Defendants who are prosecuted under the Provincial Offences Act have the right to be tried within a reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms. [1] An accused whose case has taken a “long time” to prosecute can bring an application to stay his case for delay. The test for establishing delay used to be the Morin framework.[2] However, in July 2016, the Supreme Court of Canada (“SCC”) released R v Jordan, which reversed Morin and established a new framework for applying delay under section 11(b) of the Charter.[3]
Under this new framework, regulatory prosecutions in Provincial Court must be disposed of within 18 months of the charges being laid. This approach applies to both regulatory and penal offences [4]. It also applies equally to individuals and corporations [5].
The new framework as set out in R v Jordan is as follows:
- First, the court created a presumptive ceiling of 18 months for matters in the Provincial Courts and 30 months for matters in Superior Courts to be completed. Time begins to run from the date when the Information was sworn to. This presumptive ceiling reflects what the Court determined was reasonable to expect.
- Second, once the presumptive ceiling has been exceeded, the burden shifts to the crown to rebut the presumption of unreasonableness ‘on the basis of exceptional circumstances’. Exceptional circumstances constitute what is reasonably unforeseen or reasonably unavoidable and cannot be remedied. If the exceptional circumstances relate to a discrete event, then the delay can be reasonably attributable to this event and is subtracted from the total time. For example, if the delay arose due to the case’s complexity, then the delay is reasonable and should also be subtracted from the time (at paras 69-73). Similarly, if the delay was caused by the defence, then it will also be subtracted from the total time.
- Third, if the total time which falls below the presumptive ceiling, the onus is upon the accused to establish that two things occurred: a) the accused took meaningful steps that demonstrates a sustained effort to expedite proceedings; and b) the case took markedly longer than it reasonable should have.
- Fourth, cases currently in the system require that the framework be applied with some flexibility and contextually, with the court being sensitive to the party’s reliance on the previous state of the law [6].
The test used to calculate delay may be summarized as follows:
- a) Calculate the total time that has elapsed from the charge date until the anticipated date when the trial will end (not the sentencing date). (
TOTAL DELAY
- )
b) What portion of the delay can be attributed to the defendant? (EXPLICIT WAIVER BY DEFENDANT AND/OR CONDUCT OF DEFENDANT)
c) Subtract that portion from the total time. (NET DELAY)
d) Compare NET DELAY WITH PRESUMPTIVE CEILING.
e) Establish if the presumptive ceiling has been exceeded. (YES/NO)
f) If YES it is presumed, that the delay is unreasonable.
g) Then establish if there is any evidence of exceptional circumstances or complexity of the case that would justify the presumptive ceiling being exceeded. (CROWN ONUS TO PROVE)
h) The delay resulting from exceptional circumstances or complexity of the case is subtracted from the NET DELAY. (REMAINING DELAY)
i) If NO and the REMAINING DELAY has not exceeded the presumptive ceiling, the onus shifts to the defence to show why the delay is unreasonable by establishing that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. (DEFENCE ONUS TO PROVE).[7]
Regulators should be wary of the Jordan framework and take measures to ensure their Provincial Court cases are not dismissed for delay. At Siskind Doyle LLP we are following how R v Jordan has been applied in provincial offences cases. The following are measures that regulators can implement to comply with the 18-month ceiling and to respond to potential Jordan applications.
Laying Charges: In most cases, Courts will start counting time from the date the accused is charged, which is the date the information is sworn.[8] Consider delaying the laying of charges until the Crown has its case ready; however Courts might also be wary of cases where the charge is brought a long time after the date of the offence.[9] There are also statute of limitations issues that may arise depending on the length of time and the circumstances.
Note that for offences brought under Part 1 of the Provincial Offences Act, by way of Certificate of Offence, the time might start to count from the date of the offence.[10]
Prosecuting Offences Under Both the Provincial Offences Act & the Criminal Code: If an offence occurs that could be prosecuted under the Provincial Offences Act and the Criminal Code, then it would not be advisable, following R. v. Campbell, to wait for the provincial offences trial to end to lay the criminal charges.[11] In Campbell, the Crown waited for the provincial offence investigation to conclude and for the accused to enter a guilty plea before laying criminal charges. Twenty-six months had elapsed. The Court held that both sets of charges could have proceeded in tandem and stayed the criminal charges.
Disclosure: Make timely disclosure early on in the case. If the defence has to bring motions or request adjournments because disclosure had not been finalized, it is unlikely that the Crown will benefit from the extra time it requires to prepare disclosure materials.[12]
Scheduling of Judicial Pretrial: Attempt to schedule the Judicial Pretrial early on. According to R v Gandhi, the defence cannot refuse to set a date because disclosure has not been finalized.[13]
The Court might not have the availability to schedule the Judicial Pretrial early-on or on consecutive dates. This lack of availability will most likely be categorized as systemic failure, but this delay is factored into the total delay that will be used to protect the defendant, rather than the prosecution. As the prosecutor, you will not be able to rely on systemic failure to argue that a discrete event occurred which should be subtracted from the total time.[14]
While scheduling the Judicial Pretrial, or as soon as practicable, state on the record that you are ready for trial. In Mississauga (City) v Uber Canada Inc., the Ontario Court of Justice did not attribute the delay of scheduling the judicial pre-trial to defence-caused delay because the Crown had not stated on the record that they were ready for trial.[15]
Case Management: In Jarvis, the SCC urged the Crown to request case management early on to seek the assistance of the Court.[16] In R. v. Live Nation Canada Inc., the Court commended the Crown for taking steps to mitigate the complexity of the case, including seeking Case Management after one of the accused lost his counsel.[17] Ultimately, the Crown was successful in arguing that the case was “complex” as defined in Jordan, but the case was still dismissed for delay.
Defence Waiver: When seeking adjournments, prosecutors should insist on a defence waiver for the purpose of a section 11(b) application. The waiver must “clearly and unequivocally” explicitly waive any period of the total delay.[18] The sole fact that the defence agrees to an adjournment will not amount to a defence waiver.[19]
Applications Brought by the Defence: Applications brought by defence counsel are part of the trial process and the delay occasioned by them will not be attributed to defence delay.[20] Only applications that are “frivolous in their nature or are being brought by the defendant to provoke delay” would be counted against a defendant to not allow him to benefit from the delay.[21]
Exceptional Circumstances: In the cases we reviewed, the following factors did not amount to an “exceptional circumstance” that the Crown could rely on to rebut the presumption of unreasonable delay:
- The fact that there were 2 judicial pre-trials.[22]
- The fact that the defence requested additional disclosure material.[23]
- Having a single corporate accused, one charge and an offence that took place on one day. Six witnesses for the Crown (including one expert) and one expert for the defence.[24]
- Bringing multiple charges against different accused, who were charged on different dates, and electing to proceed with all the charges together for pre-trial management purposes. This was not an exceptional circumstance, since it was a procedural choice made by the Crown.[25]
[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] R v Morin, [1992] 1 S.C.R. 771.
[3] R v Jordan, 2016 SCC 27.
[4] Mississauga (City) v Uber Canada Inc., 2016 ONCJ 746 at 82; R v C.I.P. Inc., [1992] S.C.J. No. 34 (S.C.C.); Ontario (Ministry of Labour) v Sterling Crane Division of Procrane Inc., 2016 ONCJ 692; Martin v Québec (Director of Criminal and Penal Prosecutions), 2016 QCCQ 12830.
[5] Mississauga (City) v Uber Canada Inc., 2016 ONCJ 746 at 89; R. v Stephensons Rental Services, 2017 ONCJ 466 at 34.
[6] R v Islam, 2017 ONCJ 335 at 12.
[7] R v Islam, 2017 ONCJ 335 at 13.
[8] Mississauga (City) v Uber Canada Inc., 2016 ONCJ 746 at 92; R. v. Gandhi, 2016 ONSC 5612 (Ont. S.C.J.) at 4.
[9] R. v. Campbell, 2017 ONSC 3442.
[10] R v Islam, 2017 ONCJ 335 at 31.
[11] 2017 ONSC 3442.
[12] R v Stephensons Rental Services, 2017 ONCJ 466 at 44.
[13] R v Gandhi, 2016 ONSC 5612 at 35; Mississauga (City) v Uber Canada Inc, 2016 ONCJ 746 at 121.
[14] 2017 ONCJ 590.
[15] 2016 ONCJ 746 at 121, 127.
[16] Jarvis at 70.
[17] R v Live Nation Canada Inc., 2017 ONCJ 590 at 86.
[18] Mississauga (City) v Uber Canada Inc., 2016 ONCJ 746 at 89.
[19] Ibid, at 94.
[20] Ibid, at 124
[21] R v Islam, 2017 ONCJ 335 at 35; R v Stephensons Rental Services, 2017 ONCJ 466, at 44.
[22] Supra, at 147.
[23] Supra, note 1 at 151.
[24] R v Stephensons Rental Services, 2017 ONCJ 466, at 43.
[25] Supra, note 1, at 158.