As discussed in our previous post, the Supreme Court of Canada recently dramatically altered the framework applicable to the right to a criminal trial within a reasonable time in R. v. Jordan, 2016 SCC 27. This decision has already had a significant impact on the operation of criminal courts in Ontario.

In light of this decision, the Ontario Court of Appeal requested further submissions on two s. 11(b) appeals that had already been argued before the Court under the previous framework. On September 28, 2016, the Court released its decisions in R. v. Manasseri, 2016 ONCA 703 and R. v. Coulter, 2016 ONCA 704. These decisions provide some helpful guidance on how the Courts of Ontario will apply the new framework to “transitional” cases in the system, particularly cases where 1) the delay is just below the presumptive ceilings established in Jordan, and 2) the delay is primarily caused by a co-accused.

Ontario Court of Appeal Expands on New Framework

In Coulter, the Ontario Court of Appeal provided a very succinct 6-step summary of the new framework at paragraphs 34 to 59, which builds upon Jordan. The Ontario Court of Appeal defined many helpful key terms that may be used by counsel and judges in s. 11(b) applications in Ontario moving forward:

Step 1: Calculate Net Delay

  1. Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.
  2. Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from:

a. Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights;

b. Defence-Caused Delay: Delay caused solely by the conduct of the defence.

Step 2: Determine the Presumptive Ceiling

  1. For cases in provincial courts, the Presumptive Ceiling is 18 months.
  2. For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.

Step 3: Calculate Remaining Delay, if Necessary

  1. If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay.
  2. If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.

Step 4: Remaining Delay Greater than Presumptive Ceiling

  1. Where the Remaining Delay is still greater than the Presumptive Ceiling, it is automatically presumed that the delay is unreasonable.
  2. The Crown may only rebut this presumption by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.
  3. Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

  1. Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.
  2. In order to establish that the delay was unreasonable, the accused must show that:

a. It made a sustained effort to expedite the proceedings; and

b. the case took markedly longer than it reasonably should have.

  1. Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.

Step 6: Transition

  1. Where charges were instituted pre-Jordan, the application of the above framework must take into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

Coulter: Lessons on Defence Delay and Discrete Events

In Coulter, the accused was charged with five counts of accessing, attempting to access and possessing child pornography on November 18, 2011. The Crown and police continued to investigate and another charge of making child pornography was laid on June 8, 2012. The trial ultimately concluded in February 2014, making the Total Delay equal to 29 months.

The Court found that 6 months should be subtracted for Defence Delay. The defence expressly waived 3 months of delay. 3 months was Defence-Caused Delay, the classification of which is instructive:

  1. 1 week: The Crown and Court were available to schedule a judicial pre-trial on August 22, 2012. Defence counsel was not available on this date, and it was scheduled for the following week August 29, 2012. Following Jordan, the practice that has developed at some criminal courts when attempting to set dates for pre-trial conferences and trials is the trial coordinator’s office will offer the first available date and first ask whether the Crown is available to proceed on that date, and then ask whether the defence is available to proceed. The availabilities are marked on a form which is then filed with the Court. Any dates offered where Crown counsel is available, and defence counsel is not, will count as Defence-Caused Delay.
  2. 3 weeks: The parties had set a trial date for June 5 and 6, 2013. The trial coordinator subsequently advised that the trial could proceed earlier on May 10 and 17, 2013. Defence counsel wanted to keep the original trial dates. Any periods where an earlier trial date becomes available which is not accepted by defence counsel will count as Defence-Caused Delay.
  3. 1 month: Defence counsel requested an adjournment of the June 5 and 6, 2013 trial dates as they were occupied with another jury trial. The trial was rescheduled to August 9, 2013. Any trial adjournments requested by defence counsel when the Crown is ready to proceed will count as Defence-Caused Delay.

The Net Delay was thus 23 months. The Court also found that 6 months of the delay was attributable to a Discrete Event. On the morning of trial, Crown counsel was involved in a car accident and the trial had to be adjourned to a date six months later. The Court accepted that this was not a reasonably foreseeable event, and the resulting delay could not be mitigated. The Remaining Delay was thus 17 months.

Since the Remaining Delay was below the 18 month Presumptive Ceiling, the Court considered whether the defence had established that the delay was unreasonable. The Court made special note of the passage from Jordan that “given the level of institutional delay tolerated under the previous approach, a stay of proceedings [where the Remaining Delay is] below the ceiling will be even more difficult to obtain for cases currently in the system.”[1] It concluded that the delay in this case was not a clear case of unreasonable delay warranting a stay below the presumptive ceiling.

Coulter speaks to the caution with which Jordan is being applied during the transition to the new regime. Given the importance of what amount to largely arbitrary Presumptive Ceilings, it is incumbent on defence counsel to carefully state availability on the record. Coulter is also a reminder of the value of involving a larger firm so that the unavailability of a particular lawyer does not prejudice the accused. As Coulter demonstrates, even small delays, like those attributed to the defence, can dramatically alter the outcome of the Jordan analysis. If just one month had not been classified as Defence-Caused Delay, it would have been the Crown that would have had the tough onus to meet, not the accused.

Manasseri: Lessons on Delay Caused by a Co-Accused

In Manasseri, an individual was assaulted on New Year’s Eve 2004 by two others, Manasseri and Kenny, and subsequently died. Kenny was initially charged with assault on a separate information and his summary conviction trial was scheduled for April 2006. Shortly before the trial was to commence, a new information was laid charging Manasseri and Kenny together; Manasseri with second-degree murder and Kenny with manslaughter. The case moved forward very slowly due to Manasseri repeatedly changing counsel, and generally being unwilling to move the case forward. The trial did not conclude until June 2012.

The Total Delay was 68 months. The Court held that no deductions for Defence Delay or Discrete Events were warranted.

The Crown argued that by virtue of the complexity of the joint trial of the two accused, it was a complex case sufficient to engage an exceptional circumstance explaining the delay. The Court held that while a Crown is certainly entitled to proceed jointly against multiple accused, it has to be cognizant of the effect of this decision on the s. 11(b) rights of all accused. Any Defence-Caused Delays by one co-accused are not deducted from the Total Delay of the other co-accused provided that they are prepared to proceed.

When it became clear that Manasseri was not interested in proceeding with the matter in a timely fashion, the Crown had to undertake some steps to speed up this process, either by trying the charges against Kenny separately, or seeking a direct indictment from the Attorney General:

I do not for a moment suggest that the Crown was disentitled to proceed jointly against Manasseri and Kenny. But what it was required to do, but failed to do as later events confirmed, was to remain vigilant that its decision not compromise Kenny’s s. 11(b) rights. A joint trial is not some magic wand the Crown can wave to make a co-accused’s s. 11(b) rights disappear. The “right” to a joint trial only prevails to the extent that such a proceeding is in the interests of justice both pre and post-Jordan.[2]

The Crown’s failure to take any steps to move the matter forward in the face of Kenny’s repeated statements that he was interested in proceeding with all due dispatch was described by the court as a “poster child for the culture of complacency towards delay” that Jordan was directed at remedying:

Finally, the trial Crown’s conduct of this case is a poster child for the culture of complacency towards delay so rightly condemned in Jordan. A leisurely approach to disclosure. Letting the schedule of Manasseri’s then counsel control setting the date for a preliminary inquiry more than two years after the accused were charged. Failure to pay any real heed to the s. 11(b) interests of Kenny whose counsel had been advancing them from the outset.[3]

Following Manasseri and the Supreme Court of Canada’s recent similar decision in R. v. Vassell, 2016 SCC 26, it will be incumbent upon defence counsel to clearly state that they are willing and able to proceed in circumstances where counsel for a co-accused is not. Further to Coulter, anything less may negate the delay. Where one accused demonstrates a clear willingness to proceed, the Crown may be forced to sever the charges if a joint trial cannot be completed within the Presumptive Ceiling.

Impact on Criminal and Civil Litigation Generally

Following Jordan, Crown prosecutors are noticeably taking a more activist role in ensuring that disclosure is completed in a timely fashion, dates are set promptly, waivers of s. 11(b) rights are stated on the record, and generally that the proceeding is moved along to its conclusion before hitting the Presumptive Ceiling. At least initially, it appears that Jordan has had its desired impact. The allocation of additional prosecutorial and judicial resources will be required in order to sustain this positive movement and attain the wide-ranging impact the Supreme Court of Canada desired. Courts appear to be re-allocating resources from civil matters to criminal matters and it has become noticeably more difficult to obtain civil motion and trial dates. Without increased judicial resources, the court system may face a similar rebuke regarding delay in the civil context. It may take a considerable amount of time and further encouragement from the courts for these deep systemic changes to be realized.

Implications for Organizational Liability

Manasseri has particularly important implications for organizational liability, in which a corporation may be tried with an employee. In these circumstances, corporate liability under sections 22.1 and 22.2 of the Criminal Code may depend on proving the culpability of a senior officer, or even a representative of the organization. Where the co-accused are represented by different counsel, consideration should be given to whether it is worthwhile to force severance on pain of a stay.

Implications for Quasi-Criminal/Regulatory Cases to be Determined

In our previous post, we noted that the Jordan framework should apply equally to quasi-criminal and regulatory prosecutions with corporate defendants able to rely on the same Presumptive Ceilings without having to establish “irremediable prejudice.” There are several s. 11(b) applications that are currently being advanced in quasi-criminal and regulatory proceedings in light of Jordan and thus some clarity on this important point is likely forthcoming. We will continue to report on developments in this rapidly changing area of the law.