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Charter - Section 11(b) - Trial Delay (2). R. v. J.S.
In R. v. J.S. (Ont CA, 2024) the Ontario Court of Appeal consider a Charter s.11(b) trial delay issue, here focussing on 'exceptional circumstances' which may allow the standard trial duration ["18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice": R. v. Agpoon (Ont CA, 2023)] to be exceeded:(a) Discrete exceptional circumstances
[65] Jordan makes clear that exceptional circumstances are ones that lie outside of the Crown’s control because they are: “(1) reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original): Jordan, at para. 69. Therefore, it is a two-part test.
[66] As recognized in Jordan, trials are “not well-oiled machines” and “if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance”: at para. 73.
[67] That is precisely what happened here. Although the parties made a good faith effort to establish realistic time estimates, things went awry when H.W. initially rejected the accuracy of the recording of his police statement. To use the expression from Jordan, this trial experienced an “unavoidable development” that caused it to “quickly go awry leading to delay”: Jordan, at 73. In other words, the first part of the exceptional circumstances test is met.
[68] The focus therefore shifts to what reasonable efforts the Crown took to respond and attempt to bring the trial in under the ceiling.
[69] Assessing whether the steps taken by the Crown were reasonable in the circumstances known at the time is a different exercise than asking whether, looking backwards, an alternative litigation plan could be envisaged — one with different choices about what witnesses should have been called and when. Rather, the relevant inquiry is whether the Crown acted reasonably to remedy the delay once the unforeseen circumstances arose: Jordan, at paras. 69, 74. With respect, the summary conviction appeal judge went beyond the proper scope of the relevant inquiry.
[70] The record in this case makes clear that the trial Crown took her responsibilities most seriously and did everything in her power to mitigate the delay once the problem arose. As previously noted, the trial was entirely on track — if not ahead of schedule — until the problem arose. Indeed, at the end of the second day of trial, the trial Crown expressed the view that she would close her case by November 7, 2019. By all accounts, she had a reasonable litigation plan and was executing on it. And, once the difficulty with H.W.’s evidence arose, she responded reasonably as events unfolded.
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[75] In summary, the two-part test for discrete exceptional circumstances was satisfied. Although not ideal, this justifies a delay of more than two months, which would bring the matter under the 18-month ceiling. Indeed, this court has previously concluded that a delay of 4.5-months to reschedule a matter after an exceptional circumstance arose, around the same amount of time as this case, was not “sufficiently long to render unreasonable” the conclusion that the entire time should be attributed to delay caused by discrete exceptional circumstances: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 49, 54-58. . R. v. S.A.
In R. v. S.A. (Ont CA, 2024) the Ontario Court of Appeal allows a Crown appeal, here regarding Charter s.11(b) ['unreasonable trial delay'] issues - and involving a useful practical discussion of unfulfilled judicial vacancies and their effect:[1] This is a Crown appeal from a stay of proceedings following a finding of unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The application judge found that the delay in this case was unreasonable even though it fell below the applicable ceiling under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which in this case was 30 months. In her view, a factor that contributed to the delay was unfilled judicial vacancies. In assessing the reasonableness of the delay, she considered what would be typical for a comparable case in the jurisdiction if the court were not under-resourced. She found that the case had taken six to ten months longer than “what should be typical” (emphasis in original). Ultimately, she concluded that this was one of the “rare and clear” cases where a stay of proceedings was warranted.
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[18] The application judge’s findings of fact are owed deference on appeal, but her legal analysis, including her determination that the delay is unreasonable for purposes of s. 11(b), must be correct: 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; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.
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(1) The Jordan framework
[20] In order to explain where the application judge went off track, it is necessary to briefly review the well-known Jordan framework.
(a) The presumptive ceiling
[21] Central to the Jordan framework is the “ceiling beyond which delay is presumptively unreasonable”: Jordan, at para. 49. This ceiling – 30 months in the Superior Court of Justice and 18 months in the Ontario Court of Justice – is the “most important feature” of the new framework: Jordan, at para. 49.
[22] Ceilings are intended to provide “meaningful direction” to those working within the administration of justice about their s. 11(b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: Jordan, at paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108.
[23] In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates and well aware that “resource issues are rarely far below the surface of most s. 11(b) applications”: Jordan, at para. 117. To this end, the ceilings set in Jordan were said to “reflect[] the realities we currently face”: Jordan, at para. 57.
(b) Cases below the ceiling
[24] The majority signalled that stays of proceedings under the ceiling will occur only in rare cases where there is clearly unreasonable delay: Jordan, at para. 48. By remarking upon the anticipated rarity of staying cases under the ceiling, the majority made specific note of three factors that had been considered in calibrating the ceilings of 30 months for cases in the Superior Court of Justice and 18 months for cases in the provincial court: the increased complexity of cases, their inherent needs, and a certain “tolerance for reasonable institutional delay”: Jordan, at para. 83.
[25] As explained above, the defence may establish unreasonable delay below the ceiling only if the defence can establish two things, that: “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (emphasis in original): Jordan, at para. 82; see also R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at paras. 4, 70, 104. In determining whether a case took markedly longer than it should have, case-specific factors will inform how to characterize the delay: Jordan, at para. 51; K.J.M., at para. 75. Those factors will include the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.
[26] As for local conditions, trial judges “should ... employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: Jordan, at para. 89. At the end of the day, trial judges assessing whether the case has taken markedly longer than what was reasonably required are advised to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.
[27] I also note that, as for the Crown’s role in the matter, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded if the Crown has done its part to ensure that the matter proceed expeditiously: Jordan, at paras. 90, 112.
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[34] The application judge raises a valid practical concern about judicial resources. As she noted, it is one that is shared by Canada’s judicial leaders, who have publicly expressed the concern that delays in filling judicial vacancies have a detrimental effect on the administration of justice and the functioning of the courts. Here, however, the problem is that the application judge allowed her practical concern to cloud her legal analysis. In my view, there are several problems with the application judge’s approach.
[35] First, the focus was erroneously placed upon whether this and other cases could have been heard more quickly if all judicial vacancies had been filled. But the legal question was not whether the case could have or should have taken less time if there had been more judicial resources. As the Supreme Court explained in K.J.M., at para. 107, “the issue is not whether the case should reasonably have been completed in less time.” Rather, the issue is “whether the case took markedly longer than it reasonably should have”: K.J.M., at para. 107 (emphasis in original). In answering that question, the application judge should not have started from the position that the state acted unreasonably in failing to fill every judicial vacancy. Instead, she should have started from the position that the state brought the respondent to trial within a presumptively reasonable time, and, from that starting point, should have asked whether the respondent had rebutted the presumption of reasonableness.
[36] Second, the application judge found that the “failure to provide adequate judicial resources is unreasonable.” To be sure, judicial vacancies should be filled in a timely manner. About that, there is no question. But the reasonableness inquiry under s. 11(b) engages with a very specific legal framework. Although delays in filling judicial vacancies may be understandably described as “unreasonable” in a colloquial sense, it is not unreasonable, in and of itself, within the meaning of s. 11(b) of the Charter. Conflating those uses of the term unreasonable constitutes error.
[37] Third, the application judge found that, if all vacancies were filled, “it would be highly unusual for cases not to be heard when scheduled.” Again, that is not the legal question. The command of Jordan is not to ask whether the case could be heard when first scheduled, but whether it took markedly longer than it reasonably should have.
[38] As a practical matter, I would note that some jurisdictions in Ontario, including Toronto, schedule on the basis that not all trials will go ahead on their trial dates, especially first trial dates. As this court noted, “[t]he practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial” and “given the pressures on the parties to set dates in order to keep the case moving forward, ... a first trial date may be more aspirational as to timing than it is realistic”: R. v. Campbell, 2022 ONCA 223, 412 C.C.C. (3d) 510, at para. 24. Other reasons a case may not go ahead as scheduled include last-minute resolutions, sickness and so on.
[39] Whatever the reason, those trials that do not proceed on their trial dates fall within the “collapse rate”, something that has “always existed in the criminal courts”: R. v. Lui, 2024 ONSC 2022, at para. 26. As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or “stack” trial lists. Code J. noted this reality in the Toronto region: “[t]here are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably ‘collapse’, either on the trial date, shortly before the trial date, or shortly after the trial date”: Liu, at para. 27.
[40] A judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials. Done properly, stacking will generally reduce trial delays. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.
[41] In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 92 O.A.C. 345 (C.A.), at para. 27, aff’d 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.
[42] Fourth, the basis of some of the statements in the decision under review appear speculative. For instance, it is said that trials being set in 2022 “were set with the expectation that the court would have a full complement of judges at the time of the trials.” Similarly, it is said that cases were “scheduled with the expectation” that the court would have “adequate judicial resources”, an expectation that was not met because of unfilled judicial vacancies.
[43] Although those responsible for filling judicial vacancies must work with all diligence, the aspirational goal of a full complement of judges is not always realistic. As recognized in R. v. Als, 2024 ONSC 1428, at para. 45, “[o]ut of a complement of approximately 90 judges in the Toronto region, there will always be a certain degree of turnover that cannot be accurately forecast and there isn’t really a practical capacity to appoint judges on stand-by in excess of the statutory limits to await such un-forecast vacancies.” Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times,[1] but that is not the constitutional yardstick for determining whether there is unreasonable delay below the ceiling. Quite simply, if the accused was brought to trial within a reasonable time, it does not matter how many judicial vacancies there were and, conversely, if the accused is not brought to trial within a reasonable time, the fact there was a full complement of judges will not necessarily save the prosecution. . R. v. Mengistu [SOR]
In R. v. Mengistu (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown criminal appeal, here regarding Charter s.11(b) ['trial delay'] and it's appellate standard of review:[14] While the ultimate decision as to whether there has been unreasonable delay and the characterization of periods of delay are subject to a standard of correctness on review, the application judge’s findings of fact that underpin that analysis are reviewable on a standard of palpable and overriding error: R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 14; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, leave to appeal refused, [2019] S.C.C.A. No. 423, at para. 73. In particular, the assessment of whether a period of delay flows from a discrete event, and whether the Crown took reasonable steps to mitigate that delay, are fact-driven and therefore owed a high degree of deference: R. v. Safdar, 2021 ONCA 207, 403 C.C.C. (3d) 91, aff’d 2022 SCC 21, 414 C.C.C. (3d) 147, at paras. 46-51; Jordan, at para. 71. . R. v. Mengistu
In R. v. Mengistu (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown criminal appeal, here regarding Charter s.11(b) ['trial delay'].
Here the court considers whether 'judicial deliberation time' for interlocutory rulings should count as s.11(b) trial delay time:[23] Moreover, there are conflicting decisions from lower courts in Ontario on whether judicial deliberation time should be counted within the Jordan framework.[1] While this court is yet to pronounce on the issue,[2] appellate courts in other Canadian jurisdictions have taken divergent approaches on the matter of judicial deliberation time for interlocutory applications.[3] Meanwhile, in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, the Supreme Court of Canada determined that deliberation time for a final verdict following the completion of a trial should not be included in the Jordan ceiling, but did not address the issue of whether judicial deliberation time for interlocutory rulings should similarly be excluded. Since the matter has arisen in a number of different contexts and has potentially broad application, it is desirable and in the interests of justice that this court provide guidance and clarity for Ontario courts on the matter.
(b) As a general rule, judicial deliberation time for an interlocutory matter is included within the Jordan presumptive ceilings and is not deducted when calculating the period of actual delay
[24] As noted above, in KGK, the Supreme Court held that the time taken by a trial judge to render a decision after the evidence and closing arguments in a trial have been completed is not included in the presumptive ceilings established in Jordan. Moldaver J. noted that the Jordan ceilings were a specific solution designed to address the culture of complacency in bringing accused persons to trial. There was no suggestion in Jordan that verdict deliberation time formed part of the culture of complacency or that it contributed to the delays in bringing accused persons to trial. Further, including this time in the presumptive Jordan ceilings would make the adjudication of s. 11(b) motions speculative, since there would be no way of knowing how much time would be needed to render a verdict and thus no way to determine in advance the expiry of the Jordan presumptive ceilings.
[25] The Crown urges us to apply the same rule to judicial deliberation time required to render interlocutory decisions. The Crown argues that the judicial deliberation process should not be rushed, truncated, or eliminated because a judge is concerned about the Jordan ceiling. Moreover, the Crown has no ability to control the amount of time taken by a judge to render an interlocutory decision. Thus, to respect judicial independence and promote trial fairness, such deliberation time should not be considered as time included in the Jordan presumptive ceilings.
[26] In contrast, Mr. Mengistu argues that regular or normal interlocutory steps, like a ruling on committal after a preliminary hearing, are already accounted for in the Jordan ceilings. The Crown is, in effect, seeking to expand the presumptive Jordan ceilings above the existing 18- and 30-month limits. Moreover, temporarily pausing the Jordan clock for interlocutory decisions would run counter to the Supreme Court’s emphasis in both Jordan and KGK on promoting certainty and predictability in assessing delay for purposes of s. 11(b).
[27] I agree with Mr. Mengistu that judicial deliberation time for interlocutory decisions should generally be considered as already included within the existing Jordan ceilings. I do so for three reasons.
[28] First, the time needed for judges to render interlocutory decisions, although not expressly addressed in Jordan, is, in my view, implicitly accounted for in the presumptive ceilings established by the court. As noted in Jordan, there is little reason to be satisfied with presumptive ceilings on trial delay set at 18 or 30 months since, “[t]his is a long time to wait for justice”. Nevertheless, these relatively generous time limits reflect “the realities we currently face” (at para. 57). These “realities” include the “inherent time requirements of the case and the increased complexity of criminal cases” as well as “the significant role that process now plays in our criminal justice system” (at para. 53).
[29] Jordan further states, at para. 65, that, in setting the presumptive ceilings, the court had already taken into account procedural requirements such as interlocutory defence applications.
[30] Such interlocutory proceedings necessarily involve, not simply the time needed for counsel to prepare and make submissions, but for the judge to rule on them. So, too, with respect to the time needed to complete a preliminary inquiry, which involves not simply the evidence and arguments of counsel but also the committal decision by the judge. In my view, there is no principled basis upon which to bifurcate the evidence and argument phase from the judicial deliberation phase of such interlocutory proceedings for purposes of the Jordan analysis.
[31] Second, excluding judicial deliberation time from the presumptive Jordan ceilings would run counter to Jordan’s emphasis on certainty and predictability as a means to counter the culture of complacency towards delay in the criminal justice system. The Jordan framework provides clear presumptive time limits that can be calculated from the outset of a criminal proceeding. It significantly reduces the need to engage in complicated micro-counting. This clarity focuses all those involved in the criminal justice system on proactive, preventative, delay-reducing problem-solving, and promotes accountability.
[32] A new rule creating “time outs” during which the Jordan clock would cease to run would reintroduce the very uncertainty that Jordan sought to reduce. Because it would be impossible to know in advance how often or how long these time outs would occur, the predictability and accountability that Jordan sought to promote would be undermined.
[33] Third, I see no reason why including judicial deliberation time for interlocutory matters in the Jordan ceilings would undermine judicial independence. As Jordan emphasized, the presumptive time limits are intended to promote accountability on the part of all participants in the criminal justice system, including the courts themselves. Judges are well aware that they are required to deal with interlocutory proceedings in a fair, but also a timely and efficient manner, and have done so without any apparent difficulty in the eight years since Jordan’s presumptive ceilings have been in place. I see no reason to doubt that this will continue in the future.
[34] Nor is this inconsistent with KGK, which merely affirmed that the presumptive Jordan limits apply only up until the actual or anticipated end of the evidence and argument at trial, and do not include time needed for the judge to render a verdict following trial. As pointed out in KGK, the Jordan framework was designed so that it could be applied in a straightforward manner, thereby promoting predictability and accountability. These goals would be undermined if judicial deliberation time after evidence and argument at trial were included within the framework, since it would be impossible to know in advance the end date of the presumptive Jordan ceilings. Conversely, as explained above, excluding judicial deliberation time required to render interlocutory rulings from the Jordan framework would produce the same uncertainty that KGK indicated ought to be avoided. Thus, in my view, KGK supports, rather than contradicts, the inclusion of judicial deliberation time associated with interlocutory rulings within the Jordan presumptive ceilings.
[35] I therefore conclude that judicial deliberation time required to deal with interlocutory matters is generally included within the presumptive Jordan ceilings. .... . R. v. Musclow [IMPORTANT - formulaic presentation of the law, needs studying]
In R. v. Musclow (Ont CA, 2024) the Ontario Court of Appeal cites an earlier CA case's formulaic dictum, which can greatly assist in applying Charter s.11(b) ['trial delay'] doctrine:(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. . Clancy v. Farid
In Clancy v. Farid (Ont CA, 2024) the Ontario Court of Appeal considered the application of Charter s.11(b) [trial delay] to contempt proceedings:[56] Some courts have observed that it is arguable that a civil motion for contempt is subject to the guarantee in s. 11(b) of the Charter that “any person charged with an offence has the right … to be tried within a reasonable time”: see e.g., Lymer v. Jonsson, 2023 ABCA 367, [2024] A.W.L.D. 1281, at para. 32; St-Amour c. Major, 2017 QCCS 2352, 141 W.C.B. (2d) 749. But even accepting that, Mr. Farid has not shown an arguable case that there was a delay beyond the Jordan ceiling.
[57] The Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at para. 31.The hearing before Ramsay J. resulting in her March 4, 2022 summary judgment (and the dismissal of the contempt motion) concluded on September 2, 2021. Mr. Farid has not identified how the “charge” of civil contempt – the bringing of the motion seeking that finding – could be said to have begun more than 30 months before September 2, 2021. Nor does the record for this motion contain any information that would allow that conclusion to be drawn.
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