Extraordinary Circumstances in Jordan Delay Analysis

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General Principles

A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances".[1]

"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that:[2]

  1. the delays are "reasonably unforeseen or reasonably unavoidable" and
  2. "Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

Generally, there are two categories of "extraordinary circumstances":

  1. discrete events or
  2. particularly complex cases.

Analysis should always begin looking at discrete events before looking at complexity.[3]

What type of circumstances are to be considered "extraordinary circumstances" is an open list and will depend on the "good sense and experience" of the trial judge.[4]

It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon".[5]

Seriousness Not a Factor

The seriousness or gravity of the offence does not pay in the consideration for delay.[6]

Appellate Review

When considering findings with respect to the presence of extraordinary circumstances, the appellate court should show deference.[7]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 69
  2. Jordan, ibid., at para 69
  3. R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 48
  4. Jordan, ibid., at para 71
  5. Jordan, ibid., at para 69
  6. Jordan, supra, at para 81
  7. R v Rice, 2018 QCCA 198 (CanLII), per Vauclair JA, at para 33
    Jordan, supra, at paras 65, and 78 to 79
    Cody, supra, at para 31

Discrete Events

Discrete events are the first of two categories of extraordinary circumstances that are permissible forms of delay and so are not calculated against the Jordan ceiling.

They are the events that "disturb the normal course of the matter and which no one [being Crown and Court] ... could do anything to prevent".[1]

The discrete events category require that the developments be "unforeseeable and unavoidable".[2] They must be events that "could not be reasonably mitigated by the Crown and the justice system."[3]

Duty to "mitigate" by "reasonable steps"

Any portion of the delay that "could reasonably have [been] mitigated" will be subtracted from the period of time considered "extraordinary".[4]

Once the discrete event occurs the Crown then has an obligation to try to resolve the issue without causing any more delay.

For any instance of a discrete event, the Crown and justice system "must always be prepared to mitigate the delay".[5] In any claim of a "discrete event, the Crown has the burden to show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."[6]

The Crown and justice system must prioritize cases that are delayed due to discrete events.[7]

Reasonable step do not have to be successful, they only need to be responsive to avoid delay.[8]

  1. R v Rice, 2018 QCCA 198 (CanLII), per Vauclair JA, at para 84
  2. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 73
  3. R v Cody, [2017] 1 SCR 659, 2017 SCC 31 (CanLII), per curiam, at para 48
  4. Jordan, ibid., at para 75
  5. Jordan, ibid., at para 75
    R v Zikhali, 2019 ONCJ 24 (CanLII), per Burstein J, at para 17
  6. Jordan, ibid., at para 70
  7. Jordan, ibid., at para 75
    Rice, supra, at para 85
  8. Jordan, ibid., at para 70

Where "Reasonable Steps" Mitigation is Required

Recanting Witnesses

A witness who recants unexpectedly during trial will be a discrete event.[1] However, it has been found that where the recantation was known to the Crown well in advance of trial it can be rejected as not being discrete event.[2]

Similarly, a witness refuses to testify, that too will generally be considered a discrete event.[3]

Trial Going Overtime

Where Crown and defence significantly underestimate the time required for trial, as long as they were making good-faith efforts to account for the required time, the resultant delay would be a "extraordinary circumstances".[4]

Swapping Out Crown Counsel

Where the Crown bears the burden to establish reasonable steps to mitigate delay, there is a need in certain circumstances for the Crown present evidence explaining the reasons why changing to different Crown counsel may not have been a practical response to a discrete event.[5]

Other Examples of "reasonable steps"

An example of reasonable steps include:

  • seeking the assistance of the court;[6]
  • seeking assistance of defence counsel to streamline evidence or issues for trial;[7]
  • seeking severance where a co-accused is causing delay[8]
  • coordinate the pre-trial applications.[9]
Consequence of Discrete Events

Anytime that a discrete event has been found that delay caused by the time must be deducted from the total calculation.[10]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 73
  2. R v Smythe, 2017 SKQB 86 (CanLII), per McMurtry J, at paras 30 to 35
  3. R v Tsega, 2017 ONSC 3090 (CanLII), per Aitken J
  4. R v Testroete, 2017 NSPC 50 (CanLII), per Tax J, at para 150
    cf. R v Foroughi-Mobarakeh, 2017 NSSC 100 (CanLII), per Murray J, at paras 57 to 64
  5. e.g. Zikhali, supra, at para 38
  6. Jordan, ibid., at para 70
  7. Jordan, ibid., at para 70
  8. R v Singh, 2016 BCCA 427 (CanLII), per Goepel J
  9. Jordan, supra, at para 70
  10. R v Cody, [2017] 1 SCR 659, 2017 SCC 31 (CanLII), per curiam, at para 48

When "Discrete Events" Are Not Mitigatable

Certain circumstances have been found to constitute discrete events, including:

  • malfunction of court recording system.[1]
  • a witness refusing to testify[2]

There are circumstances that have been rejected as being discrete events:

  • drafting errors in joint statement of fact[3]
Medical

Personal or medical emergencies for the accused, counsel, judge, or jury member will usually be unavoidable discrete events.[4]

Illnesses[5] or an important medical conditions or procedures on any justice system participant will also be a discrete event.[6] As would a police officer witness on medical leave.[7]

The condition can include non-participants such as emergencies of the family of the participant.[8]

The Court can take into account the particular circumstances and resources of the jurisdiction in order to determine if a reasonable alternative was available.[9]

Late Notice of Defence Charter Application or Re-Election

Where the accused re-elects to a different court on short notice, the Crown will often not be able to mitigate the delay so it will generally be attributed as an unavoidable discrete event delay.[10] Where notice of re-election is early enough to permit mitigation, the Crown must do it or else the delay will not be counted as discrete.[11]

A defence application that happens after the budgeting of trial time has been done will typically not be mitigatable and so will be a discrete event delay.[12]

Effecting Service on Witnesses

The failure to serve a witness in a timely manner will not usually be a discrete event, even where the difficulty may create complexity to the case.[13] Difficulties in locating witnesses is a "common occurrence" in criminal courts.[14] The Crown should have to show what efforts were made to keep track of, and manage the witness, before the court should venture to call the failure to serve the witness a possible discrete event.[15] Where the witness is known to be reluctant, the Crown is expected to take that into account in the course of their management of the witness.[16]

One of the reasons loss of contact with a witness should not be a discrete event is because Crown should be expected to have "periodic communication" with witnesses where the case will take years to complete.[17]

Late Emergence of New Witnesses

Where there is the discovery of a late-emerging cooperative witness, this can be considered an unavoidable discrete event.[18]

Difficulty Securing an Interpreter

The failure to arrange for an interpreter to attend for trial will not normally be a discrete event.[19]

Under the pre-Jordan framework, the Crown had the responsibility to secure an interpreter for any given Cornw witness.[20]

Judges will consider the circumstances of the particular jurisdiction, including the prevalence of the language in the community and the likelihood that there are qualified interpreters that are readily locatable.[21]

Mistrial

Generally, a mistrial will not be foreseeable and so can be a discrete event.[22] However, there is suggestion that certain mistrials may be foreseeable and therefore not a discrete event.[23]

  1. R v Waboose, 2017 ONSC 3862 (CanLII), per Warkentin J
  2. R v Tsega, 2017 ONSC 3090 (CanLII), per Aitken J
  3. R v Cody, [2017] 1 SCR 659, 2017 SCC 31 (CanLII), per curiam, at paras 58 to 60
  4. R v Robert, 2018 ONSC 545 (CanLII), per Thomas J
    R v Giles, 2017 BCSC 73 (CanLII), per Ross J (illness)
    R v Windibank, 2017 ONSC 855 (CanLII), per Howard J (illness)
    R v Nazarek, 2017 BCSC 2340 (CanLII), per Watchuk J (illness)
    R v Chandroo, 2017 QCCQ 8155 (CanLII), per Marchi J (illness)
    R v Herman, 2017 BCSC 215 (CanLII), per Davies J (Crown counsel injury)
    R v Lee, 2017 ONSC 4862 (CanLII), per Forestell J
    R v Sachro, 2017 ONCJ 570 (CanLII), per Felix J
    R v Cook, 2017 QCCQ 9785 (CanLII), per Beauchemin J
    R v A(SS), 2017 BCPC 76 (CanLII), per Meyers J (Crown counsel ill)
    R v Hertyk, 2017 ONCJ 641 (CanLII), per Band J
    R v Akumu, 2017 BCSC 896 (CanLII), per Fisher J
    R v Charles, 2017 QCCQ 1321 (CanLII), per Marchi J (defence counsel had car problems and did not make it to court on time)
    R v Coulter, 2016 ONCA 704 (CanLII), per Gillese JA, at paras 81 to 84 (Crown counsel was in a car accident)
  5. Giles, supra, at paras 185 to 187
    Windibank, supra, at paras 50 to 52
    Nararek, supra, at para 135
    Chadroo, supra, at paras 38 to 39
    A(SS), supra, at para 21
  6. R v Sachro, 2016 ONCJ 570 (CanLII), per Kwolek J, at para 24 (Caesarean operation)
    R v Curry, 2016 BCSC 1435 (CanLII)
    R v Cook', 2017 QCCQ 9785 (CanLII), per Beauchemin J (complainant medical issue)
    R v L(R), 2016 ONSC 8008 (CanLII), per Glithero J, at paras 38 to 42 (complainant's pregnancy, unexpected by the Crown)
  7. R v Gopie, 2017 ONCA 728 (CanLII), at paras 163 to 164, per Gillese JA R v Hertyk, 2017 ONCJ 641 (CanLII), per Band J, at para 25 (shoulder injury of police officer)
  8. R v Robert, 2018 ONSC 545 (CanLII), per Thomas J, at para 97
    R v Akumu, 2017 BCSC 896 (CanLII), per Fisher J, at paras 108 to 109 (juror's family medical emergency)
  9. e.g. R v Brown, 2017 NSPC 27 (CanLII), per Scovil J, at para 30
  10. R v Truong, 2017 BCSC 736 (CanLII), per Kent J, at paras 60 to 62
  11. R v Eremenko, 2018 BCSC 1138 (CanLII), at para 105
  12. e.g. Truong, ibid., at para 68
    R v Cristoferi-Paolucci, 2016 ONSC 6923 (CanLII), per Goldstein J, at paras 19 to 24 (failure to give notice under mistaken belief of Crown consent to application)
  13. R v Millar, 2016 BCSC 1887 (CanLII), at para 164 appealed on different grounds at 2019 BCCA 298 (CanLII)
    R v Bishop, 2016 ONSC 7734 (CanLII), per Phillips J, at para 16
    R v Smythe, 2017 SKQB 86 (CanLII), at paras 36 to 38
  14. Smythe, ibid., at para 37
  15. Smythe, ibid., at para 37
  16. Smythe, ibid., at para 38
  17. Bishop, supra, at para 16
  18. R v Jurkus, 2018 ONCA 489 (CanLII), per Fairburn JA leave refused [2018] SCCA 325
  19. R v Paauw, 2016 ONSC 7394 (CanLII), per Laliberte J
    R v Sinatra, [<http://canlii.ca/t/gnf30 2016 ONCJ 101] (CanLII), per Bourque J
    R v Nguyen, 2016 ONCJ 712 (CanLII), per Campbell J (unavailability of vietnamese interpreter was found foreseeable)
    R v Khou, 2016 ONCJ 865 (CanLII)
  20. R v Askov, [1990] 2 SCR 1199, 1990 CanLII 45 (SCC), per Cory J
  21. Paauw, supra, at paras 48 to 51
  22. e.g. R v Mallozzi, 2017 ONCA 644 (CanLII), per Benotto JA, at paras 41 to 42
    R v Wu, 2017 BCSC 2373 (CanLII), at paras 83, 90 to 91
    R v Chrishurajah, 2017 BCSC 820 (CanLII), per Wedge J, at paras 98 to 100
    R v Becket, 2017 BCSC 1116 (CanLII), per Beames J
  23. e.g. R v T(JH), 2016 BCSC 2382 (CanLII), per Tindale J, at paras 156 to 173 (crown witness "blurted out" inadmissible bad character evidence)

"Particularly Complex" Cases

Consideration of a case's complexity is a "qualitative" assessment of the case "as a whole".[1]

A complex case is one where "the nature of the evidence" and "the nature of the issues" requires "an inordinate amount of trial or preparation time".[2]

This assessment is considered in context of whether the complexity is "sufficient to justify its length" and whether the "net delay is reasonable in view of the case's overall complexity".[3]

Ceiling Assumes Moderate Complexity

The setting of the presumptive ceilings already reflects "increased complexity of criminal cases since Morin"[4] in many aspects including new offences, procedures, obligations and law.[5] It is said that the ceilling reflects an already growing complexity of cases as the "long time to wait for justice".[6]

The use of delay for complexity should be rare as the ceiling assumes that a "vast majority of cases" can be completed within the ceiling period.[7]

Factors Relating to Complexity

There are certain "hallmarks of particular complexity" to consider including:[8]

  • Voluminous disclosure
  • Number of Witnesses
  • Proceedings Against Multiple Co-Accused and
  • nature of the evidence, including:
    • cross-border or international evidence/witnesses[9]
    • multiple languages and the use of interpreters[10]
    • numerous or complex expert witnesses
  • Nature of the Issues, including
    • number of charges
    • number of pre-trial applications
    • novel or complex litigation issues[11]
    • rarely applied laws;
    • multi-party conspiracy allegations[12]

Assessment of what constitutes a complexity for counsel is well within the expertise of the trial judge.[13]

The judge may also rely on the assertions of counsel as to the level of complexity.[14] Similarly, the Crown may rely upon representations of the defence as to how complex they believe their case to be.[15]

Reasonable Steps

Where the case is particularly complex the Crown is expected to take reasonable steps to mitigate the anticipated delay arising from the complexity.[16] This primarily involves developing and following "a concrete plan to minimize the delay occasioned by such complexity".[17] Failure to make and stick to a plan will mean that the exception cannot be relied upon.[18]

The judge must consider the steps taken and not taken by the Crown.[19] Any exercise of discretion must "conform" to the accused s. 11(b) rights.[20]

Causal Connection

It is necessary that when considering a particularly complex case that the amount of time deducted from the delay flow from the identified complex feature.[21]

  1. R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 64
  2. Cody, ibid., at para 64
    R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 77
    R v Manasseri, 2016 ONCA 703 (CanLII), per Watt JA, at para 311 ("The second category of exceptional circumstances consists of cases that are particularly complex. This degree of complexity may arise from the nature of the evidence or the nature of the issues.")
    R v Rice, 2018 QCCA 198 (CanLII), per Vauclair JA, at paras 87 to 88
  3. Cody, supra, at para 64
  4. R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), per Sopinka J
  5. Cody, supra, at para 63
    Jordan, supra, at paras 42 and 53
  6. Jordan, supra, at para 57
  7. Rice, supra, at para 43
    Jordan, supra, at para 56 ("The public should expect that most can and should be resolved before reaching the ceilling")
  8. Jordan, supra, at para 77
    R v Jansen and Hall, 2017 ONSC 2954 (CanLII), per Sosna J, at paras 59 to 66
  9. R v Singh, 2016 BCCA 427 (CanLII), per Goepel JA, at para 87
  10. Singh, ibid., at para 87
  11. e.g. R v Mahaffy, 2018 ONSC 349 (CanLII), per Cornell J, at para 31
  12. Singh, ibid., at para 87
  13. Jordan, supra, at para 79
  14. e.g. R v Barron (Houle), 2017 ONCA 772 (CanLII), per Trotter JA, at para 67
    R v Truong, 2017 BCSC 736 (CanLII) (CanLII), per Kent J, at para 72
    R v Muhammed, 2018 ONSC 4463 (CanLII) (CanLII), per Trimble J, at paras 58 to 61
  15. R v Pavao, 2017 ONSC 6873, per Dow J
  16. Rice, supra, at para 96
    Jordan, supra, at para 70
  17. Jordan, supra, at para 79
    R v Saikaley, 2017 ONCA 374 (CanLII), per curiam, at para 79 ("The Crown, having initiated what could reasonably be expected to be a complex prosecution, has a positive duty to develop and follow a concrete plan to minimize the delay occasioned by such complexity.")
    R v Picard, 2017 ONCA 692 (CanLII), per Rouleau JA
  18. Saikaley, supra, at para 79("Where the Crown has failed to do so, it will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control")
  19. Jordan, supra, at para 70
    Rice, supra, at para 96
  20. Jordan, supra, at para 79
    Saikaley, supra, at para 36
  21. e.g. R v McBride, 2017 BCSC 1480 (CanLII), per Betton J

Voluminous disclosure

"Voluminous disclosure" is a "hallmark of particularly complex cases" however it is "not automatically demonstrative of complexity".[1]

Evidence can include an inventory list of documents and number of pages of disclosure.[2]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 77
    R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 65
  2. e.g. R v Jansen and Hall, 2017 ONSC 2954 (CanLII), per Sosna J, at paras 61 to 65

Multiple Co-Accused

See also: Joinder and Severance of Charges

Proceeding against several co-accused together may "enhance or contribute" to the complexity of a case.[1] However, multiple co-accused per se does not render the case particularly complex.[2]

The delay caused by multiple co-accused is an accepted "fact of life" and must be accounted for in what constitutes a reasonable time for trial.[3]

There will always be scheduling conflicts between the co-accused that result in greater delay of all parties.[4]

Crown cannot ignore situations where one accused is being "held hostage" by the delays caused by the other accused in the course of joint proceedings.[5]

However, severance cannot be seen as a panacea when delay arises from a multi-party indictment.[6]

  1. R v Manasseri, 2016 ONCA 703 (CanLII), per Watt JA ("Proceeding jointly against several co-accused, provided it is in the interests of justice to do so, may also enhance or contribute to the complexity of the case")
    R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 77
  2. R v DA, 2018 ONCA 96 (CanLII)
    R v Albadry, 2018 ONCJ 114 (CanLII), per Doody J, at paras 27 to 28
    R v Kranc, 2018 BCPC 26 (CanLII), per Janzen J, at para 64
    R v Thomson, 2017 BCSC 2151 (CanLII), per Church J, at paras 55 to 57
    R v S(C), 2017 ONCJ 828 (CanLII), per McArthur J, at para 28
  3. R v Vassell, 2016 SCC 26 (CanLII), per Moldaver J, at para 6
  4. R v Dhaliwal, 2017 BCSC 2215 (CanLII), per Ross J, at para 26
  5. Vassell, ibid., at para 7
  6. R v Singh, 2016 BCCA 427 (CanLII), per Goepel JA, at para 81 ("Severance is not a panacea when delay issues arise in a multi-party indictment. The Jordan framework does not require severing proceedings in all cases. While there may well be cases where severance would be appropriate to avoid some delay, the interests of justice may dictate otherwise.")

Special Jurisdictions

There is a suggestion that special rules should apply to the territory of Nunavut given the sparse population over a broad geographic area.[1]

See Also