Tag Archives: Stay of Proceedings

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Removal or Withdrawal of Counsel from the Record for Ethical Reasons or Non-Payment of Fees, cases from 2018

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The Ontario Court of Appeal has recently ruled on the counsel’s ability to be withdrawn on counsel of record.  The starting point for any analysis stems from the Supreme Court of Canada’s decision in Regina v. Cunningham, [2010] 1 SCR 331, 2010 SCC 10 (CanLII) where the Court laid out the following principles to guide the Courts when it hears applications by accused persons and counsel to be withdrawn as counsel of record:  

[47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

 [48] Assuming that timing is an issue, the court is entitled to enquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.  Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.  Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel’s advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2).  If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for “ethical reasons”.  However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

[49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.), at p. 328, and Deschamps, at para. 23).  Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations.  It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.

 [50] If withdrawal is sought because of  non-payment of legal fees,  the court may exercise its discretion to refuse counsel’s request.  The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power (C. (D.D.), at p. 327).  In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:

   
  1. whether it is feasible for the accused to represent himself or herself;
  2. other means of obtaining representation;
  3. impact on the accused from delay in proceedings, particularly if the accused is in custody;
  4. conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
  5. impact on the Crown and any co‑accused;
  6. impact on complainants, witnesses and jurors;
  7. fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
  8. the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
  As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis.  On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice.  If the answer is yes, withdrawal may be refused.
In Regina v. Short, 2018 ONCA 1, the Ontario Court of Appeal ordered a new trial for first degree murder where the trial judge refused to let defence counsel off the record six (6) prior to the commencement of the trial proper.   Defence counsel made representations to the presiding judge that indicating that there was a “loss of confidence” between the accused person and himself.  That loss of confidence was such that counsel could not discharge his duties under the Law Society Rules because he could not ethically proceed.  The second ground cited by the defence lawyer was that he was not being paid by the client.  Finally, the defence counsel argued that “Counsel took immediate steps following such a loss of confidence in the relationship to prepare and file the Notice of Application.”  Trial counsel made representations to the trial judge in which he briefly outlined the history of his relationship with the appellant; again, he indicated he had not been paid and referred to the possibility of a lawsuit for payment of the funds owed to him. Counsel also advised the trial judge that because of the non-payment, he had been unable to do things that should have been done in preparation for the second trial.     The trial court considered these explanations but further queried defence counsel on the merits of the representations made and the materials filed, which perciepirated the following response by the Defence Lawyer:    

…I am telling Your Honour that there are issues that have arisen that result in a loss of confidence between Mr. Short and I…

…[A]nd I can tell you as an officer of the court, this is not me putting on top of a non-payment of fees, a paragraph that says there’s a loss of confidence just to get an easy way out. This is probably the most difficult decision I have done. In this particular case I have, without disclosing anything, done everything I can to move this case forward. After the second trial I wiped much of my calendar clean to get this second trial as quick as possible. Obviously, there were communications between my client and I that allowed me to make the decision to go forward, financially and for another, another, another, abound of reasons. But I am telling the [sic] today, is that having no funds, and not being able to disclose to you the communications between the client and I, that I cannot represent Mr. Short going forward. [Emphasis added.]

    It is also critical to note that the trial Court did not query the accused person because it was concerned about the possibility that confidential information would be related to the Court that would not have otherwise be the case if the application had not been made. The Crown Prosecutor objected to the application made by defence counsel.  Oddly, the Crown advised the Court that only payment issues were cited to the preclusion of ethical issues, suggesting that the defence counsel was camouflaging the true nature and merits of the application.  In accepting the Crown’s argument and rejecting defence counsel’s application to be removed as counsel of record, it stated:   Given the weight and tenor of the balance of the affidavit dwelling on financial issues, I am forced to conclude that the reference to ethics in the adverb “ethically” has no basis in evidence. I am persuaded that [trial counsel’s] difficulties relate to payment of his accounts and not to an ethical dilemma.[Emphasis added.]  
The Court of Appeal in Ontario held the trial judge was obligated to accept the defence counsel’s representations (as stated above) that the solicitor-client relationship had broken down; and should have accepted his application to be removed as counsel of record.  The failure to do so culminated in an error that rendered the trial unfair and created a miscarriage of justice. What is more, the trial court also erred by failing to hear from the accused as to whether he wanted to continue with the lawyer.
If you require the assistance of a defence lawyer, call J.S. Patel at 403-585-1960. However, please note that it is not our practice to discuss matters with potential clients when you currently have a lawyer.    

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The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada.

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Under the Criminal Code of Canada (the “Code”), a “dangerous offender” designation carries serious criminal law consequences.  Generally, it is reserved for the most violent and sexual predators.  The designation carries an automatic sentence of imprisonment for an indeterminate period, with no chance of parole for seven years.   The constitutionality of those provisions of the Code were recently challenged in the Supreme Court of Canada in a case called R. v. Boutilier, 2017 SCC 64 (“Boutilier”).   The majority of the Court upheld the constitutionality of the two (2) sections of the regime that was amended in 2008.  Currently, Section 753(1) of the Code sets out this two-stage test: the designation stage and the penalty stage.  It requires the lower Court, tasked with the adjudication, at the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual (an ordinary sentence followed by a long-term supervision order, or only an ordinary sentence) unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.   In this case, the sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence.  The matter was further appealed to the Supreme Court of Canada.
The Supreme Court stated the following in relevant part:   Continue reading The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada. →

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The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.

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August 20, 2017

The conduct of the defence in assessing the delay at trial under Section 11(b) of the Charter; and whether the calculation of the delay is the period between charge and verdict or between charge and sentence.  By J.S. Patel, Barrister, 403-585-1960 or 1-888-695-2211

In our previous Blog on R. v. Jordan, and R. v. Cody, we outlined the general legal test that the Courts use to determine whether a delay is considered unreasonable and to stay all charges against an accused person.  Two (2) presumptive ceilings were set: (a) eighteen (18) months of delay in matters in the Provincial Court; and (b) thirty (30) months for charges in the Superior Courts in Canada.  The issue of defence delay was expounded upon more recently in Regina v. Cody 2017 SCC 31; and it is described in our blow summarizing the judgement.  The conduct of the defence and Counsel is a relevant factor in determining whether there was an unreasonable delay that would attract a stay of proceedings under Section 24(2) of the Charter.

For instance, in Regina v. Mallozzi, 2017 ONCA 644, the Ontario Court of Appeal upheld the Trial Court’s Assessment of the alleged defence delay, in dismissing the accused’s application for a stay of proceedings on the basis of unreasonable delay under s.11(b) of the Charter.  In that case, the accused was convicted of two (2) counts of producing marijuana.  There was a preliminary inquiry;  and two (2) mistrials, which spanned over five (5)  years from the date he was charged. The court held that the “net-delay” was under the thirty (30) month ceiling created by  Jordan; and importantly, that the defence waived or caused thirty-seven (37) of the total sixty (60) months of delay. What is more, many dates had been offered to try to accommodate the schedule of defence counsel while the Crown and court were able to proceed earlier, and there was an express waiver of a further period.

In the obiter dictum of the judgement, the Ontario Court of Appeal further opined that even if the total ‘net-delay’ had surpassed the thirty (30) month ceiling as posited in R. v. Jordan (SCC), the resulting delay would have been justifiable given the two (2) mistrials, which the Court would have found fell within the rubric of term: ‘exceptional delay.’  This is because, in the Court’s view, the first (1st) mistrial came to fruition as a result of a defence objection concerning the empanelment of the 12th juror under Section 642 of the Criminal Code of Canada (the “Code”).   Defence counsel’s assertion that this delay was due to the summoning of too few potential jurors was rejected.  The Court of Appeal found that the defence position on this issue had been “frivolous.”  What is more, the second mistrial was agreed to by the Crown and the defence on the basis that the five of the jurors on the current panel had been on the previous panel. The Court took the view that the this second mistrial had been unnecessary; and that these particular events were unforeseeable.  Thus, they were not a “failure of the system” as advocated by the accused person at appeal.  Finally, the Court of Appeal also stated the transitional provision applied to the delay, which was incurred prior to the decision in Jordan, above.

What is interesting, however, is that the Ontario Court of Appeal, explicitly declined to decide whether the period of delay for s.11(b) purposes is the period between charge and verdict or between charge and sentence. Accordingly, this issue remains arguably open for consideration should the issue arise against in the future.

The issues involved in Charter applications under Section 11(b) involve complicated considerations and a thorough assessment of the applicable legal principles.  While it is clearly impossible to predict the outcome of proceedings and manner in which trials will unfold, the Mallozzi case clearly demonstrates the importance of considering the manner of defence delay and the strategic steps that need to be taken at trial. Experienced lawyers ought to be consulted in making such an application.

Contact our offices at 403-585-1960 or 1-888-695-2211 for an initial consultation.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used as fulsome account of area of law discussed.  It is your responsibility to obtained a full legal opinion concerning your matter.  

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings

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What are your rights under Section 11(b) of the Charter, and the Law on a Stay of Proceedings By 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 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,  R. 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.  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) 

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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.   

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The Supreme Court of Canada clarifies and confirms the “Ladder Approach” to release on bail pending a trial.

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Bail Hearings and the Reinforcement of the “Ladder Approach” and the “ability to pay”: by J.S. Patel, Criminal Lawyer – Bail Hearings: 403-585-1960 The Supreme Court of Canada recently address the constitutional of Section 512(2)(e) of the Criminal Code of Canada in the context of Judicial Interim Release (bail hearings) in Regina v. Antic 2017 SCC 27/. Parenthetically, he was not represented by a Criminal Defence lawyer at his appeal before the Supreme Court. Mr. Antic lost this appeal.  The critical issue before the appeal was whether Section 512(2)(e) permits a justice of the peace or a judge, without the submissions of a criminal defence lawyer, to require  require both a cash deposit and surety supervision only if the accused is from out of the province or does not ordinarily reside within 200 km of the place in which he or she is in custody.   Mr. Antic was an Ontario resident that ordinarily resided outside of the two-hundred (200) geographic limiter relative to the place of the indexed offence.  On an application by a criminal defence lawyer  in the Ontario Superior Court of Justice for a bail review, the presiding Justice found that since the geographical limitation in s. 515(2) (e) prevented the Superior Court from granting bail on the terms that it deemed appropriate, the provision violated the right not to be denied reasonable bail without just cause under s. 11 (e) of the Charter . Accordingly, the Court severed and struck down the geographical limitation in s. 515(2) (e) and ordered A’s release with a surety and a cash deposit of $100,000. The Public Prosecution Service of Canada (the “Crown”) sought to appeal the decision from the Superior Court to the Court of Appeal; and then ultimately to the Supreme Court of Canada.  The Supreme Court of Canada held that the provision was not unconstitutional, as found by the Superior Court of Justice in Ontario, and allowed the Crown appeal and reversed the declaration of unconstitutionality.  The real importance of this decision sits with the SCC’s reinforcement of the proper bail principles and the manner in that they were currently being inconsistently applied through out the domain of Canada.  The SCC went through all of the applicable bail principles that may be “traced back to English antiquity”, to assist the Courts, Criminal Bail Lawyer, and Crown prosecutors with succinct bail principles under the well know “Ladder Approach” – it is codified under Section 515(2) of the Criminal Code of Canada: [46]                          Aside from the release of an accused under s. 515(1) on his or her giving an undertaking without conditions, s. 515(2) sets out the other permissible forms of pre-trial release: (2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released (a) on his giving an undertaking with such conditions as the justice directs; (b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or (e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs. As stated by the Court, each provision, moving from s. 515(2)(a) to s. 515(2)(e), involves more burdensome conditions of release for the accused than the one before it. These forms of release, coupled with the specific release terms a justice or a judge may impose under s. 515(4) , have significant potential to impinge on an accused person’s liberty. The theoretical underpinnings of s. 515(2) of the Code avers that the Section 11(e) Charter right not to be denied reasonable bail without just cause is an integral part of an enlightened justice system; it fortifies the concept central to the presumption of innocence especially at the pre-trial stage shortly after the panic stricken stage of an arrest by the Toronto or Calgary Police Services.   The right is bifurcated in two (2) prongs:  (i) anyone charged with an offence, bears the right not to be denied bail without just cause (as stated above); and (ii) NOT to be denied reasonable bail. Under the first prong, “circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system”.   While under the second prong of the right, “…the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.” The SCC stated the strongly emphasized the following in regards to the second prong of the right to reasonable bail: “While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1)  to (3) of the Criminal Code . Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under s. 515(4)  should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.” In Mr. Antic’s criminal bail appeal, the Court found that  s. 515(2) (e) of the Criminal Code  did not have the effect of denying him bail but rather it was the Superior Court bail review judge’s application of the bail provisions that did so. The Superior Court  judge committed two (2) errors in delineating the release order: (i) First, by requiring a cash deposit with a surety, one of the most onerous forms of release, he failed to adhere to the ladder principle. Even though Mr. Antic had offered a surety with a monetary pledge, the bail review judge was fixated on and insisted on a cash deposit because he believed the erroneous assumption that cash is more coercive than a pledge; and (ii) Second, the bail review judge erred in making his decision on the basis of speculation as to whether Mr. Antic might believe that forfeiture proceedings would not be taken against his elderly grandmother if he breached his bail terms. A judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or a pledge. Parliament expressly authorized the possibility of an accused being released on entering into a recognizance with sureties in the place of cash bail, and judges should not undermine the bail scheme by speculating, contrary to any evidence and to Parliament’s intent, that requiring cash will be more effective.  As a result the Court found at para 49 as follows, in relevant part: [49]                          Therefore, where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail. A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit. If charged with a criminal or immigration offence, it is critical to contact a competent Defence lawyer that is away of the panoply of rights available to you.  Call: 403-585-1960 to speak to a lawyer or leave a confidential voice mail  for a free consultation