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Ontario Court of Appeal reaffirms responsibility for Jordan delays lies with Crown

Tuesday, September 22, 2020 @ 4:03 PM | By John Schofield

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Highlighting the Crown’s duty to prevent court delays, the Ontario Court of Appeal has rejected a Crown argument that the absence of three judges due to illness and an education seminar caused an unavoidable delay that warranted extending the trial of a man charged with aggravated assault beyond the 18-month Jordan limit.

In a brief, Sept. 15 decision in R. v. Perreault 2020 ONCA 580, the Court of Appeal upheld a December 2018 order by Justice David Berg of the Ontario Court of Justice to stay the proceedings against Francois Perreault under s. 11(b) of the Canadian Charter of Rights and Freedoms. Perreault was originally charged in May 2017. 

“The Crown at large is responsible for preventing systemic delay,” Court of Appeal Justice David M. Paciocco wrote for the three-judge panel, which included Justices Ian Nordheimer and Julie Thorburn.

“If courts are left understaffed because judges are required to attend judicial education programs,” he added, “this is a systemic or institutional problem, not an exceptional circumstance. It is also a problem that is avoidable if adequate judicial resources are made available to conduct trials within a reasonable time within a system that appropriately requires judicial education.”

The Appeal Court agreed that the unexpected illness of another judge on the expected trial date was an exceptional circumstance. However, “the Crown has not met its burden of showing that this judge’s illness explains the loss of Mr. Perreault’s trial dates,” it ruled.

In line with R. v. Jordan 2016 SCC 27, the Crown must show that a delay is “reasonably unforeseen or reasonably unavoidable” for it to qualify as an “exceptional circumstance” justifying a trial delay beyond 18 months.

According to the facts of the case detailed in the decision, the Crown had scheduled Perreault’s first trial dates for Nov. 21-22, 2018, less than a week before the 18-month Jordan deadline.

“There was no margin for error,” the Court of Appeal noted. “Yet, Mr. Perreault’s case was set to be heard in an overbooked court. For example, twenty-five matters were set to be heard on November 21, 2018, in what turned out to be six provincial courtrooms open for trials in the notoriously busy Ottawa jurisdiction.”

Perreault showed up for his trial on both days, according to the decision, but the situation was no better on Nov. 22 and no judge was available on either day to hear his case. It was adjourned outside the Jordan deadline.

In its appeal, the Crown argued that the trial judge erred in staying Perreault’s prosecution because “exceptional circumstances” brought about by the illness of one judge and two judges attending the compulsory education program caused the loss of the two trial dates.

The Court of Appeal disagreed. In the case of the judge’s illness, it determined, the priority given to federal cases over provincial matters meant that Perreault’s trial may not have been heard anyway.

“We cannot find, in the circumstances, that Mr. Perreault’s matter would have been heard had a trial judge not been ill,” wrote Justice Paciocco. “What we do know is that Mr. Perreault’s matter would have been heard had sufficient judges been scheduled to preside on Mr. Perreault’s set trial dates. The Crown’s appeal is therefore dismissed.”

Howard Krongold, Abergel Goldstein & Partners LLP

Howard Krongold, a partner with Ottawa-based Abergel Goldstein & Partners LLP who served as counsel for Perreault, said the decision reinforces that the Crown was ultimately responsible for the delay in his trial and the subsequent staying of his charges.

“The vast majority of court delay in Canada is caused by resource limitations on the court system — often that means not enough judges,” he said in an e-mail to The Lawyer’s Daily. “Even though individual Crown attorney’s offices don’t themselves control the appointment of judges or the resourcing of the courts, this case confirms that they cannot disclaim responsibility when court resources are inadequate.”

While Perreault was not incarcerated pending his trial, the long wait for his trial and having the charges hanging over him was not easy for him, said Krongold. “He has been waiting an extraordinarily long time to have this matter finally concluded,” he added. “But he’s very happy that he got some redress for the unfortunate treatment he received from the justice system.”

Lawyer Paul M. Bourassa, a former federal Crown prosecutor and a sole practitioner with Calgary-based Bourassa Law & Strategic Services, said the Crown’s case was weakened because it could not demonstrate that it had tried for some time to advance the case.

Paul M. Bourassa, Bourassa Law & Strategic Services

“I think the court will have a tremendous amount of sympathy, so to speak,” he told The Lawyer’s Daily, “if the Crown can show that it’s been consistently trying to advance a prosecution or advance a case, even in the face of a lack of judicial resources.”

One of the goals of the Supreme Court of Canada’s 2016 decision in Jordan was to spur the allocation of more resources into the judicial system, said Bourassa. But governments have not been forthcoming and hundreds of cases have effectively been cancelled since the decision was handed down.

“In Alberta and across the board, the courts, the Crown they all looked at how do we make things more efficient and use the resources we have in a very judicious fashion to make sure we’re complying with Jordan,” said Bourassa, who served as a federal prosecutor in Calgary until 2018.

“Of course, getting more resources would be good, too,” he added. “But I just get the sense that the message from governments was, well, you know, times are tight. There may not be a whole lot more augmentation in funding, so take a look and see what you have and what you can do first. And I think this case in Perreault is an example.”

Bourassa said s. 2.3 of the Public Prosecution Service of Canada Deskbook presents a decision-to-prosecute test designed to help federal prosecutors streamline their caseload as much as possible.

In deciding whether to initiate and conduct a prosecution, he explained, Crown counsel must consider two issues: Is there a reasonable prospect of conviction based on evidence that is likely to be available at trial? And, if there is, would a prosecution best serve the public interest? If the answer to either question is no, he added, the test is not met and the prosecution cannot proceed.

Tony Loparco, president of the Ontario Crown Attorneys Association, referred questions to the Ontario Ministry of the Attorney General.

Maher Abdurahman, a spokesperson for the Ministry of the Attorney General, said it would be inappropriate to comment on the case because it is still in the appeal period. He did not respond to a question asking if the government intends to seek leave to appeal the Perreault decision to the Supreme Court of Canada.

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