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CONSTITUTIONAL ISSUES - Legal rights - Trial within a reasonable time

Monday, December 17, 2018 @ 6:24 AM  


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Appeal by the accused, Noftall, from the refusal of a judicial stay based on a violation of his s. 11(b) Charter rights. In June 2017, the accused was convicted and sentenced for conspiracy to traffic drugs. Prior to trial, he sought a stay based on a breach of his right to be tried within a reasonable time arising from an anticipated delay of 52 months. The stay application was dismissed at first instance. The application judge subtracted five months due to complex disclosure, five months for a defence abuse of process application that was withdrawn, and 17.5 months for a disclosure application regarding police dealings with confidential informants. The application judge concluded that the remaining 24.5-month delay was below the 30-month presumptive ceiling established in Jordan and denied the relief sought. Following his conviction and prior to sentencing, the accused sought reconsideration on the basis of the 2017 Supreme Court of Canada Cody decision. The application judge concluded he had jurisdiction to hear the reconsideration application, but refused the relief sought. The application judge altered the various delays to find that the presumptive ceiling was exceeded, but that on balance, the delay over the ceiling was justified. The accused appealed.

HELD: Appeal dismissed. The Cody decision constituted an exceptional circumstance that warranted reconsideration. No new evidence was required for the reconsideration. The initial application judge had jurisdiction for the reconsideration application. The decision to reduce the deduction was owed deference, but it preceded Jordan and therefore required assessment under the transitional exceptional circumstance. The Crown conceded that the only period of delay that should have been deducted was the 17.5 months related to the informant disclosure application. Factoring in a further two-month delay for setting the application, the resulting 36.5-month delay exceeded the Jordan ceiling. Applying the framework set out in Jordan and Cody, the Crown established the presence of exceptional circumstances related to the complexity of the case, thereby rebutting the presumption that the delay was unreasonable.

R. v. Noftall, [2018] N.J. No. 340, Newfoundland and Labrador Court of Appeal, D.E. Fry J., B.G. Welsh and L.R. Hoegg JJ.A., November 13, 2018. Digest No. TLD-December172018001