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Charter - Section 11(b) - Trial Delay


Part 2

. R. v. Vallotton

In R. v. Vallotton (Ont CA, 2024) the Ontario Court of Appeal allowed a Charter s.11(b) trial delay appeal, here involving the trial judge's "allocation of two periods of delay as defence delay".

Here the court considers 'waiver of delay' as it reduces trial delay:
[3] The appellant appeals his convictions. He submits that the motion judge erred in applying s. 11(b) of the Charter. For the reasons below, I would allow the appeal. The motion judge erred in his allocation of two periods of delay as defence delay. When these errors are corrected, the net delay exceeds the presumptive ceiling of 18 months for cases in the provincial court: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The proceedings must be stayed under s. 24(1) of the Charter.


(b) Waiver of Delay and the Notice of the s. 11(b) Motion

[27] The appellant submits, and the Crown concedes, that the motion judge erred by inferring that the defence waived the period of time between the set date and the trial dates. During submissions on the s. 11(b) motion, this would appear to have been the most contentious issue between the parties.

[28] At the time the motion was argued, neither the motion judge nor counsel had the benefit of the Supreme Court of Canada’s decision in R. v. J.F., 2022 SCC 17, 413 C.C.C. (3d) 293, which held that “waiver of the delay cannot be inferred solely from the accused’s silence or failure to act” (at para. 44); any waiver must be clear and unequivocal (at paras. 45-48).

[29] There was nothing in defence counsel’s conduct that could warrant a finding that there was a clear and unequivocal waiver of his client’s rights under s. 11(b) of the Charter. The Crown on appeal does not suggest otherwise. However, he makes an alternative submission. The Crown submits that, because the appellant was tardy in raising the s. 11(b) issue, he should be responsible for some portion of the delay between the set date and the trial date. Relying on some trial decisions, the respondent submits that a “grace period” of 30 days should be recognized as a reasonable period of time for counsel to consider bringing a s. 11(b) motion. Thereafter, the allocation for the residual delay should be shared 50/50 by the Crown and the defence.

[30] The theory behind this approach is that delays in initiating s. 11(b) proceedings hamper the Crown’s ability to respond to the complaint and work towards expediting the trial. I also note that it may deprive trial courts from utilizing the previously set trial dates that may not be used. In this case, there was never any indication that earlier trial dates could have been arranged had notice been provided sooner. The Crown and the defence had just recently set mutually agreeable trial dates. Presumably, had earlier dates been available, subject to counsel’s availability, they would have been captured.

[31] In J.F., the Supreme Court of Canada recognized that an accused person has a duty to raise an infringement of their right to be tried within a reasonable time in a timely manner, and that “[i]naction may be considered illegitimate conduct, and the delay associated with it may be attributed to the defence”: at para. 52. Because J.F. was decided after the motion in this case, we do not have the benefit of the motion judge’s findings on this issue. However, the record does not support the conclusion there was any “illegitimate conduct” on the part of the defence in initiating his s. 11(b) motion. Nor does the record establish that defence counsel’s timing deprived the Crown of the ability to mitigate the delay by obtaining earlier trial dates.
. R. v. Jacques-Taylor

In R. v. Jacques-Taylor (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal on Charter trial delay [s.11(b)], here where the trial judge stayed the charges:
[4] The application judge concluded that the net total delay was 18 months and 2 weeks, placing it two weeks over the presumptive 18-month Jordan ceiling: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In coming to this conclusion, he deducted only the month of September 2023 as defence delay, when respondent’s counsel was not available. He also deducted three months to account for the COVID-19 backlog in the court system.

[5] The Crown submits that the application judge erred by not deducting the full 55 days from August 8, 2023 to October 2, 2023. In particular, it submits the application judge erred: (i) by treating the “contextual approach” outlined in R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1, as applicable to the initial setting of dates; (ii) in failing to deduct the delay arising from counsel for the co-accused’s unavailability; and (iii) in deciding that the Crown should have mitigated the delay arising from the joint prosecution by severing the respondent.

[6] We do not accept these submissions.

[7] As the application judge found, Hanan mandates that, “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”: Hanan, at para. 9 There is no categorical approach: see Hanan, at para. 9; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para 46.

[8] In declining to deduct the delay arising from a co-accused’s unavailability, the application judge referred to this court’s decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, where the Crown argument “that delay by one accused should be attributed to all”, was rejected. This court held instead that, “an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused”: at para. 128. The application judge in this case found as fact that the co-accused did not proceed as a collective. This finding is supported by the evidence and entitled to deference: see Gopie, at paras. 128-136.
. R. v. Coates

In R. v. Coates (Ont CA, 2023) the Court of Appeal considered the unique Charter 11(b) trial delay factors in retrials:
[48] The Crown argues that the SCAJ erred by holding it to the hightened level of urgency that this court prescribed for scheduling retrials in MacIsaac.

[49] MacIsaac was an appeal arising out of a retrial. Retrials raise unique considerations in the s. 11(b) context. In a retrial, the Crown bears a special burden, over and above its duty from Jordan, to re-try the accused “as soon as possible:” MacIsaac, at para 23; see also R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 143 O.A.C. 1, at para. 55. It is within this context that this court in MacIsaac faulted the Crown for insisting on scheduling a ten-day retrial over consecutive days: at paras 61-65.

[50] An accused subject to a retrial following a successful appeal will generally spend more time overall within the criminal justice system than an accused facing their first trial, even delayed by the pandemic. Appellate delay, which for pragmatic reasons is not dealt with as rigidly as trial delay, increases the total time the case stays “in the system.” When the case is remitted back to the trial court, local needs and administrative convenience are compromised to ensure the case is given priority.

[51] However, the same special circumstances do not apply to trials, where more deference can be afforded to local conditions. And it does not apply in this case. While retrials constitute a small percentage of ongoing criminal matters, the trial judge, who was a local administrative judge, noted that COVID-19 had put on hold “hundreds and probably more realistically thousands of cases” in his jurisdiction alone.

[52] Since this court decided MacIsaac, the Supreme Court has addressed the interaction between s. 11(b) and retrials in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216. J.F. expressly accepted MacIsaac’s holding that retrials should be prioritized when scheduling hearings, and should generally take less time than a first trial: at paras 70-71. However, the Supreme Court also emphasized that the analysis remains contextual to the circumstances of the particular case: at para. 73. This call to consider case-specific context echoes the Supreme Court’s general resistance to add additional bright-line rules to the s. 11(b) analysis post-Jordan: see R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 65; J.F., at para. 66.

[53] Accordingly, MacIsaac should not be understood as imposing a bright-line rule on scheduling non-consecutive over consecutive trial dates in the COVID-19 exceptional circumstance context. The SCAJ's reliance on MacIsaac in this case was not apt. The same considerations that must be taken into account in rescheduling a retrial do not necessarily apply to a case (such as this one) that had to be adjourned due to the closure of the courts following COVID-19.
. R. v. Blake

In R. v. Blake (Ont CA, 2023) the Court of Appeal considered a Charter s.11(b) trial delay appeal, here the issue being the 'complexity' of the cases:
[2] In Ms. Blake’s s. 11(b) application, the application judge found that, although the net delay was moderately above 30 months, the complexity of the case justified the delay beyond the presumptive ceiling. The assessment of complexity for both matters is identical, as the appellants were co-accused. Jordan is clear that the assessment of complexity of a given case is a matter “well within the trial judge’s expertise” (at para. 79). Thus, the factual findings of the application judge are entitled to deference. We would not interfere with the finding of the application judge in Ms. Blake’s case that the complexity of the matter justified the additional delay. This finding is equally applicable to both appellants.
. R. v. Moreira

In R. v. Moreira (Ont CA, 2023) the Court of Appeal briefly considered an appeal of a Charter 11(b) 'undue delay' argument:
(6) The Sixth Ground of Appeal: Whether the Trial Judge Erred in Refusing the Dismiss the Charges for Delay

[97] The appellants claim that the trial judge erred in dismissing their motion to stay the indictment for delay under s. 11(b) of the Charter of Rights and Freedoms.[1] The total time between the time charges were laid and the end of the second trial was 32 months and 16 days. Although the defence conceded that six days should be deducted for defence delay based on various adjournments sought during trial, the delay still exceeds the 30-month Jordan ceiling.

[98] First, the appellants claim that the trial judge erred in finding that the case was complex. Second, the appellants claim the trial judge erred in finding that the mistrial was a discrete event justifying delay over the presumptive ceiling because, in doing so, he assessed the correctness of the mistrial ruling.

[99] The appellants claim this is problematic as: (i) the rules of judicial comity and res judicata create a presumption in favour of not relitigating issues that have already been decided; (ii) the trial judge had no evidentiary record before him to properly understand why a mistrial was granted; and (iii) granting a mistrial is a discretionary ruling based on the perceived impact of conduct on trial fairness.

[100] For the reasons that follow, I believe that whether or not the mistrial application was a discrete event, the trial judge did not err in refusing to dismiss for delay.

[101] The trial judge found that this was a complex case. There were 3 accused, over 90 witnesses, 150,000 video clips, and numerous transcripts and recordings to be reviewed. The defence intended to call 12 witnesses at the preliminary inquiry. In addition to the volume of the case, the legal issues were also challenging. In advance of the preliminary hearing, the defence unreasonably refused to concede identity or that only two Mr. Big witnesses were required to testify. Furthermore, the trial dealt with a variety of legal issues including cause of death, party liability, intoxication, the admission of Moreira’s utterances and the Mr. Big statements, after-the-fact conduct, and the required intent for murder.

[102] The trial judge’s decision to treat these as exceptional circumstances that justified a delay that slightly exceeded the 30-month time limit is entitled to deference in this court. I would therefore dismiss this ground of appeal.
. R. v. Long

In R. v. Long (Ont CA, 2023) the Court of Appeal considered 'waiver' as it is an element of the Charter 11(b) test (with 'delay') under the leading case of Jordan (SCC, 2016):
[41] The Crown also argues, relying on J.F., that defence counsel had a positive obligation to voice concerns about the first trial dates when they were set at the February 27, 2020 pretrial. Having failed to do so, it submits that the appellant is precluded from making this new argument on appeal.

[42] J.F. dealt with a stay of proceedings for unreasonable delay in the context of a retrial. The Supreme Court held that an accused who raises the unreasonableness of delay after trial and after conviction is generally not acting in a timely manner. This of course is not this case. Here, the appellant did bring his s. 11(b) application before trial. At para. 30 of J.F., Wagner C.J. reiterated the principle established in Jordan at paras. 137-139 that “at all stages of the trial process, everyone must take proactive measures to remedy any delay.” However, this principle is not independent from Jordan’s direction that defence delay has two components: waiver and delay caused solely by the conduct of the defence. If the delay does not fall into one of those two categories, based on Jordan, there is no basis to penalize the defence in the calculation of delay.

[43] Standing alone, this principle of proactivity is insufficient to defeat the appellant’s request that this court consider his new argument that was not advanced before the trial judge.

[44] Chief Justice Wagner also addressed waiver in J.F. in some detail. Waiver must be clear and unequivocal: J.F., at para. 47; Jordan, at para. 61; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, at p. 790; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1228. At para. 47 of J.F., the court cited Askov stating: “[T]here must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.” Waiver is established on the basis of the accused’s conduct, having regard to the circumstances of each case: J.F., at para. 49.

[45] On appeal the Crown did not press waiver. This was reasonable. There is nothing in the evidence to suggest that any of the elements of waiver have been established. Given my conclusion that the defence was acting under an erroneous s. 11(b) calculation at trial, his conduct in not objecting to the original trial dates or raising his pre-COVID delay argument before the trial judge on the s. 11(b) application was not a deliberate and informed waiver of the right to trial within a reasonable time. An inadvertent miscalculation cannot amount to waiver.

[46] I would also reiterate that although requested, the Crown did not obtain a s. 11(b) waiver before consenting to the re-election for trial in the OCJ.
. R. v. Long

In R. v. Long (Ont CA, 2023) the Court of Appeal considered the appellate standard of review for criminal 'trial delay' appeals [under Charter s.11(b)], here as it relates to fresh law on appeal:
(a) Appellant’s Ability to Raise New Argument on Appeal

[36] For the following reasons, I conclude that it is open to this court to consider the appellant’s new argument on appeal.

[37] The designation of periods of delay is a matter of law, attracting a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.

[38] It is well established that on an appeal from a decision on a s. 11(b) application, this court is not bound by erroneous concessions: R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at para. 63; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 31; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19; R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 10; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 102; and R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 71.[3] The rationale for refusing to be bound is grounded in the standard of review: we are to determine whether the trial judge’s delay designations were legally correct.

[39] A review of the transcript of proceedings shows that counsel mistakenly understood that the delay between November 16, 2018 (when the charges were first laid) and June 16, 2020 (when the trial was to end) was under 18 months when in fact it was not.

[40] Given the standard of review, this court is not bound by defence counsel’s erroneous calculation that the matter was under the 18-month presumptive ceiling. This is a reflection of the principle that the designation of periods of delay is a matter of law, attracting a standard of correctness.
. R. v. Tran

In R. v. Tran (Ont CA, 2023) the Court of Appeal held that delay stemming from a joint trial is a 'exceptional circumstances', excusing Charter s.11(b) trial delay:
[33] I would deny Mr. Tran’s appeal of the trial judge’s s. 11(b) ruling, as well. I accept that the net delay exceeded the 18-month presumptive ceiling for trials in the Ontario Court of Justice by nine days, but this was a joint trial. As I will explain, if the Crown establishes that a joint trial is being undertaken in the interests of justice, and delay has arisen because of that joint trial that the Crown could not reasonably have prevented or ameliorated, the Crown will have established an “exceptional circumstance” justifying a prima facie unreasonable delay, within the meaning of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In my view, the Crown established these things, thereby justifying the prima facie unreasonable delay. I would therefore dismiss this ground of appeal. I will begin by reviewing the material facts.


[39] To be sure, where a trial is being conducted jointly, delay caused by a co‑accused is not “defence delay” by the accused that counts against the accused. Therefore, the delay caused by Mr. Nguyen and Ms. Vu’s change of counsel continues to form part of the period of prima facie delay in Mr. Tran’s trial. As Gillese J.A., recognized for the majority in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 128, 136, an individualized approach must be taken in calculating delay. The trial judge fully appreciated that. The delay in Mr. Tran’s trial was therefore in prima facie breach of s. 11(b).

[40] However, the majority in Gopie also accepted that delay caused to the accused by the conduct of a joint trial can qualify as an “exceptional circumstance” that may permit delay in excess of the prima facie unreasonable delay period: Gopie, at paras. 142, 170. For delay caused by a joint trial to qualify as an exceptional circumstance it must first be in the interests of justice to conduct a joint trial: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, leave to appeal denied, [2017] S.C.C.A. No. 37322. To qualify as an exceptional circumstance in any context, the delay must arise from “circumstances [that] lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in the original): Jordan, at para. 69. Therefore, to rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay.
. R. v. Agpoon

In R. v. Agpoon (Ont CA, 2023) the Court of Appeal considered three Crown appeals from Charter s.11(b) undue trial delay cases, here where the delay occured during the COVID pandemic. In these quotes the court reviews principles from the leading R v Jordan (SCC, 2016) case, particularly on the treatment of COVID as a delay factor:
[3] A person charged with an offence has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated the remedy is a stay of the charges. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court prescribed how lower courts must assess delay in determining whether the right to be tried within a reasonable time has been violated and whether charges should be stayed.

[4] Jordan was not written with a phenomenon like the pandemic in mind, but its principles are adaptable. Jordan recognized that delay attributable to “exceptional circumstances” could be acceptable: at para. 68. The trial judge observed correctly that “[n]umerous rulings have considered the impact of the global pandemic in the context of s.11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance.”


(1) The Jordan Governing Principles

[19] The pandemic falls within a category of “discrete exceptional circumstances” laid out in Jordan, which the court defined, at para. 69: “[e]xceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original). This is the “only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling”: Jordan, at para. 81. The court acknowledged, at para. 72, that medical emergencies could qualify as a discrete exceptional circumstance. Although this comment was made in the context of individual medical emergencies, in our view it can be, and should be, generalized for the pandemic.

[20] Jordan imposed certain conditions on the Crown. For example, the burden is put on the Crown to show that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: at para. 70 (emphasis in original). But this was clearly impossible in the case of the pandemic. Further, the court referred to the Crown’s obligation to make efforts to mitigate the delay resulting from a discrete exceptional circumstance, noting, at para. 75, that “within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”. This principle applies to dealing with the backlog of cases in the emergence of the justice system from the pandemic.

[21] In our view, there is a systemic perspective within which the pandemic must be seen. The Jordan court said, at para. 103, “[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.” The surrounding circumstances here are systemic.

[22] We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, “trial judges should not parse each day or month… [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.

[23] We take seriously the observation by McLachlin J., as she then was, at p. 810 of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, which the Jordan court approved at para. 111: “…we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay”. Accordingly, the court said in Jordan that “[a] framework that is simpler to apply is itself of value.” This informs the framework we establish below.

[24] There are several ancillary principles. If the period of calculated delay is below the applicable presumptive ceiling – 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice – then the onus switches to the defence, which “may still demonstrate in clear cases that the delay is unreasonable”: Jordan, at para. 76. The court added, at para. 82:
[If the total delay is below the presumptive ceiling] then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. [Emphasis in original.]
[25] The Jordan court added, at para. 85: “it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.”

[26] Finally, there is the local perspective. The Jordan court noted the need for trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: at para. 89; see also paras. 87 and 101. This instruction applies with necessary modifications to the assessment of pandemic-related delay for Jordan purposes.


(3) The Application of Jordan Principles to Pandemic Delays Going Forward

[33] Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.

[34] This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.
. R. v. Donnelly

In R. v. Donnelly (Ont CA, 2023) the Court of Appeal set out the Jordan Charter 11(b) delay limits, here for retrials:
[24] The Supreme Court in R. v. J.F., 2022 SCC 17, has recently confirmed that while retrials must be prioritized in scheduling hearings, the same ceilings set in Jordan apply to retrial delay: at para. 4.

[25] In this case, the net delay was 11 months and 22 days, calculated as follows:
Total delay: 32 months (June 20, 2018 – February 19, 2021), less:

Covid delay (discrete event): 10 months 9 days (March 30, 2020 – December 8, 2021);

Defence waiver: 3 months 9 days (September 30, 2019 – January 8, 2020);

Defence delay: 1 month 5 days + 5 months 15 days (August 20, 2018 – September 25, 2018; April 15, 2019 - September 30, 2019) = 6 months 20 days

Total net delay = 11 months, 22 days.
[26] The net delay in the present case is well below the presumptive 30-month Jordan ceiling for cases tried in the Superior Court (Jordan, at para. 105) and is not unreasonable for the retrial of this case.


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Last modified: 17-07-24
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