|
Charter - Section 11(b) - Trial Delay (4). R. v. Singh
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here brought against a Charter s.11(b) ['trial delay'] large-scale drug offence stay.
The court considers the role of large-scale prosecutions (here for drug offences) in a Charter s.11(b) trial delay context:[1] Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. Courts must reconcile this fundamental right with two of the administration of justice’s most compelling imperatives: trying co-accused jointly and conducting large project prosecutions. The flexible framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, achieves this very goal. It recognizes that joint trials are ordinarily in the interests of justice and that complexity is sometimes unavoidable in project prosecutions, while holding the Crown to its duty to prevent and mitigate delay. Applying Jordan mechanically without meaningfully accounting for these interests risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions. Properly applied, Jordan prevents such outcomes while still safeguarding timely justice for the accused.
....
[4] I would allow the Crown’s appeals and set aside the stays because the joint trial and the project’s scale justified the additional time taken. In my respectful view, the application judge did not meaningfully account for these vital interests. His preferred alternative to a joint trial, severance, was not a panacea. Rather, it would have undermined the very interests joint trials safeguard – advancing the search for truth, strengthening public confidence in the courts, and combatting systemic delay. By focusing narrowly on the relative simplicity of the individual charges, he overlooked the structural complexity of the project as a whole. The complexity of the case caused everything to take longer – even for the respondents – and easily justifies the remaining modest delay.
....
C. ANALYSIS
[12] The Crown asks this court to set aside the stays of proceedings and remit the matters for trial, arguing that the application judge erred in his assessment of exceptional circumstances. It submits, first, that the application judge should have deducted the 107 days of joint-trial scheduling delay as a discrete exceptional circumstance. Second, it contends that the application judge failed to recognize that the complexity of the case justified the remaining delay in excess of the Jordan ceiling.
[13] I would allow the appeal. I agree with the Crown on both issues. Although findings regarding exceptional circumstances generally attract deference, a correctness standard applies here because the application judge misapplied the governing legal principles: R. v. Zahor, 2022 ONCA 449, at para. 79; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 28, leave to appeal refused, [2020] S.C.C.A. No. 53.
....
(2) Case Complexity Justifies the Remaining Delay
[27] The next issue is whether the complexity of this case justifies the remaining delay above the ceiling – nine days for Mr. Singh and 68 days for Mr. Narang. In my view, it does. I begin by outlining the governing legal principles before turning to their application to the record.
(a) Case Complexity Can Accommodate Project Prosecutions
[28] To establish case complexity, the Crown must demonstrate two elements. First, it must show that the nature of the evidence or issues required an inordinate amount of preparation or trial time sufficient to justify the remaining delay above the ceiling. This threshold demands particular complexity – something beyond the baseline contemplated by Jordan’s ceilings. Once particular complexity is established, the degree of complexity required to justify delay is proportionate to the quantum of net delay: shorter net delays require less complexity, while longer delays require more. Second, the Crown must show that it implemented a concrete, reasonable plan to minimize delay: Jordan, at paras. 77-79; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 63-64; R. v. Chan, 2019 ABCA 82, 82 Alta. L.R. (6th) 1, at para. 24; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at paras. 64-69, leave to appeal refused, [2018] S.C.C.A. No. 135.
[29] Complexity is frequently invoked where the state advances a project prosecution involving expansive investigations, voluminous disclosure, and numerous accused persons. As Karakatsanis J.A. (as she then was) observed, such prosecutions “play an important role in the administration of justice” and serve as a “necessary response to the increasing sophistication of organized criminal activity”: R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at paras. 30, 82, leave to appeal refused, [2011] S.C.C.A. No. 195.
[30] Jordan’s accommodation of case complexity reflects the systemic importance of project prosecutions. The doctrine aims to make room for time-intensive proceedings – including organized crime cases – that cannot reasonably be completed within the presumptive ceilings. Although the focus is on complexity rather than offence gravity, large multi-accused organized crime trials are among the cases most likely to satisfy this threshold: Jordan, at paras. 77-78, 81; Nugent, at paras. 31-33; R. v. Pearce, 2021 NSCA 37, 405 C.C.C. (3d) 75, at para. 145.
[31] Jordan also directs courts to assess complexity holistically over the full life cycle of the case. Complexity should not be viewed in isolation at the trial stage. Early-stage complexity – arising from the breadth of disclosure and number of accused in large projects – may justify longer delay even for “minor players” whose individual trials appear more streamlined by the end: R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 37-40.
[32] As a result, courts must approach case complexity in a manner that is both purposive and realistic in the context of project prosecutions. As de Sa J. has explained, the sheer scale of such cases means they inevitably take longer to organize and advance. It would be unfair, and unrealistic, to expect them to proceed at the pace of ordinary prosecutions: “Understanding R. v. Jordan: A New Era for s. 11(b)” (2018) 66 Crim. L.Q. 93, at p. 97. The fact that a Crown plan anticipates exceeding the ceiling does not itself render the plan unreasonable: Nugent, at para. 39.
[33] At the same time, complexity cannot operate as a shield for Crown complacency. Jordan requires the Crown to move project cases forward as expeditiously as reasonably possible. Complexity is never presumed, even in large projects; the Crown must prove it on the record and must take reasonable steps to reduce delay. Not every prosecution within a project will be complex, and some may be completed within the ceiling even if others require more time. Moreover, complexity cannot justify unreasonable Crown decisions, ineffective planning, or choices that themselves generate delay: Jordan, at para. 79; Picard, at paras. 64-69.
(b) This Project Justified the Additional Time
[34] The complexity of this prosecution justified the modest net delay that remained above the ceiling. Unfortunately, this was overlooked by the application judge, resulting in a legal error.
[35] The application judge erred by failing to situate the respondents’ charges within the broader procedural context. He treated the case as uncomplicated because the allegations against these two accused were relatively focused. But that is not determinative. They were prosecuted as part of a large, multi-accused mega-project involving extensive investigative steps and enormous disclosure. Those structural features can render a proceeding complex even where individual accused – as here – face comparatively straightforward charges. His further suggestion that the lack of novel legal issues precluded complexity misstated the test: complexity arises from the nature and volume of the evidence, the scale of the investigation, and the organizational demands of a project prosecution – not solely from difficult questions of law.
[36] Viewed holistically, this was a particularly complex case. Project Cheetah was a cross-border, multi-agency investigation involving wide-ranging surveillance, wiretap authorizations, and dozens of warrants. The resulting disclosure was vast: over 300 gigabytes, which took more than a year to assemble and produce. As the application judge elsewhere recognized, these features created unavoidable delays because disclosure management was “time consuming and difficult” for both sides. This is precisely the paradigm of mega-project complexity contemplated in Jordan.
[37] The caution in Jordan and Cody that voluminous disclosure alone may be insufficient does not alter the analysis. Here, the volume of disclosure was intertwined with the project’s cross-border scope, the number of investigative techniques used, and the dozens of defendants implicated. This project was substantially larger than those in Cody or Jordan – the 86,000-plus files far exceeded the roughly 20,000 pages in Cody, and the number of implicated individuals was more than triple that in Jordan. Moreover, there was no evidence that this prosecution or others within the project could reasonably have proceeded within the ceiling.
[38] This overarching complexity readily justifies the relatively modest above-the-ceiling delay. While the respondents’ charges were not technically difficult, in the circumstances of this case that factor may only limit the complexity justification for longer periods of delay; it does not negate the need to accommodate the additional time warranted by a mega-project of this scale at its early stages.
[39] The record also demonstrates that the Crown implemented a concrete, reasonable plan to minimize delay. The application judge accepted that the Crown took the standard steps required in complex projects: assigning appropriate resources, devoting substantial time to disclosure management, organizing the many accused into tailored prosecution groups, and using case management tools to streamline the pre-trial and trial processes: R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 82, leave to appeal refused, [2019] S.C.C.A. No. 370 (Kompon), and [2019] S.C.C.A. No. 423 (Bulhosen).
[40] The application judge nevertheless faulted the Crown because disclosure remained time-consuming. That reasoning was incorrect. The standard is one of reasonableness, not perfect efficiency, and the Crown is not required to complete a complex project case within the ceiling or eliminate all delay: Nugent, at paras. 39, 44-45. Having found no unreasonableness in the Crown’s plan, the very factors the judge identified – the time required to prepare extensive disclosure and the defence’s ensuing requests for further disclosure and review – reinforce rather than undermine the conclusion that this was a complex prosecution. . R. v. Singh [joint trial]
In R. v. Singh (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, here brought against a Charter s.11(b) ['trial delay'] large-scale drug offence stay.
The court considers the role of joint trials in a Charter s.11(b) context:[1] Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. Courts must reconcile this fundamental right with two of the administration of justice’s most compelling imperatives: trying co-accused jointly and conducting large project prosecutions. The flexible framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, achieves this very goal. It recognizes that joint trials are ordinarily in the interests of justice and that complexity is sometimes unavoidable in project prosecutions, while holding the Crown to its duty to prevent and mitigate delay. Applying Jordan mechanically without meaningfully accounting for these interests risks fragmenting cases into a multiplicity of proceedings, compounding systemic delay, and undermining the vital role of project prosecutions. Properly applied, Jordan prevents such outcomes while still safeguarding timely justice for the accused.
....
[4] I would allow the Crown’s appeals and set aside the stays because the joint trial and the project’s scale justified the additional time taken. In my respectful view, the application judge did not meaningfully account for these vital interests. His preferred alternative to a joint trial, severance, was not a panacea. Rather, it would have undermined the very interests joint trials safeguard – advancing the search for truth, strengthening public confidence in the courts, and combatting systemic delay. By focusing narrowly on the relative simplicity of the individual charges, he overlooked the structural complexity of the project as a whole. The complexity of the case caused everything to take longer – even for the respondents – and easily justifies the remaining modest delay.
....
C. ANALYSIS
[12] The Crown asks this court to set aside the stays of proceedings and remit the matters for trial, arguing that the application judge erred in his assessment of exceptional circumstances. It submits, first, that the application judge should have deducted the 107 days of joint-trial scheduling delay as a discrete exceptional circumstance. Second, it contends that the application judge failed to recognize that the complexity of the case justified the remaining delay in excess of the Jordan ceiling.
[13] I would allow the appeal. I agree with the Crown on both issues. Although findings regarding exceptional circumstances generally attract deference, a correctness standard applies here because the application judge misapplied the governing legal principles: R. v. Zahor, 2022 ONCA 449, at para. 79; Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 28, leave to appeal refused, [2020] S.C.C.A. No. 53.
....
(1) The Joint Trial Delay Should Be Deducted
[14] On the first issue, I accept the Crown’s position that the application judge should have treated the 107 days arising from joint-trial scheduling difficulties as a discrete exceptional circumstance and deducted them accordingly. I begin by reviewing the applicable legal principles before turning to their application on the record.
(a) Jordan Accommodates Joint Trials
[15] Courts have consistently emphasized that joint trials are strongly preferred over separate trials because they promote the proper administration of justice. Trying co-accused together – particularly in conspiracy cases or where the charges arise from a common series of events – advances the truth-seeking function in a way that separate trials may undermine. Joint trials also safeguard public confidence by reducing the burdens multiple proceedings impose on witnesses, jurors, and the community, and by avoiding the risk of inconsistent verdicts that may erode trust in the justice system. In addition, they achieve significant systemic efficiencies by preventing duplicative proceedings that would increase costs, strain judicial resources, and exacerbate delay. Accordingly, joint trials are the presumptive rule and severance the exception: R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 30-32; R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, at paras. 47-48; R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at paras. 16-18; R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485 (C.A.), at para. 59; R. v. Rai, 2019 BCCA 377, 381 C.C.C. (3d) 1, at para. 154.
[16] Jordan accommodates these compelling policy considerations. The Supreme Court has recognized that joint trials may require additional time and may, in appropriate cases, justify delay in excess of the ceiling. Delay resulting from a joint trial that serves the interests of justice should, therefore, be deducted as a discrete exceptional circumstance where it was unforeseen or reasonably unavoidable and where the Crown acted reasonably to mitigate it: Jordan, at para. 77; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6; R. v. Tran, 2023 ONCA 532, 429 C.C.C. (3d) 55, at para. 40.
[17] At the same time, Jordan reconciles this strong policy preference with an accused’s right to be tried within a reasonable time. The “interests of justice” analysis accommodates both considerations, and the Crown remains obliged to take reasonable steps to move the case forward and to mitigate joint-trial delay. In some circumstances, this may require severance – particularly where a joint trial unduly complicates the proceeding, causes substantial delay, or effectively holds an accused who wishes to proceed promptly hostage to the delays of co-accused: Jordan, at paras. 77, 79; R. v. Manasseri, 2016 ONCA 703, 429 C.C.C. (3d) 55, at paras. 323, 367-75, leave to appeal refused, [2016] S.C.C.A. No. 513; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 138-42, 171.
[18] However, the Crown is not required to forgo the systemic benefits of joint trials by severing proceedings as a matter of routine whenever a case approaches the ceiling. Severance is not invariably a solution, particularly where its benefit to the accused’s interest in a timely trial is marginal. Overuse of severance risks fragmenting complex project cases and other multi-accused proceedings into numerous separate trials, thereby compounding demands on already strained courts. This would undermine the truth-seeking function, erode public confidence, frustrate Jordan’s objective of systemic reform, and perpetuate the very systemic delay that Jordan sought to address: Rai, at paras. 153-54.
[19] To avoid this systemic spiral, courts must give meaningful effect to the strong policy favouring joint trials. That policy will frequently justify modest scheduling delays – an inherent feature of joint trials that Jordan expressly contemplates: Tran, at paras. 43-44; Gopie, at paras. 166, 169-70, 174. . R. v. MacLaughlin
In R. v. MacLaughlin (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "child luring, invitation to sexual touching, making child pornography, criminal harassment, and uttering a death threat".
Here the court considers the Charter s.11(b) trial delay issue of when such an application should be made:[31] After the trial judge delivered his oral reasons for judgment on May 29, 2023, the appellant’s trial counsel informed the court for the first time that he was considering bringing a s. 11(b) Charter application. Since no application was before the court, counsel agreed to have the case return for sentencing on July 20, 2023. Trial counsel then proceeded to file a s. 11(b) Charter application and an application to adjourn sentencing on June 22, 2023, but it was not brought to the trial judge’s attention. When the appellant’s case returned for sentencing on July 20, 2023, the appellant sought to adjourn the imposition of sentence so he could schedule a date for arguing the s. 11(b) Charter application.
[32] The trial judge declined to grant the adjournment and proceeded to sentence the appellant. In his oral reasons for declining the adjournment, he noted that the appellant’s current trial counsel had previously waived 6 months of delay, and that once a further 3 weeks attributable to the appellant’s former trial counsel was subtracted, the overall delay was “essentially at 18 months.”
[33] The appellant recognizes that a trial judge’s decision to grant or refuse an adjournment is discretionary and entitled to appellate deference: see e.g., R. v. Imola, 2019 ONCA 556, 439 C.R.R. (2d) 352. However, he argues that the trial judge erred in principle by mistakenly concluding that the delay that counted against the Jordan ceiling was 18 months: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[34] We agree that the trial judge seems to have miscalculated the applicable period of delay. The overall delay between the charge date and the end of evidence and argument was 26 months: see R. v. K.G.K., 2020 SCC 7, [2020] 1 SCR 364, at para. 33. Subtracting 6 months and 3 weeks from this figure leads to a total delay of slightly more than 19 months, not 18 months.
[35] However, we are not persuaded that the trial judge’s arithmetic error is sufficiently significant to justify our interfering with his discretionary decision to decline to grant the adjournment. While we agree that it would not have been appropriate for the trial judge to have summarily dismissed the application as “manifestly frivolous” (R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) 577, at para. 90), that is not what he did. Rather, his comments during submissions reveal that he was concerned that trial counsel had not raised the issue of delay months earlier, when it first became clear that the trial would not be completed as originally scheduled. He was also troubled by the further delay that would result if the case was adjourned to the fall. These were both factors he was entitled to take into account: see R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at paras. 34-35, 49 and 56. Unlike the situation in Imola, where the accused had a reasonable explanation for not bringing her pre-trial s. 11(b) Charter application sooner, the appellant’s post-conviction application can be fairly characterized as “a last minute gambit designed to delay the prosecution of the case”: Imola, at para. 18. The trial judge was entitled to refuse the adjournment on the basis that the appellant did not comply with his “duty to act proactively”: J.F., at para. 36. As Wagner C.J. noted in his majority reasons in J.F., at para. 35:It is generally recognized that an accused who raises the unreasonableness of delay after trial, and particularly after conviction, is not acting in a timely manner. [Citations omitted.] . R. v. Dos Santos
In R. v. Dos Santos (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from convictions for "sexual assault and extortion".
Here the court considered mistrials and their role in assessing Charter s.11(b) trial delay (ie. do they 'reset the clock?'):[1] This appeal calls for guidance concerning how mistrials affect an accused’s right to be tried within a reasonable time. I conclude that, unlike retrials following appeals, mistrials do not reset the clock. Rather, they should be assessed within the flexible and contextual framework provided by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Thus, unless the mistrial constitutes defence delay, the Crown must typically show that it is a discrete exceptional circumstance to justify above-the-ceiling delay resulting from it. This approach guards against complacency by incentivizing both the Crown and defence to prevent and reduce delay while also accounting for the wide range of circumstances that may cause a mistrial.
[2] In this case, the mistrial was a discrete exceptional circumstance. It was an unforeseeable result of a shared mistake of law which caused delay that the Crown could not reasonably remedy. The appellant was not only tried within a reasonable time, but also received a fair retrial with focused instructions that corrected the Crown’s prejudicial question.
[3] Accordingly, and for the reasons that follow, I would dismiss the appeal.
....
[20] I begin with the s. 11(b) ground of appeal. The appellant argues that the application judge erred in treating the mistrial as resetting the Jordan clock. The respondent Crown also concedes that this was an error. I agree. Unlike retrials following appeals, mistrials do not reset the clock. Instead, the Jordan framework continues to apply. However, this error does not affect the outcome because the application judge found that the mistrial constituted a discrete exceptional circumstance. I will first set out the applicable legal principles before turning to the facts.
(1) Legal Framework for Mistrial Delay
[21] The application judge addressed two legal questions: (1) whether a mistrial resets the Jordan clock, and (2) if not, how the Jordan framework applies. She analogized mistrials to appellate-ordered retrials and concluded that mistrials always amount to discrete exceptional circumstances.
[22] With respect, both conclusions are incorrect. A mistrial does not reset the Jordan clock. Instead, the delay that follows must be assessed under Jordan. A mistrial is not automatically an exceptional circumstance either. Instead, the Crown must show that it was reasonably unforeseeable or unavoidable and that the resulting delay could not reasonably be mitigated as Jordan requires. This is a fact-specific inquiry.
(a) Mistrials Do Not Reset the Jordan Clock
[23] In J.F., the Supreme Court held that retrials ordered on appeal reset the Jordan clock because the original trial has concluded, and the accused is no longer a person “charged with an offence” for the purposes of s. 11(b). The accused loses that status once the appeal is filed and only regains it, along with a reset Jordan clock, once the appellate court orders a retrial: at paras. 23-24, 55, 60.
[24] Both parties correctly acknowledge that J.F. does not govern this case. That decision addressed retrials ordered on appeal – not mistrials. Moreover, in R. v. Way, 2022 ABCA 1, 408 C.C.C. (3d) 506, leave to appeal refused, [2022] S.C.C.A. No. 44, the Court of Appeal of Alberta expressly contemplated and rejected the analogy between mistrials and appellate retrials.
[25] I agree with Way that mistrials are fundamentally different. Unlike an appeal, a mistrial does not end trial proceedings or remove the accused’s charged status. Rather, it is a disruption that triggers the need for a new trial within the same process. Thus, the matter remains governed by Jordan ceilings, not by a reset clock: Way, at paras. 19-22, 30.
[26] As well, the one-size-fits-all approach of resetting the clock is a poor fit for the diverse circumstances which trigger mistrials. “[M]istrials come in many flavours” and cover a wide “spectrum of situations”: R. v. Clifford, 2022 ABQB 509, 55 Alta. L.R. (7th) 135, at paras. 25-26. They are often unanticipated results of developments that are neither party’s fault — arising from issues like inadmissible evidence inadvertently provided to a jury, the discharge of a jury member, inadmissible and prejudicial communications between a witness and a juror, the need for counsel to withdraw, or bias discovered after a verdict: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 73-77; R. v. Melvin, 2017 NSSC 149, at paras. 2, 87. But they also sometimes stem from the conduct of the Crown and/or defence — for example, through improper jury addresses, disclosure breaches, or prejudicial or misleading trial strategy: see e.g., R. v. J.H.T., 2016 BCSC 2382, at paras. 155-74; R. v. Mack, 2007 ABQB 182, 458 A.R. 52, at paras. 77-80; Clifford, at paras. 26-29. This calls for more flexible approaches rather than a blanket response.
[27] Finally, resetting the clock after a mistrial would make it nearly impossible for an accused to establish unreasonable delay, since the accused would have to wait for the ceiling to be exceeded a second time: Way, at para. 25. That concern is present here: the application judge found the delay was “well within” the ceiling even though it was approximately half a year over Jordan’s default timeline. This approach risks fostering a culture of complacency and weakening the Crown’s longstanding obligation to prevent further delay following a mistrial: Way, at paras. 24, 27-30.
[28] In contrast, applying Jordan to mistrials is appropriate for two reasons.
[29] First, it allows courts to evaluate delay flexibly and contextually, based on the parties’ conduct and the circumstances of the case. While the Crown may still meet the burden of proving an exceptional circumstance, Jordan permits a nuanced, case-specific assessment that remains available to the accused.
[30] Second, it incentivizes both parties to act appropriately and to prevent and mitigate delay. It reinforces the Crown’s obligation to actively manage delay following a mistrial and avoid complacency: Jordan, at paras. 40, 75. Although some post-mistrial delay is inevitable, the Crown must take all reasonable steps to minimize it – for example, by promptly rescheduling the retrial: R. v. Brace, 2010 ONCA 689, 104 O.R. (3d) 32, at para. 14. This ensures that the passage of time does not prejudice trial fairness: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at p. 1220. At the same time, applying Jordan encourages the defence to act legitimately and move promptly to schedule a retrial, thereby avoiding deductions for defence delay: Way, at para. 41.
(b) Applying the Jordan Framework to Mistrials
[31] Because Jordan governs, I turn to how it applies to mistrial delay.
[32] The Jordan framework involves four steps:. Calculate the total time from the laying of the charge to the anticipated or actual end of trial;
. Subtract any defence delay to determine net delay;
. Assess whether the net delay exceeds the presumptive ceiling; and,
. If so, determine whether the Crown has rebutted the presumption of unreasonableness by proving exceptional circumstances.
See Zahor, at paras. 60–75. [33] Defence delay must be deducted. Accordingly, mistrials resulting solely or directly from illegitimate defence actions, post-mistrial delay arising solely or directly from defence unavailability, or mistrial delay that is waived by the defence may be deducted: Jordan, at paras. 60-66; Way, at paras. 33, 41; Mallozzi, at para. 42.
[34] If the net delay exceeds the ceiling, the Crown must prove exceptional circumstances. For mistrial delay, this requires showing that (1) the mistrial was reasonably unforeseeable or unavoidable, and (2) the resulting delay could not reasonably have been mitigated: Way, at para. 35, citing Jordan, at para. 69.
[35] While mistrials may often fall within the category of discrete exceptional circumstances – unforeseeable or unavoidable developments that derail a trial – this is not automatic: Way, at para. 36, quoting Jordan, at para. 73. Contrary to the application judge’s conclusion, mistrials are not presumed to be discrete exceptional circumstances. Such a presumption would encourage complacency. Rather, as the Court of Appeal of Alberta correctly held in Way, the Crown must always discharge its burden of proving exceptional circumstances under Jordan: Way, at paras. 33, 39. Mallozzi, which the application judge relied on, does not support a different approach. In that case, the Crown satisfied its burden because the jury selection issues were unforeseeable and addressed promptly: Mallozzi, at paras. 41-43.
[36] Thus, a contextual, fact-driven assessment is required. A mistrial may constitute an exceptional circumstance where it arises despite reasonable diligence by the Crown: Mallozzi, at para. 41. However, the Crown is unlikely to benefit from this exception if the mistrial was its fault. Likewise, the defence risks deductions for defence delay where its illegitimate conduct solely or directly produced the mistrial: Way, at para. 33, citing R. v. J.T., 2021 ONSC 365, at paras. 29-30.
|
