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Charter - Section 11(b) - Trial Delay (2). 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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