The delay arising from reserved judgements should not be included in calculating its length: R. v. K.G.K., 2020 S.C.C. 7 (CANLII).

In K.G.K. the defendant was charged in April 2013 with sexual offences involving a family member. At trial, the evidence and argument concluded in January 2016. The trial judge reserved his decision. On September 30, 2016 the parties were informed that judgment would be rendered on October 25. The accused was convicted.

On October 24, the accused had filed an application to stay the charges on the basis that the delay between the dates he was charged and judgement was rendered was unreasonable and therefore contrary to s.11(b). The trial judge recused himself from the application and, subsequently, a second judge dismissed the application. The Manitoba Court of Appeal dismissed the accused’s appeal.

For the Court, Moldaver J. found that, although s.11(b) applies to the entirety of the trial, including verdict and sentencing, verdict deliberation time should not be included in the calculation of the presumptive ceilings in R. v. Jordan, [2016] 1 S.C.R. 631. That is because the ceilings were intended to address the delay in bringing accused to trial. At paragraph 41 he observed:

 That the focus in Jordan was directed not at delay attributable to verdict deliberation time but delay in bringing accused persons to trial is borne out when one considers the host of practical problems that would arise if the presumptive ceilings were to include the date on which a verdict might be rendered. As I will explain, including verdict deliberation time within the presumptive ceilings would run counter to Jordan’s goals of clarity and predictability, and likely prove unworkable in practice.

The correct procedure in considering verdict deliberation time is to require the accused to establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. Described by the Court as a high bar, it requires the accused to rebut the presumption of judicial integrity; that is, that the trial judge balanced the need for timeliness, trial fairness considerations and practical constraints, taking only as much time as was reasonably necessary in the circumstances to reach a verdict.

Unlike discrete events, the particularly complex exception operates outside of the context of the presumptive ceilings: Ontario (Labour) v. Nugent, 2019 ONCA 999 (CANLII)

In Jordan, the Supreme Court identified two categories of exceptional circumstances that justify delay beyond the presumptive ceilings, namely discrete events and particularly complex cases. Discrete events are unexpected circumstances arising at trial (such as court closures caused by Covid-19?), which explain and justify delay beyond the presumptive ceiling. Complex cases, on the other hand, are prosecutions that, because of the nature of the evidence and/or the issues, require an unusual amount of preparation and trial time, justifying the delay. Indicia of complexity include: a large number of charges and defendants, voluminous disclosure, multiple expert witnesses and a large number of other witnesses.

Because delay caused by complexity is foreseeable and/or unavoidable, for the exception to be available to justify delay greater than the applicable ceiling, the Crown must develop and follow a concrete plan intended to minimize it. The plan must be assessed on a standard of reasonableness.

In Nugent one of the defendants along with his employer were charged with both criminal and OHSA offences arising out of the workplace death of a millwright working at the employer’s open pit gold mine located north of Cochrane, Ontario. Two other employees were co-defendants to the regulatory charges alone. Although separate proceedings, both the criminal and regulatory charges were pre-tried together, continuing over a 14-month period on a number of dates. Eventually, the criminal charges were resolved when the employer agreed to plead guilty. As part of the resolution, the Crown withdrew the criminal charge against the employee. On the regulatory side, the OHSA Crown withdrew against the employer but proceeded with the prosecution of the three employees. A four-week trial was scheduled to start approximately 20 months after the charges had been laid, triggering the defendants’ application to stay the charges on the basis unreasonable delay contrary to s.11(b).

The trial judge allowed the application, finding that it was unreasonable for the Crown not to have secured a trial date within the applicable (18 month) presumptive ceiling, meaning the completion of the trial within the ceiling was highly unlikely if not impossible. On the summary conviction appeal, the appeal judge agreed.

Speaking for the Court of Appeal, Huscroft J.A. allowed the Crown’s appeal and remitted the matter back to trial. At paragraph 39, he found:

Given that the very purpose of the particularly complex case exception is to justify delay for cases that require time beyond the presumptive ceiling, the availability of the exception cannot be conditioned on attempts to meet that ceiling. Put another way, a plan to minimize the delay caused by a particularly complex case is neither undermined nor rendered inadequate because it does not aim to conclude a case within the presumptive ceiling.

He also concluded that both lower courts had erred in failing to assess the Crown’s steps on reasonableness standard, instead parsing the steps effectively micromanaging the Crown’s case management.

On May 7, 2020 the Supreme Court denied the defendants leave to appeal.

Appeal courts have jurisdiction to hear first time delay/s.11(d) applications in provincial offences appeals:Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527 (CANLII).

Although appeal courts more frequently than not will decline to hear new arguments on appeal, including those that are Charter-based, the Court of Appeal for Ontario has re-affirmed that in appeals governed by s.121 of the Provincial Offences Act (POA), appeal judges, subject to their discretion, retain the jurisdiction to hear first time delay applications.

In Cobra the defendant had brought a s.11(b) application before the summary conviction appeal court after the Crown succeeded on appeal and obtained convictions in substitution for the defendant’s acquittals at trial.  The appeal judge summarily dismissed the application on the basis that delay was not raised at trial. The Court of Appeal dismissed the defendant’s appeal.

Writing for the court, Harvison Young J.A. applied R. v. Conway  [2010] 1 S.C.R. 765, finding that because POA s.121 provides appeal court judges with the power to decide questions of law, and the legislature has not excluded Charter issues from this power, POA appeal court judges have the jurisdiction to hear first time s.11(b) applications. However, on the basis of Guindon v. Canada, [2015] 3 S.C.R 3, the power is discretionary, and should be exercised exceptionally and never when it would cause prejudice to the other parties.

Although the defendant had been alive to Jordan-based delay issues at trial it believed were caused by the trial justice, it made the tactical decision not to bring a delay application. Harvison Young J.A. agreed that, on the record before the appeal judge,  he was justified in rejecting as speculative the defendant’s submission that fear of punishment justified its decision not raise delay at trial.

In addition, she observed, critically, that despite it being open to the defendant to bring a delay application in response to the Crown’s appeal, or, in the, alternative, should the Crown appeal succeed, to request that he order a new trial permitting a delay application to proceed, the defendant did neither.

She also concluded that the defendant had not shown that the application would not be prejudicial to the Crown. Although there was a record of the court dates and adjournments with related transcript before the appeal court, she accepted the Crown’s submission that had the delay issue been known prior to trial, it would have asked different questions of a witness to build a suitable evidentiary record to respond to the delay application. She was also sympathetic to the Crown submission that if the appeal judge had heard the application and ordered a stay, the Crown would require leave to appeal to the Court of Appeal as opposed to appeal as of right to the summary conviction appeal court.