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Charter - s.11(b) Trial Delay - Waiver. R. v. Long
In R. v. Long (Ont CA, 2023) the Court of Appeal considered 'waiver' as it is an element of the Charter 11(b) test (with 'delay') under the leading case of Jordan (SCC, 2016):[41] The Crown also argues, relying on J.F., that defence counsel had a positive obligation to voice concerns about the first trial dates when they were set at the February 27, 2020 pretrial. Having failed to do so, it submits that the appellant is precluded from making this new argument on appeal.
[42] J.F. dealt with a stay of proceedings for unreasonable delay in the context of a retrial. The Supreme Court held that an accused who raises the unreasonableness of delay after trial and after conviction is generally not acting in a timely manner. This of course is not this case. Here, the appellant did bring his s. 11(b) application before trial. At para. 30 of J.F., Wagner C.J. reiterated the principle established in Jordan at paras. 137-139 that “at all stages of the trial process, everyone must take proactive measures to remedy any delay.” However, this principle is not independent from Jordan’s direction that defence delay has two components: waiver and delay caused solely by the conduct of the defence. If the delay does not fall into one of those two categories, based on Jordan, there is no basis to penalize the defence in the calculation of delay.
[43] Standing alone, this principle of proactivity is insufficient to defeat the appellant’s request that this court consider his new argument that was not advanced before the trial judge.
[44] Chief Justice Wagner also addressed waiver in J.F. in some detail. Waiver must be clear and unequivocal: J.F., at para. 47; Jordan, at para. 61; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, at p. 790; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1228. At para. 47 of J.F., the court cited Askov stating: “[T]here must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.” Waiver is established on the basis of the accused’s conduct, having regard to the circumstances of each case: J.F., at para. 49.
[45] On appeal the Crown did not press waiver. This was reasonable. There is nothing in the evidence to suggest that any of the elements of waiver have been established. Given my conclusion that the defence was acting under an erroneous s. 11(b) calculation at trial, his conduct in not objecting to the original trial dates or raising his pre-COVID delay argument before the trial judge on the s. 11(b) application was not a deliberate and informed waiver of the right to trial within a reasonable time. An inadvertent miscalculation cannot amount to waiver.
[46] I would also reiterate that although requested, the Crown did not obtain a s. 11(b) waiver before consenting to the re-election for trial in the OCJ. . R. v. Vallotton
In R. v. Vallotton (Ont CA, 2024) the Ontario Court of Appeal allowed a Charter s.11(b) trial delay appeal, here involving the trial judge's "allocation of two periods of delay as defence delay".
Here the court considers 'waiver of delay' as it reduces trial delay:[3] The appellant appeals his convictions. He submits that the motion judge erred in applying s. 11(b) of the Charter. For the reasons below, I would allow the appeal. The motion judge erred in his allocation of two periods of delay as defence delay. When these errors are corrected, the net delay exceeds the presumptive ceiling of 18 months for cases in the provincial court: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The proceedings must be stayed under s. 24(1) of the Charter.
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(b) Waiver of Delay and the Notice of the s. 11(b) Motion
[27] The appellant submits, and the Crown concedes, that the motion judge erred by inferring that the defence waived the period of time between the set date and the trial dates. During submissions on the s. 11(b) motion, this would appear to have been the most contentious issue between the parties.
[28] At the time the motion was argued, neither the motion judge nor counsel had the benefit of the Supreme Court of Canada’s decision in R. v. J.F., 2022 SCC 17, 413 C.C.C. (3d) 293, which held that “waiver of the delay cannot be inferred solely from the accused’s silence or failure to act” (at para. 44); any waiver must be clear and unequivocal (at paras. 45-48).
[29] There was nothing in defence counsel’s conduct that could warrant a finding that there was a clear and unequivocal waiver of his client’s rights under s. 11(b) of the Charter. The Crown on appeal does not suggest otherwise. However, he makes an alternative submission. The Crown submits that, because the appellant was tardy in raising the s. 11(b) issue, he should be responsible for some portion of the delay between the set date and the trial date. Relying on some trial decisions, the respondent submits that a “grace period” of 30 days should be recognized as a reasonable period of time for counsel to consider bringing a s. 11(b) motion. Thereafter, the allocation for the residual delay should be shared 50/50 by the Crown and the defence.
[30] The theory behind this approach is that delays in initiating s. 11(b) proceedings hamper the Crown’s ability to respond to the complaint and work towards expediting the trial. I also note that it may deprive trial courts from utilizing the previously set trial dates that may not be used. In this case, there was never any indication that earlier trial dates could have been arranged had notice been provided sooner. The Crown and the defence had just recently set mutually agreeable trial dates. Presumably, had earlier dates been available, subject to counsel’s availability, they would have been captured.
[31] In J.F., the Supreme Court of Canada recognized that an accused person has a duty to raise an infringement of their right to be tried within a reasonable time in a timely manner, and that “[i]naction may be considered illegitimate conduct, and the delay associated with it may be attributed to the defence”: at para. 52. Because J.F. was decided after the motion in this case, we do not have the benefit of the motion judge’s findings on this issue. However, the record does not support the conclusion there was any “illegitimate conduct” on the part of the defence in initiating his s. 11(b) motion. Nor does the record establish that defence counsel’s timing deprived the Crown of the ability to mitigate the delay by obtaining earlier trial dates.
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