Focus On

CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Procedural rights - Delay - Trial within a reasonable time

Friday, September 22, 2017 @ 8:47 AM  


Lexis Advance® Quicklaw®
Appeal by the Crown from an order staying the proceedings against the accused. The accused was charged with first degree murder. The information was sworn in December 2012. After a bail hearing held in May and June 2013, the accused was detained in custody. Over the next several months, the accused retained new counsel. The accused was committed to stand trial in March 2015. The trial was scheduled to conclude in December 2016, 48 months after the information was sworn. While earlier trial dates were available, the Crown was not prepared to accept them and insisted on scheduling dates when both senior Crowns assigned to the case were available. The accused’s motion to expedite the proceeding, which was opposed by the Crown, was dismissed. Less than one week before the start of trial, the accused applied for a stay of proceedings. He argued that his rights under s. 11(b) of the Charter were infringed, as the delay was above the presumptive ceiling of 30 months and there were no exceptional circumstances. The judge allowed the application finding that the accused’s right to be tried within a reasonable time was infringed. She found that the total delay exceeded the presumptive ceiling. She found that the matter was not particularly complex and that there were no exceptional transitional circumstances that justified the delay. She also found that the accused had experienced significant prejudice given that he had been in custody the entire time. Finally, she concluded that because the charge was very serious, the justice system had to work to ensure that the matter was tried within a reasonable time, and it did not. The Crown appealed, arguing that it was prejudiced by the lateness of the s. 11(b) application, and that the judge erred in her attribution of defence-caused delay, her assessment of the complexity of the case and her application of the transitional exceptional circumstance under Jordan.

HELD: Appeal allowed. The judge erred in her consideration of the complexity of the case. In assessing whether there was an exceptional circumstance, the judge focused her analysis of the complexity of the case on how the case would present at trial, rather than considering the complexity of the case more broadly over the course of the entire proceeding. She also failed to consider the complexity of the case in her analysis of the transitional exceptional circumstance. Furthermore, and more importantly, the judge erred in her application of the transitional exceptional circumstance under Jordan. The charge in this case predated Jordan and was a few months from trial when Jordan was released. Under the Morin framework, the total delay of 48 months was made up of eight months of defence delay, seven months of Crown delay, seven months of institutional delay and 26 months of inherent time requirements. While the length of the delay was a concern and there was significant prejudice to the accused’s liberty interest, there was no suggestion of prejudice to the accused’s right to a fair trial. The prejudice to the accused was further mitigated by several factors, including the fact that more than half of the delay was inherent, the matter was somewhat complex, and eight months of the delay was attributable to the defence. As a result, the Crown delay totaled 14 months, which was at the bottom end of the Morin guideline of 14 to 18 months, and it would not have resulted in a stay. Where, as here, the matter was prosecuted almost entirely prior to Jordan’s release and the delay would not, under the framework that was in place prior to Jordan, have resulted in a stay, the parties’ behaviour should not be judged strictly against a standard of which they had no notice. Reasonable reliance on the law constituted an exceptional circumstance in this transitional period.

R. v. Picard, [2017] O.J. No. 4608, Ontario Court of Appeal, D.H. Doherty, P.S. Rouleau and S.E. Pepall JJ.A., September 7, 2017. Digest No. TLD-Sept182017012