CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Procedural rights

Appeal by several accused from convictions for various offences relating to a conspiracy to import and traffic in cocaine. The appellants argued the trial judge erred in dismissing their applications for a stay of proceedings due to delay by failing to properly apply the Jordan case. The appellants were arrested in 2014. Documentary disclosure was in excess of 250,000 documents. The Crown intended to call 220 witnesses, including 85 surveillance witnesses and 22 expert witnesses. The parties agreed that the net delay between the date of the charges and the anticipated end of the trial was 35 months. Five of the appellants’ trials were in fact completed under the Jordan ceiling and two were tried within 32.5 months. The Crown did not seek to attribute any of the total delay to defence conduct and it was agreed that the defence did not waive any delay. The application judge found that this case had many of the hallmarks of a particularly complex case. The application judge found that a 30-month presumptive ceiling applied because the case was tried in the Superior Court. He found that the projected delay to the end of trial was 35 months, and that the Crown discharged its burden of proving that the delay was justified by the complexity of the case. He found that the Crown had a plan to manage that complexity and the plan was implemented in a reasonable manner. The appellants argued that because the Crown preferred an indictment while the case was in the Ontario Court of Justice, and no preliminary inquiry was held, this became a one-stage proceeding and the applicable Jordan ceiling should be 18 months. They argued the application judge failed to consider the Crown’s delay in preferring the indictment, which resulted in wasted seven and one-half months in the Ontario Court of Justice and that the application judge failed to recognize, and to account for, systemic or institutional delay in the courts below.

HELD: Appeal dismissed. The application judge correctly found that a 30-month presumptive ceiling applied because the case was tried in the Superior Court. Even if the applicable period of delay was the 35 months projected by the application judge, and not the shorter periods within which the appellants were tried, there was no error in the application judge’s careful and thorough analysis. The application judge correctly applied the principles in Jordan and his assessment of the complexity of the case was entitled to deference. The application judge’s conclusion that the Crown’s plan to manage the case was reasonable was fully supported by the evidence. The Crown was not required to explain the delay in preferring the indictment and the delay did not reduce the presumptive ceiling. While there was some institutional delay, particularly in the provincial court, Jordan recognized that institutional delay would occur and made provision for it in the presumptive ceiling.

R. v. Bulhosen, [2019] O.J. No. 3666, Ontario Court of Appeal, G.R. Strathy C.J.O., D. Watt and B. Zarnett JJ.A., July 15, 2019. Digest No. TLD-August26019011