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Criminal - Re-trials. R. v. Coates
In R. v. Coates (Ont CA, 2023) the Court of Appeal considered the unique Charter 11(b) trial delay factors in retrials:[48] The Crown argues that the SCAJ erred by holding it to the hightened level of urgency that this court prescribed for scheduling retrials in MacIsaac.
[49] MacIsaac was an appeal arising out of a retrial. Retrials raise unique considerations in the s. 11(b) context. In a retrial, the Crown bears a special burden, over and above its duty from Jordan, to re-try the accused “as soon as possible:” MacIsaac, at para 23; see also R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 143 O.A.C. 1, at para. 55. It is within this context that this court in MacIsaac faulted the Crown for insisting on scheduling a ten-day retrial over consecutive days: at paras 61-65.
[50] An accused subject to a retrial following a successful appeal will generally spend more time overall within the criminal justice system than an accused facing their first trial, even delayed by the pandemic. Appellate delay, which for pragmatic reasons is not dealt with as rigidly as trial delay, increases the total time the case stays “in the system.” When the case is remitted back to the trial court, local needs and administrative convenience are compromised to ensure the case is given priority.
[51] However, the same special circumstances do not apply to trials, where more deference can be afforded to local conditions. And it does not apply in this case. While retrials constitute a small percentage of ongoing criminal matters, the trial judge, who was a local administrative judge, noted that COVID-19 had put on hold “hundreds and probably more realistically thousands of cases” in his jurisdiction alone.
[52] Since this court decided MacIsaac, the Supreme Court has addressed the interaction between s. 11(b) and retrials in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216. J.F. expressly accepted MacIsaac’s holding that retrials should be prioritized when scheduling hearings, and should generally take less time than a first trial: at paras 70-71. However, the Supreme Court also emphasized that the analysis remains contextual to the circumstances of the particular case: at para. 73. This call to consider case-specific context echoes the Supreme Court’s general resistance to add additional bright-line rules to the s. 11(b) analysis post-Jordan: see R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 65; J.F., at para. 66.
[53] Accordingly, MacIsaac should not be understood as imposing a bright-line rule on scheduling non-consecutive over consecutive trial dates in the COVID-19 exceptional circumstance context. The SCAJ's reliance on MacIsaac in this case was not apt. The same considerations that must be taken into account in rescheduling a retrial do not necessarily apply to a case (such as this one) that had to be adjourned due to the closure of the courts following COVID-19.
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