|
Charter - Section 11(b) - Trial Delay (5). R. v. Qureshi
In R. v. Qureshi (Ont CA, 2026) the Ontario Court of Appeal allowed a Charter s.11(b) ['trial delay'] criminal appeal, this brought against convictions for "multiple firearm offences involving the possession of a handgun and ammunition".
Here the court focusses on defence delay:[3] This appeal turns on whether the trial judge erred in his characterization of the 144-day period between March 13 and August 4, 2023 as defence delay alone. The appellant argues that the trial judge ignored other relevant circumstances in assessing whether the defence was the sole cause of the delay, thus failing to follow the approach set out in R. v. Hanan, 2023 SCC 12, 170 O.R. (3d) 240. The appellant submits that the net delay in this case remains above the 18-month ceiling.
....
a. Foundational Principles and Standard of Review
[27] The framework for assessing unreasonable delay post-Jordan is well established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [28] The trial judge’s findings of fact are owed deference, but his legal analysis, including his determination that the 144-day period in question was entirely defence delay, is assessed on a correctness standard: 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, R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5, at para 2.
....
[31] As I will explain, the trial judge erred in determining that all 144 days from March 13 to August 4, 2023 constituted defence delay. Although, as noted above, he referred to Hanan in his second s. 11(b) decision, he erred in applying Hanan [SS: R. v. Hanan (SCC, 2023)].
[32] First, the trial judge erred by stating that any Crown delay in offering new dates was irrelevant to the “particular issue” (i.e., assessing whether the 144 days should be deducted as defence delay). The Supreme Court of Canada declined to endorse a bright-line rule in assessing the unavailability of defence counsel and any ensuing delays in Hanan, at para. 9:Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136). [Emphasis added.] . R. v. J.H.
In R. v. J.H. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "10 counts of domestic violence-related offences", and grounded in Charter s.11(b) ['trial delay']..
This case illustrates some of the many aspects of delay that are relevant to s.11(b) assessments:[5] On appellate review of a s. 11(b) decision, deference is owed to a trial judge’s underlying findings of fact. Characterization of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5; 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.
[6] In the absence of an error in the legal principles applied, a trial judge’s assessment of the complexity of a case, and whether the Crown used reasonably available tools to minimize delay, are “well within the trial judge’s expertise” and entitled to deference: Jordan, at paras. 77-79; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 35; R. v. Wookey, 2021 ONCA 68, 400 C.C.C. (3d) 290, at para. 88; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 103, leave to appeal refused, [2019] S.C.C.A. No. 423.
[7] The assessment of whether a case is particularly complex such that it can justify delay based on exceptional circumstances involves a qualitative, not a quantitative assessment: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64. The complexity assessment must focus on whether, because of the nature of the evidence or the nature of the issues, the case requires an inordinate amount of trial time or preparation time: Jordan, at paras. 77-79.
[8] The appellant’s argument that there were not sufficient hallmarks of complexity seeks to turn the qualitative analysis of whether a case is particularly complex into a counting exercise of the number of hallmarks of complexity. This is contrary to the approach in Jordan and Cody, which requires that complexity be assessed by looking at the case as a whole and emphasizes the expertise of trial judges to engage in this wholistic assessment of the complexity of a case.
[9] The trial judge assessed complexity using the correct framework from Jordan. He considered all of the circumstances and looked at the case as a whole, rather than parsing individual steps or factors, consistent with the approach in Cody, at para. 64. He gave particular weight to the following factors: the large number of charges; the nature of the charges; the period of time over which the charges took place; the significant number of pre-trial and mid-trial applications on procedural and evidentiary issues; the complexity of scheduling some of the pre-trial applications because it was necessary to schedule them separately from the trial dates so rulings could be provided and the parties could take next steps; and the length of the trial – 17 days of trial time – which he found was “exceptional” for the Ontario Court of Justice in Ottawa. The trial judge further found, following the analysis required by Jordan at paras. 69-70, that the Crown, with the cooperation of the defence, had taken reasonably available steps to minimize the delay.
[10] Given the deference accorded to trial judges in the assessment of complexity, we see no basis to interfere with the trial judge’s weighing of all the circumstances, nor with his conclusion that the case was sufficiently complex to justify the delay on the basis of exceptional circumstances.
[11] We also reject the appellant’s submission that the trial judge relied on the seriousness of the offence as a marker of complexity, which would be contrary to the direction in Jordan, at para. 81.
[12] At no point did the trial judge refer to the seriousness or gravity of the offences as a factor in his complexity analysis; rather, he referred to “the nature of the charges”. In our view, when one reads the passage of the reasons in which the trial judge refers to “the nature of the charges” in context, it is clear that he was not referring to the level of seriousness or gravity of the offences charged. Rather, he was referring to the procedural complexities that frequently accompany sexual assault charges. Although the appellant was ultimately acquitted of the two counts of sexual assault among the 24 counts against him, those counts contributed to the complexity of the prosecution. We see no basis to interfere with the trial judge’s finding that in the circumstances of this case, the nature of the charges contributed to the procedural complexity of the case.
[13] As a result of our conclusion that the trial judge did not err in his complexity analysis, it is not necessary to address the Crown’s argument, seeking to uphold the result on other grounds, that an additional time period ought to have been deducted as delay solely caused by the defence.
|
