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Charter - Section 11(b) - Trial Delay (3). R. v. Anderson ['particularly complex']
In R. v. Anderson (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from sex assault convictions.
Here the court considers 'particularly complex' cases in the Charter s.11(b) trial delay regime:[30] The “exceptional circumstance” for “cases that are particularly complex” was described by the majority in R. v. Jordan, at paras. 77 and 79 in the following terms:Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.
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It bears reiterating that such determinations fall well within the trial judge’s expertise. And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. c. Auclair, 2014 SCC 6 (CanLII), [2014] 1 S.C.R. 83 (S.C.C.), at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. [Italics in the original]. [31] In R. v. Cody, at para. 64, the Court clarified that it is “the case as a whole” that must be “particularly complex”:Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable ( , at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79). [32] This court has emphasized one of the above points made in Jordan, namely, that determining the overall complexity of a case is “well within the trial judge’s expertise.” As a result, the trial judge’s findings in relation to this issue are “entitled to deference.” See: R. v. Blake, 2023 ONCA 847, at para. 2. The trial judge relied on the following aspects of the case that made it “particularly complex”:. there were “ten different complainants;”
. there were “multiple sets of criminal charges” covering a six-year period. They were laid on four separate dates, as the ongoing investigation proceeded;
. counsel “decided against severance” and agreed to a single trial. Counsel then worked “collaboratively to ensure this plethora of cases was kept on track”;
. the witnesses were “vulnerable” (and would presumably require careful preparation);
. there were two separate Charter applications, one relating to s. 8 and one relating to s. 11(b). Both applications took some time to prepare and complete;
. the Crown brought a similar fact application at the end of the case, seeking cross-count admissibility on three separate bases;
. the defence brought directed verdict applications at the end of the Crown case in relation to three of the 10 complainants;
. there was argument relating to the availability of lesser included offences that led to a written decision by the trial judge;
. the trial judge, the Crowns, and defence counsel were all brought in from outside Ottawa, as a result of the conflicts issue. This made the case “administratively complex” because of the existing schedules (and vacations) of these out of town parties (who all gave up vacation days in order to accommodate the trial). In addition, “the realities of conducting a trial in a different city” complicated “disclosure communications and litigation support.” . R. v. Anderson
In R. v. Anderson (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from sex assault convictions.
Here the court considers Charter s.11(b) trial delay:[25] In two forceful decisions that are relevant to this issue, the Court of Appeal has emphasized the importance of setting a schedule for motions, complying with that schedule, and bringing “difficulties to the attention of the court” in order to allow for “proactive case management.” In both cases, motions were summarily dismissed when they were not brought in accordance with the schedule that had been set. The two decisions were authored by Doherty J.A. In the first case, R. v. Oliver and Morrison (2005), 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 (Ont. C.A.), at para. 29, he stated:Trial judges are charged with the responsibility of ensuring the orderly administration of criminal justice. This obligation includes setting schedules for the conduct of criminal trials. Counsel are expected to comply with the schedules set by the court. This is no less true in criminal matters than in civil matters. When, as some times happens, difficulties develop in meeting schedules, counsel are expected to bring those difficulties to the attention of the court and opposing counsel as soon as possible so that the court may amend the schedule, if deemed appropriate. [Emphasis added]. Fifteen years later, in R. v. Kazman et al, 2020 ONCA 22, at para. 16, Doherty J.A. again stated:The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31 (CanLII), [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139. [Emphasis added]. . R. v. Vrbanic
In R. v. Vrbanic (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here on Charter s.11(b) trial delay issues:(2) The particularly complex cases exception
[24] I will not summarize the entire Jordan framework, which is well-established. I focus on the exception to the presumptive ceilings for particularly complex cases. Jordan recognizes that a case’s complexity may constitute an exceptional circumstance and justify delay over the presumptive ceiling: Jordan, at paras. 69-71, 77-81; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64.
[25] Because particularly complex cases are a category of exceptional circumstances, it is helpful to start with the majority’s description of exceptional circumstances from Jordan, at para. 69:Exceptional 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.] [26] The majority explained that the two requirements outlined above mean that the exceptional circumstance must not only be reasonably unforeseen or unavoidable, but also that the Crown must show that it took reasonably available steps to avoid or minimize delay before the delay exceeded the ceiling. Examples of reasonable available steps include seeking prompt resort to case management, seeking to work with the defence to streamline evidence or issues for trial or pre‑trial applications, or other appropriate procedural means: Jordan at para. 70.
[27] The Crown bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances: Jordan, at paras. 68-81.
[28] The Jordan majority explained how complexity is to be assessed when the Crown seeks to rely on a case’s complexity as an exceptional circumstance, at paras. 77-81. The seriousness of the offences charged is not itself an indicator of complexity; although as a practical matter, more complex cases will often involve serious charges. Particularly complex cases are those that “because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified” (emphasis in original). Hallmarks of particular complexity arising from the evidence include voluminous disclosure, a large number of witnesses, significant expert evidence, and charges covering a long period of time. Hallmarks of particular complexity arising from the nature of the issues include a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, where it is reasonable to do so, may also impact the complexity assessment. These are not an exhaustive list. As noted above, the assessment of complexity is a matter within a trial judge’s expertise.
[29] In Cody, the Supreme Court provided further direction on the nature of the particular complexity analysis. The analysis involves a qualitative, not a quantitative assessment. Complexity will be an exceptional circumstance “only where the case as a whole is particularly complex”: at para. 64. Consistent with this approach, in Cody, where the case involved voluminous disclosure but the balance of the proceedings were relatively straightforward, the court concluded that the case as a whole was not sufficiently complex to constitute an exceptional circumstance. The court reiterated that voluminous disclosure is a hallmark of particularly complex cases, but “is not automatically demonstrative of complexity”: at para. 65.
[30] As with the general description of the Crown’s burden to establish exceptional circumstances, where a claim of exceptional circumstances is based on a case’s complexity, the Crown must not only show a sufficient level of complexity, but also show that it took reasonable steps to minimize delay (at para. 79):And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize delay occasioned by such complexity. Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control (citation omitted). [31] The steps taken by the Crown in a plan to minimize delay for a particularly complex case need not meet the standard of perfection. The Crown is not required to show that the steps it took to minimize delay were successful, but only that it made a concrete plan and took reasonably available steps to attempt to avoid the delay: Jordan, at para. 70; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at paras. 44-45.
[32] One final point, for analytical clarity. The issue of whether a case’s complexity is sufficient to constitute exceptional circumstances justifying what would otherwise be unconstitutional delay is to be considered if the delay is over the presumptive ceiling after any applicable quantitative deductions have been made (for example, for defence delay or waiver or delay attributable to discrete exceptional events): Cody, at para. 64. . R. v. Omiwole
In R. v. Omiwole (Ont CA, 2025) the Ontario Court of Appeal considered 'administrative error' as an 'exceptional circumstance', and thus it's non-counting against either side for Charter s.11(b) purposes:[10] As for the second issue, the appeal judge’s mistake of fact in relation to the Administrative Error does not amount to a question of law alone nor is its resolution a matter essential to the public interest. The appeal judge’s finding that the Administrative Error was an exceptional circumstance did not rest solely on her factual misapprehension. She found that the issuance of the notice to the wrong address was an administrative error for which the Crown should not be held responsible. As the appeal judge noted, this error is one of those which the Supreme Court of Canada described in R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 100, as “simply one of those unforeseeable and unavoidable hiccups that sometimes occur in the life of a trial”. The Crown plays no role in matters such as the Administrative Error and had no control or ability to remedy that error: K.J.M., at paras. 98-99. Further, I do not view the Administrative Error as a failure of natural justice. There is no suggestion in the record that the Moving Party was denied procedural fairness. The appeal judge properly deducted the delay occasioned by the Administrative Error as an exceptional circumstance. . R. v. Jones
In R. v. Jones (Ont CA, 2025) the Ontario Court of Appeal allowed a Charter s.11(b) trial delay Crown appeal.
Here the court considered a holistic approach to the minutiae of trial delay:[31] In Jordan, the court observed that when calculating delay, the defence will have “directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence”. Jordan, at para. 64. See also R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34. Recently, the Supreme Court modified this view in Hanan, and indicated that a more contextual approach is required. The court rejected a “bright-line rule” that all of the time until the next available date following defence counsel's rejection of a date offered by the court must be characterized as defence delay. Instead, all relevant circumstances should be considered to determine how delay should be apportioned among the participants rather than attributing the entire period to the defence.
[32] In my view the application judge erred in failing to characterize any portion of this delay as defence delay. While Hanan rejects a bright-line rule apportioning the defence with all of the delay after it rejects an available date, it did not adopt an inverse bright-line rule apportioning the defence with none of the delay. Instead, it directs courts to consider “all relevant circumstances” to apportion the delay among the parties: para. 9. . R. v. R.B.-C.
In R. v. R.B.-C. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on a Charter 11(b) ['trial delay'] issue, where the specific issue was delay between conviction and sentencing:(2) General principles that apply to post-conviction delay
[49] In R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, this court held that the presumptive ceiling for trial delay set by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 does not include consideration of the time between conviction and sentencing. However, the court held that there is a separate presumptive ceiling of five months between the date of conviction and the date of sentencing. The court emphasized that “five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b)” (emphasis added): at para. 87.
[50] The court further explained, at paras. 74 and 90-91, that, even in complex cases, the trial judge has a responsibility to raise the issue with counsel and set dates that take the presumptive ceiling into account.
[51] On a post-conviction s. 11(b) application, the court is to follow the same framework as established in Jordan, at para. 105, for calculating whether the delay was unreasonable. First, the court is to calculate the total time between the date of conviction and the date of sentencing.[2] Second, the court is to subtract delay solely attributable to the defence, which results in the net delay: Jordan, at paras. 60-61; Charley, at para. 89. A net delay that exceeds the five-month ceiling is presumptively unreasonable: Charley, at para. 87. The Crown can rebut this presumption by showing that the delay was due to exceptional circumstances, which can arise from discrete events or from the particular complexity of the proceeding, but not from chronic institutional delay: Jordan, at paras. 68-76; Charley, at paras. 98-104.
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[60] The trial judge’s findings of fact on the s. 11(b) application are owed deference and are to be reviewed on a standard of palpable and overriding error. However, her characterization of the periods of delay and her ultimate decision as to whether there has been unreasonable delay are subject to review on 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.
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[73] With all due respect to the trial judge, what occurred during submissions on February 25, 2022 cannot be described as an exceptional circumstance caused by the COVID-19 pandemic. It was not the pandemic that caused the delay, such as when courts shut down altogether in March 2020 and jury trials were not available until September 2021: see R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, leave to appeal refused, [2023] S.C.C.A. No. 477 (Flemmings), and [2023] S.C.C.A. No. 478 (Agpoon). There are many cases in which delay caused by the pandemic was justifiably an exceptional circumstance: see e.g., Donnelly, at paras. 23-27; R. v. Long, 2023 ONCA 679, 431 C.C.C. (3d) 288; and R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, leave to appeal refused, [2024] S.C.C.A. No. 41. But not in this case.
[74] What occurred here were small delays on a hearing day due to technical challenges and other missteps. Following the trial judge’s reasoning, all delays caused by minor technical issues since the pandemic could be categorized as an exceptional circumstance. By February 2022, the courts had generally adapted to the pandemic by introducing options for virtual hearings. Technology is not perfect and participants’ use of technology is not perfect, but minor technical malfunctions and attendant delays are not what the Supreme Court meant by stating that delay caused by exceptional circumstances could justify an extension of time. On the contrary, this is precisely the type of institutional drift or delay that participants in the justice system should guard against: Jordan, at paras. 81, 112-17; see also R. v. Kirkopoulos, 2024 ONCA 596, at paras. 22, 45-53.
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(7) Appropriate remedy
[79] The appellant argues that the appropriate remedy for the breach of his right to be sentenced within a reasonable time under s. 11(b) of the Charter is a conditional discharge. I disagree. I would instead reduce the conditional sentence by four months.
[80] In Charley, the court found that the post-conviction delay did not amount to a s. 11(b) Charter breach. The court therefore did not have to address the appropriate remedy. The court nevertheless stated, at para. 114, that it was “arguable that the remedy for post-verdict delay should not affect the conviction”. The court left the issue of the appropriate remedy to be determined in a future case.
[81] In R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, this court found that the post-conviction delay was unreasonable. In that case, the court held that the appropriate remedy should target the sentence given the violent nature of the offence: at para. 114. The court further held that, to target the sentence, the remedy must “be based on and align with sentencing principles”: at para. 116. Having regard to the sentencing principles, the court reasoned that delay in sentencing that rises to the level of a s. 11(b) Charter breach should lead to enhanced mitigation: at para. 119. On that basis, the court reduced a 30-month custodial sentence by 5 months.
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