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Access to Justice - Interesting Technique Samples. R. v. Musclow [IMPORTANT re writing style option, needs studying - can be expanded usefully?]
In R. v. Musclow (Ont CA, 2024) the Ontario Court of Appeal cites an earlier exceptionally useful 'access to justice' judicial dictum which provides truly useful information to litigants by it's striving to state key basics of law - here in a Charter s.11(b) ['trial delay'] context:(a) Foundational Principles
[22] The framework for assessing unreasonable delay post-Jordan is well-established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:A. The New Framework Summarized
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [23] The standard of review is also uncontroversial. Although the application judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error, her characterization of periods of delay and the ultimate conclusion as to whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
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