Presumptive ceiling for trial delay ‘not an aspirational target’: Alberta Court of Appeal

By Ian Burns

Law360 Canada (March 30, 2022, 9:57 AM EDT) -- Alberta’s top court has restored the stay of proceedings for a man charged with assault, saying a judge who reviewed the conviction was incorrect to conclude that there were no steps Crown counsel could have taken to mitigate the delay resulting from the COVID-19 pandemic.

Said Youssef Ghraizi was charged with two counts of assault and one count of uttering threats with a trial initially set for November 2019, which was 11 months after he had been charged. But that trial did not start as originally scheduled due to the Crown attorney’s illness and other delays, with it eventually being put over to March 2020 when it was adjourned due to the COVID-19 pandemic. A trial was eventually set for September 2020, which was 21 months from the date he was charged.

As a result, the trial judge issued a stay in the case as it exceeded the 18-month ceiling set by R. v. Jordan 2016 SCC 27. But a summary conviction appeal judge overturned that ruling, saying the trial court judge erred in her conclusion that the entire period from March to September 2020 should be included in the calculation of delay. The summary conviction appeal judge held that the pandemic meant there were no steps that Crown counsel could have taken which could have led to a trial date before courts reopened in July.

But the Alberta Court of Appeal ruled the summary conviction appeal judge applied an overly restrictive assessment of whether the Crown met its obligations to take reasonable steps to address delay (R. v. Ghraizi 2022 ABCA 96).

“Reasonable steps are not simply measured in the context of securing a new trial date. Nor is it necessary that the Crown establish the steps taken would have been successful in reducing or mitigating delay,” the court wrote in its unanimous decision, issued March 17. “As but one example offered, Crown counsel took no steps to try to shorten the trial by reviewing whether the evidence of two police officers could be dispensed with. Crown counsel’s argument on this appeal is infused with a similar sense of defeatism; that nothing could be done between March 17 and July 2, 2020, when the provincial court resumed partial bookings.”

Unforeseen circumstances like counsel illness or witness unavailability are “simply part of the vagaries of running a trial,” the court wrote, but there is an obligation on all parties to work toward resolving them.

“As succinctly stated in Jordan: the presumptive ceiling is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable,” the court wrote. “The public should expect that most cases can and should be resolved before reaching the ceiling.”

As a result, the three-judge panel of Justices Frederica Schutz, Dawn Pentelechuk and L. Bernette Ho restored the stay of proceedings. Ghraizi’s counsel, Stacey Purser of Purser Law, said the court’s ruling signals a message that COVID-19 is not an excuse for delay.

“The focus should be whether there are reasonable efforts to respond, and the message is that COVID-19 delay still has to be mitigated even if it was completely unavoidable,” she said. “There are still steps which have to be taken.”

Lisa Silver, University of Calgary

Lisa Silver, University of Calgary

University of Calgary law professor Lisa Silver said what she found interesting about the case was not so much the COVID-19 issue but the reminder that the Crown has to deal with the problem of delay before it exceeds the Jordan ceiling.

“It was not only the fact of COVID-19 that made this matter go over, but other everyday things like illness. So, the onus shifted to the Crown to establish that an exceptional circumstance would cause part of the delay to be deducted, and part of that is this obligation to make reasonable efforts to conclude the trial under the ceiling,” she said. “And the Crown did nothing.”

The case “really goes to the Crown’s obligation to review a file and look at what they can do” to mitigate delay, said Silver.

“It sends the message that the Crown has got this obligation to not just stand in court and litigate, but also sit in their office and review,” she said. “Under Jordan, everybody is required to make their best reasonable efforts to address delay.”

A spokesperson for the Alberta Crown Prosecution Service (ACPS) said in an e-mail that the Crown does not intend to seek leave to appeal from the Supreme Court of Canada “as the result in this case turns on the specific facts of the case and the finding of the trial judge.”

“As such, the case does not appear to involve a question of law of broader national importance that would merit consideration by the Supreme Court of Canada,” the spokesperson said.

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