Difference between revisions of "Extraordinary Circumstances in Jordan Delay Analysis"

From Criminal Law Notebook
Jump to navigation Jump to search
(One intermediate revision by the same user not shown)
Line 2: Line 2:
 
==General Principles==
 
==General Principles==
 
A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances".<ref>
 
A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances".<ref>
''R v Jordan'', [http://canlii.ca/t/gsds3 2016 SCC 27] (CanLII){{perSCC|Moldaver, Karakatsanis and Brown JJ}}{{at|69}}<br>
+
''R v Jordan'', [http://canlii.ca/t/gsds3 2016 SCC 27] (CanLII){{perSCC|Moldaver, Karakatsanis and Brown JJ}}{{atL|69|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that;
+
"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that:<ref>
 +
{{ibid1|Jordan}}{{atL|69|http://canlii.ca/t/gsds3}}
 +
</ref>
 
# the delays are "reasonably unforeseen or reasonably unavoidable" and
 
# the delays are "reasonably unforeseen or reasonably unavoidable" and
# Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".
+
# "Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".
  
 
Generally, there are two categories of "extraordinary circumstances":
 
Generally, there are two categories of "extraordinary circumstances":
 
# discrete events or  
 
# discrete events or  
 
# particularly complex cases.
 
# particularly complex cases.
 +
 +
Analysis should always begin looking at discrete events before looking at complexity.<Ref>
 +
''R v Cody'', 2017 SCC 31 (CanLII){{fix}}{{TheCourtSCC}}{{at|48}}
 +
</ref>
  
 
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.<ref>
 
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.<ref>
{{ibid1|Jordan}}{{at|71}}<br>
+
{{ibid1|Jordan}}{{atL|71|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
 
It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon".<ref>
 
It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon".<ref>
{{ibid1|Jordan}}{{at|69}}<br>
+
{{ibid1|Jordan}}{{atL|69|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
 
; Seriousness Not a Factor
 
; Seriousness Not a Factor
 
The seriousness or gravity of the offence does not pay in the consideration for delay.<ref>
 
The seriousness or gravity of the offence does not pay in the consideration for delay.<ref>
{{supra1|Jordan}}{{at|81}}<br>
+
{{supra1|Jordan}}{{atL|81|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
 
{{Reflist|2}}
 
{{Reflist|2}}
 +
 
==Discrete Events==
 
==Discrete Events==
 
The discrete events category require that the developments be "unforeseeable and unavoidable".<ref>
 
The discrete events category require that the developments be "unforeseeable and unavoidable".<ref>
''R v Jordan'', [http://canlii.ca/t/gsds3 2016 SCC 27] (CanLII){{perSCC|Moldaver, Karakatsanis and Brown JJ}}{{at|73}}<br>
+
''R v Jordan'', [http://canlii.ca/t/gsds3 2016 SCC 27] (CanLII){{perSCC|Moldaver, Karakatsanis and Brown JJ}}{{atL|73|http://canlii.ca/t/gsds3}}<br>
 +
</ref>
 +
They must be events that "could not be reasonably mitigated by the Crown and the justice system."<ref>
 +
''R v Cody'', [2017] 1 SCR 659, [http://canlii.ca/t/h4bfk 2017 SCC 31] (CanLII){{atL|48|http://canlii.ca/t/h4bfk}}
 
</ref>
 
</ref>
  
Line 35: Line 45:
  
 
The Crown must show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."<ref>
 
The Crown must show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."<ref>
{{ibid1|Jordan}}{{at|70}}<br>
+
{{ibid1|Jordan}}{{atL|70|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
 
Reasonable step do not have to be successful, they only need to be responsive to avoid delay.<ref>
 
Reasonable step do not have to be successful, they only need to be responsive to avoid delay.<ref>
{{ibid1|Jordan}}{{at|70}}<br>
+
{{ibid1|Jordan}}{{atL|70|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
Line 48: Line 58:
 
''R v Singh'', [http://canlii.ca/t/gvg4n 2016 BCCA 427] (CanLII){{fix}}
 
''R v Singh'', [http://canlii.ca/t/gvg4n 2016 BCCA 427] (CanLII){{fix}}
 
</ref>
 
</ref>
* coordinate the pre-trial applications.<ref>{{ibid1|Jordan}}{{at|70}}<br></ref>
+
* coordinate the pre-trial applications.<ref>
 +
{{supra1|Jordan}}{{atL|70|http://canlii.ca/t/gsds3}}<br></ref>
  
 
An example of valid discrete events would be a recanting complainant.<ref>
 
An example of valid discrete events would be a recanting complainant.<ref>
{{ibid1|Jordan}}{{at|73}}<br>
+
{{ibid1|Jordan}}{{atL|73|http://canlii.ca/t/gsds3}}<br>
 
</ref>
 
</ref>
  
 
; Court and Crown Duty to Mitigate
 
; Court and Crown Duty to Mitigate
 
Any portion of the delay that "could reasonably have [been] mitigated" will be subtracted from the period of time considered "extraordinary".<ref>
 
Any portion of the delay that "could reasonably have [been] mitigated" will be subtracted from the period of time considered "extraordinary".<ref>
{{ibid1|Jordan}}{{at|75}}
+
{{ibid1|Jordan}}{{atL|75|http://canlii.ca/t/gsds3}}
 
</ref>
 
</ref>
  

Revision as of 13:33, 14 August 2019

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]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para http://canlii.ca/t/gsds3
  2. Jordan, ibid., at para http://canlii.ca/t/gsds3
  3. R v Cody, 2017 SCC 31 (CanLII)(complete citation pending), per curiam, at para 48
  4. Jordan, ibid., at para http://canlii.ca/t/gsds3
  5. Jordan, ibid., at para http://canlii.ca/t/gsds3
  6. Jordan, supra, at para http://canlii.ca/t/gsds3

Discrete Events

The discrete events category require that the developments be "unforeseeable and unavoidable".[1] They must be events that "could not be reasonably mitigated by the Crown and the justice system."[2]

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

The Crown must show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."[3]

Reasonable step do not have to be successful, they only need to be responsive to avoid delay.[4]

An example of reasonable steps include:

  • seeking the assistance of the court;[5]
  • seeking assistance of defence counsel to streamline evidence or issues for trial;[6]
  • seeking severance where a co-accused is causing delay[7]
  • coordinate the pre-trial applications.[8]

An example of valid discrete events would be a recanting complainant.[9]

Court and Crown Duty to Mitigate

Any portion of the delay that "could reasonably have [been] mitigated" will be subtracted from the period of time considered "extraordinary".[10]

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".[11]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para http://canlii.ca/t/gsds3
  2. R v Cody, [2017] 1 SCR 659, 2017 SCC 31 (CanLII), at para http://canlii.ca/t/h4bfk
  3. Jordan, ibid., at para http://canlii.ca/t/gsds3
  4. Jordan, ibid., at para http://canlii.ca/t/gsds3
  5. Jordan, ibid., at para 70
  6. Jordan, ibid., at para 70
  7. R v Singh, 2016 BCCA 427 (CanLII)(complete citation pending)
  8. Jordan, supra, at para http://canlii.ca/t/gsds3
  9. Jordan, ibid., at para http://canlii.ca/t/gsds3
  10. Jordan, ibid., at para http://canlii.ca/t/gsds3
  11. R v Testroete, 2017 NSPC 50 (CanLII)(complete citation pending), per Tax J, at para 150
    cf. R v Foroughi-Mobarakeh, 2017 NSSC 100 (CanLII), per Murray J, at paras 57-64(complete citation pending)

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 evidence or the nature of the issues, require[s] 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 reasonabe in view of the case's overall complexity".[3]

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]

Factors to consider when evaluating the case's complexity include:[6]

  • Voluminous disclosure
  • Number of Witnesses
  • Proceedings Against Multiple Co-Accused and
  • Nature of the Issues, including
    • cross-border evidence[7]
    • multi-party conspiracy allegations[8]
    • multiple languages and the use of interpreters[9]
  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
  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 77
    R v Jansen and Hall, 2017 ONSC 2954 (CanLII), per Sosna J, at paras 59 to 66
  7. R v Singh, 2016 BCCA 427 (CanLII)(complete citation pending), at para 87
  8. Singh, ibid., at para 87
  9. Singh, ibid., at para 87

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
    Cody, supra, at para 65
  2. e.g. Jansen and Hall, supra, at paras 61 to 65

Multiple Co-Accused

See also: Joinder and Severance of Charges

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.[1]

There will always be scheduling conflicts between the co-accused that result in greater delay of all parties.[2]

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.[3]

However, severance cannot be seen as a panacea when delay arises from a multi-party indictment.[4]

  1. R v Vassell, 2016 SCC 26 (CanLII), per Moldaver J, at para 6
  2. R v Dhaliwal, 2017 BCSC 2215 (CanLII), per Ross J, at para 26
  3. Vassell, ibid., at para 7
  4. R v Singh, 2016 BCCA 427 (CanLII), per Goepel JA, at para 81