More evidence courts are ‘not well-oiled machines’

Law360 Canada (December 18, 2024, 1:44 PM EST) --

John L. Hill

Trial delay is a significant concern, as the public is increasingly puzzled that serious charges are dismissed because it took too long to bring the matter to trial. This frustration was echoed in British Columbia Premier David Eby's statement, quoted in the July 24 issue of the Vancouver Island Free Daily as saying, "Not one case should be dismissed this way."

In 2023, more than 170 cases in Ontario were dropped because of unreasonable trial delays, and about 19 cases in British Columbia were also dropped.

The premier’s statement occurred while the issue of trial delay was being considered by the Ontario Court of Appeal in R. v. J.S., 2024 ONCA 794. That case was heard on March 21, and written reasons were delivered on Oct. 30.

The background for this appeal was that J.S. had been charged with sexual assault on Aug. 28, 2018. The Crown proceeded by summary conviction. A six-day trial starting on Nov. 4, 2019, was not completed as scheduled and ended on Nov. 24, 2020. The delay amounted to 27.5 months. After the evidence was in, the accused brought a motion that his right to a speedy trial had been denied. This motion was dismissed. J.S. appealed to the Superior Court to challenge this denial. Justice Jonathan Dawe allowed the appeal (R. v. J.S., [2023] O.J. No. 1349). The sexual assault conviction was quashed. The Crown appealed that decision.

Section 11(b) of the Charter provides: “Any person charged with an offence has the right to be tried within a reasonable time. Determining what constitutes “reasonable” has been the subject of litigation starting with R. v. Askov, [1990} 2 S.C.R. 1199. Following that decision, the public was shocked when serious charges were dismissed because a hard time limit for trial had been breached. Although the subsequent history of the court rulings was not set out in the J.S. case, the Ontario Court of Appeal has referenced its dealings with time delays in R. v. Bulhosen, 2019 ONCA 600.

That case notes that R. v. Jordan, [2016] S.C.R 631 established a new framework for the s. 11(b) analysis. It was designed to be simple in its application and predictable in its effect. It replaced the framework articulated in R. v. Morin, [1992] 1 S.C.R. 771, which the majority in the Supreme Court described as “too unpredictable, too confusing, and too complex.” The Jordan framework is now well-understood: see R. v. Coulter, 2016 ONCA 704; R. v. Manasseri, 2016 ONCA 703; R. v. Picard, 2017 ONCA 692 and R. v. Jurkus, 2018 ONCA 489. The Jordan decision sets out a ceiling which, if exceeded, is “presumptively unreasonable:” 18 months for cases in provincial courts and 30 months for those tried in superior courts.

Delays waived by the defence or delays attributable to the defence are deducted from the “total delay” (the time between the date of the charges and the actual or anticipated end of the trial) to determine the “net delay.” If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable, and the Crown bears the onus of establishing that the delay was reasonable. It may do so by proving that the delay was caused by “exceptional circumstances.”

Determining exceptional circumstances has two components: (1) they are reasonably unforeseen or unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from these circumstances once they arise. Exceptional circumstances generally fall into two categories: “discrete events,” which are not at issue in this case, or cases that are particularly complex due to the evidence or issues.

In J.S., the Court of Appeal agreed that the Crown had formulated a reasonable litigation plan and was executing it. However, courts are not “well-oiled machines,” and things can go awry. When the trial did not end on the expected date, the defence counsel could not agree on dates to continue the trial even though the Crown had vacated the vacation time owed to her. In J.S., a witness denied statements supposedly recorded, necessitating the Crown to extend the trial to prove a point in issue. The delay could be seen as one caused by discrete exceptional circumstances (R. v. Carbone, 2020 ONCA 394).

There is little to indicate why the defence counsel could not accept one of the earlier continuation dates. Therefore, delay must be charged against the defence. Busy defence counsel are not expected to “open up their calendars,” but if a delay results, the reasons should be recorded lest the delay be attributed to the defence.

Fresh evidence explaining the delay was admitted, the stay of proceedings set aside, and J.S.'s conviction restored. The public distaste for court-imposed limitations remains.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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