15 to 18 months’ imprisonment would have been a fit sentence at the time of sentencing. The majority held, however, that in the circumstances of this case – the accused had already served just over 10 and a half months of his custodial sentence and had spent almost nine months waiting for the court’s decision – it would not be in the interests of justice to re-incarcerate the accused.

The final dissenting opinion came from Justice Gascon.  His decision was predicated on principles of deference towards the sentencing judge. Justice Gascon would have set aside the 26-month sentence of imprisonment imposed by the Court of Appeal and restored the four-month sentence imposed by the sentencing judge. Gascon J. held that there was no legal basis to justify appellate intervention with the initial sentence in the case.

If you have been charged with refusing to provide a sample of your breath, it is critical that you receive competent legal advice from the outset.  Mr. Patel is regarded as an excellent advocate for the rights of those charged with DUI related criminal code offences.  Call Mr. J. S. Patel, Criminal Lawyer at 403-585-1960 to arrange for a free initial consultation.

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Striking or Vacating a guilty plea in Criminal Courts in Canada. Legal Requirements from the Supreme Court of Canada.

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Removal of a guilty plea
Guilty pleas, striking or vacating a guilty plea in Canada.

“Simply put, pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused.”

In Regina v. Wong, 2018 SCC 25, a 4:3 majority of the Supreme Court of Canadaheld that when an accused person seeks to withdraw a guilty plea on the basis that he or she did not appreciate the consequences of that plea, he or she must establish subjective prejudice.

The Supreme Court said that an Accused person who seeks to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea should be required to establish subjective prejudice. To that end, the accused must file an affidavit establishing a reasonable possibility that he or she would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions.

Because the original guilty plea is an exercise of the accused’s own subjective judgment, it logically follows that the test for withdrawing that plea should also be directed to the accused’s subjective judgment. The inquiry is subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. Ultimately, what matters is the accused’s decision to plead guilty or to proceed to trial, and not whether that decision is, to someone else, reckless or irrational. This framework is premised upon the view that judicial scrutiny must be directed to how the accused, and no one else, would have proceeded. But like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances. Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. This approach strikes the proper balance between finality of guilty pleas and fairness to the accused. The accused need not show a viable defence to the charge in order to withdraw a plea on procedural grounds and requiring the accused to articulate a route to an acquittal is antithetical to the presumption of innocence and to the subjective nature of choosing to plead guilty.”

The accused, Mr. Wong, is a permanent resident, had pleaded guilty to cocaine trafficking and was sentenced to nine (9) months’ imprisonment without realizing this would automatically make him inadmissible to Canada and prevent him from appealing the inadmissibility. The majority from the Supreme Court held that the accused’s had filed an affidavit that failed to indicate that he would have proceeded differently had he known of the collateral immigration consequences and that therefore the plea could not be withdrawn. However, the Crown conceded a sentence of six (6) months less a day was appropriate and this would restore the accused’s right to appeal his inadmissibility.

The three-member dissent would have used a “modified objective” test: whether a reasonable person in the same situation as the accused would have proceeded differently had he or she been aware of the collateral consequences. The dissent stated:

The dissent’s modified objective approach to determine whether an accused has shown prejudice would not account for the fundamentally subjective and deeply personal nature of the decision to plead guilty. Pleading guilty is the decision of the accused, not a reasonable accused, or someone like the accused. To permit reviewing courts to substitute their own view of what someone in the accused’s circumstances would have done is to run a serious risk of doing injustice to that accused. A modified objective framework focusses upon what a judicially constructed hypothetical person would do, instead of how the particular accused would have proceeded. Furthermore, this approach would likely be difficult for lower courts to apply. Given the highly contextual and even idiosyncratic nature of factors that influence important decisions, adopting a standard based on what a hypothetical reasonable person who need not be presumed to have taken the best or single most rational course of action would have done effectively confers upon reviewing courts unbounded discretion to reach whatever conclusion they see fit. The modified objective framework also adopts a variable standard of scrutiny, not tied to a particular accused, but rather to a reasonable person. However, different accused, even different similarly situated accused, may ascribe varying levels of significance to different collateral consequences. Thus, a modified objective approach risks resulting in vacated guilty pleas even where there is no evidence that the accused personally would have done something differently. Even further, an accused who admits under cross‑examination that he or she would have proceeded identically would still be entitled to withdraw his or her plea if a reasonable accused in his or her circumstances would withdraw the plea. This would impose unnecessary and substantial demands on a criminal justice system that is already overburdened.

This case illustrates the importance of ensuring that sufficient representations are made to a court when an application is made to vacate a guilty plea.  If you are facing similar circumstances, call Mr. J.S. Patel, Criminal Lawyer at 403-585-1960.

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A crushing sentence that was imposed by the sentencing judge was overturned, at appeal, by the Ontario Court of Appeal.

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Recently the Court of Appeal in Regina v.  Williams, 2018 ONCA 367the Ontario Court of Appeal allowed the accused’s appeal against his twelve (12)-year sentence (less five years for time served) which was imposed, following his guilty plea, in response to convictions for drug and firearm offences arising out of two sets of charges.  He pled guilty to: 1)   Possession of cocaine for the purpose of trafficking, 2)   Possession of cannabis for the purpose of trafficking, 3)  Carrying a concealed firearm, 4)  Possession of a restricted firearm with readily accessible ammunition, and 5)   Breach of recognizance (for possession of a firearm).

The trial court imposed what the Court of Appeal viewed as a crushing sentence, which precluding the prospects of rehabilitation, a valid sentencing objective.  The Court of Appeal stated:

 While the sentencing judge noted the appellant’s guilty pleas to the second set of charges in his narrative of events, his reasons do not indicate he took the guilty pleas into account in determining the appropriate sentence. Further, while the trial judge noted the appellant’s relative youth at the time of sentencing, his reasons do not indicate he took into account that the appellant was just 23 years of age and a first offender at the time of the first set of offences or that a first penitentiary sentence should be the shortest possible that achieves the relevant sentencing objectives. Finally, we are of the view the sentencing judge did not accord sufficient weight to the factor that the appellant should not be crushed by the sentence. In our view, the sentence imposed all but eliminates the appellant’s prospects for rehabilitation when considering the “Principles and Purposes of Sentencing”  in the Criminal Code of Canada.  While denunciation and deterrence are widely accepted as primary sentencing principles, section 718(d) clearly requires consideration to the issue of rehabilitation. 

The reasons for sentence did not indicate that the sentencing judge took into account the fact that the accused was only 23 years old and a first offender at the time of the first set of charges, or that a first penitentiary sentence should be the shortest possible sentence that achieves the relevant sentencing objectives.  Furthermore, the sentencing judge failed to sufficiently consider that the sentence should not be crushing to the accused.  The court reduced the sentence to nine years.

If you are seeking to appeal your conviction against your sentence, contact our law firm at 403-585-1960 and speak to J.S. Patel, Barrister.  We accept legal aid on a case by case basis and charge a consultation fee for a review of appellate matters.

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Section 11(b) of the Charter and the Law on a Stay of Proceedings – What are “transitional circumstances” and general information on calculating the “net-delay” by J.S. Patel, Calgary and Toronto Criminal Lawyer.

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June 25, 2017 Section 11(b) of the Charter and the Law on a Stay of Proceedings – What are “transitional circumstances” and general information on calculating the “net-delay”  by J.S. Patel, Calgary and Toronto Criminal Lawyer.   Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)

In Regina v. Cody, 2017 SCC 31 the Supreme Court of Canada revisited the legal and analytical framework for assessing the rights of a criminal defendant in the context of unreasonable delays in bringing the matters to trial(s).  As stated in the previous posts, the Supreme Court of Canada in Regina v. Jordan, 2016 SCC 27 for assessing claims of unreasonable delay under s.11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).   In Jordan the court set out two (2) presumptive ceilings: 18 months for provincial court cases, and 30 months for superior court cases. The issue of “net delay” is critical to that assessment.  If the total delay minus defence delay exceeds the applicable presumptive ceiling, then the delay is presumptively unreasonable.  At that point, the Crown can rebut this presumption by demonstrating “exceptional circumstances.”   Those circumstances are described in Jordan.   What is more, where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for exceptional circumstances, the Crown may demonstrate that the “transitional exceptional circumstance” justifies the delay.

The Crown prosecutors had argued in Cody  sought to modified the Jordan framework notwithstanding it’s recent pronouncement of the same.  The Supreme Court declined to modify the Jordan framework. The court stated that, properly applied, the current framework “provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt” (at para. 3). The court also clarified some of the principles set out in Jordan.

The Court Cody, supra, summarized the following concerning defence delays at paragraphs 26-43: [26]                        Defence delay is divided into two components: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence” (Jordan, at paras. 61 and 63) [27]                        A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61). In this case, it is undisputed that Mr. Cody expressly waived 13 months of delay. Accounting for this reduces the net delay to approximately 47.5 month [28]                         In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66). [29]                         However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65). [30]                         The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples.  They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64). [31]                         The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65).  It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [32]                         Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a  11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [33]                         As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context,  v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [34]                         This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan  In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished ‎by the deduction of delay caused by illegitimate defence conduct. [35]                         We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan.  All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by  11(b) of the Charter. [36]                         To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137). [37]                         We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. [para. 139] In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay. [38]                         In addition, trial judges should use their case management powers to minimize delay.  For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily ( v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.  [39]                         Trial judges should also be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone. This responsibility is shared with counsel.

The court also considered what constitutes “exceptional circumstances” (at paras. 44-66) and when the “transitional exceptional circumstance” may justify a presumptively unreasonable delay (at paras. 67-74):

[67]                          The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para. 96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.  [68]                          Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin. [69]                          To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800).  For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96). [70]                          It is important to clarify one aspect of these considerations. This Court’s decision in R. v. Williamson, 2016 SCC 28 (CanLII), [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances.  [71]                          When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).  [72]                          In this case, the entire proceedings at trial pre-dated the release of Jordan. The Crown must therefore show that the 36.5 months of net delay was justified in light of its reliance on the previous state of the law under Morin. 

The factual and legal assessment of a remedy under Section 11(b) of the Charter for a stay of proceedings resulting, effectively, in a dismissal of the charges against you, is a complicated factual and legal assessment; and legal counsel ought to be sought from experienced counsel.

Contact J.S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto)

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.