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CONSTITUTIONAL ISSUES - Legal rights - Procedural rights - Delay

Tuesday, October 22, 2019 @ 8:34 AM  


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Appeal by the Crown from a stay of proceedings involving the accused, Charley. The accused faced charges related to an armed robbery of a convenience store that occurred in 2015. Following a 2017 trial that ended in conviction in January 2018, and prior to sentencing scheduled for September 2018, the accused sought a stay of proceedings based on a breach of his s. 11(b) Charter rights. The trial judge applied the presumptive 30-month ceiling established in Jordan to the period commencing with the laying of charges to the entire delay prior to the anticipated sentencing date. The trial judge found a 32-month net delay, accounting for certain deductions. The trial judge held that the Crown failed to discharge its onus showing the delay was reasonable. A stay of proceedings was entered. The Crown appealed on the basis that post-verdict delay was not subject to the presumptive ceiling established in Jordan, that the defence bore the burden of proving post-verdict delay was unreasonable, and that any such unreasonableness was not established in this case. The parties agreed that no unreasonableness arose with respect to pre-trial delay. At issue on appeal was the treatment of the seven-month post-verdict delay for the purpose of the s. 11(b) claim.

HELD: Appeal allowed. A separate presumptive reasonableness ceiling applied to post-verdict delay that was to be considered based on the analysis established in Jordan. The point at which post-verdict delay became presumptively unreasonable was measureable strictly by reference to the period of post-verdict delay, and not by reference to the pre-verdict presumptive ceilings designed to distinguish between tolerable and unconstitutional delay at the pre-verdict stage. A five-month post-verdict delay was the presumptive ceiling for unreasonableness. Accounting for the exceptional circumstances associated with the Crown's application for a psychiatric assessment of the accused, the post-verdict delay in this case did not exceed the five-month presumptive ceiling. There was no suggestion that the delay, even if below the presumptive ceiling, was nonetheless unreasonable in the circumstances. The stay of proceedings was set aside, and the trial verdict was affirmed. The matter was remitted to the trial court for sentencing.

R. v. Charley, [2019] O.J. No. 4693, Ontario Court of Appeal, D.H. Doherty, M.L. Benotto and G. Huscroft JJ.A., September 19, 2019. Digest No. TLD-October212019006