View source for Extraordinary Circumstances in Jordan Delay Analysis

[[fr:Circonstances_extraordinaires_dans_l%27analyse_des_retards_en_Jordan]]
{{Currency2|January|2021}}
{{LevelZero}}{{HeaderDelay}}
==General Principles==
A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances."<ref>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|69}} ("Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.")<br>
</ref>

"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that:<ref>
{{ibid1|Jordan}}{{atL|gsds3|69}} ("Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.")
</ref>
# the delays are "reasonably unforeseen or reasonably unavoidable" and
# "Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

Generally, there are two categories of "extraordinary circumstances":
# discrete events or 
# particularly complex cases.

Analysis should always begin looking at discrete events before looking at complexity.<Ref>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|48}} ("The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system ...")
</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}}{{atL|gsds3|71}} ("It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.")<br>
</ref>

It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon."<ref>
{{ibid1|Jordan}}{{atL|gsds3|69}}<br>
</ref>

; Seriousness Not a Factor
The seriousness or gravity of the offence does not pay in the consideration for delay.<ref>
{{supra1|Jordan}}{{atL|gsds3|81}}<br>
</ref>

; Appellate Review
When considering findings with respect to the presence of extraordinary circumstances, the appellate court should show deference.<ref>
{{CanLIIRP|Rice|hqqdm|2018 QCCA 198 (CanLII)|44 CR (7th) 83}}{{perQCCA|Vauclair JA}}{{atL|hqqdm|33}}<br>
{{supra1|Jordan}}{{atsL|gsds3|65|}}, and {{atsL-np|gsds3|78| to 79}}<br>
{{supra1|Cody}}{{atL|h4bfk|31}}<br> 
</ref>

{{Reflist|2}}

==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."<ref>
{{CanLIIRP|Rice|hqqdm|2018 QCCA 198 (CanLII)|44 CR (7th) 83}}{{perQCCA|Vauclair JA}}{{atL|hqqdm|84}} ("Discrete events (l’événement distinct et exceptionnel), the expression used by the Supreme Court, are those that disturb the normal course of the matter and which no one, understood here as the prosecution and the justice system, could do anything to prevent")
</ref>

The Crown duty to mitigate is one of reasonableness not held to a "standard of perfection."<reF>
{{CanLIIR|Mavros|jc089|2020 ABCA 436 (CanLII)}}{{atL|jc089|30}}<bR>
RS, 2023 BCCA 148{{fix}} at para 38<br>
R v KC, 2022 ONCA 738 at para 65<Br>
Kelly v R, 2022 NBCA 46 at para 62<br>
</ref>

The discrete events category require that the developments be "unforeseeable and unavoidable."<ref>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|73}}<br>
</ref>
They must be events that "could not be reasonably mitigated by the Crown and the justice system."<ref>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|48}}
</ref>

The unavailability of witnesses may qualify as a discrete exceptional circumstances.<REf>
R v RS, 2023 BCCA 148{{fix}}<br>
R v Vega Ramirez, 2019 BCCA 446<Br>
R v Mavros, 2020 ABCA 436<br>
</ref>

; 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."<ref>
{{ibid1|Jordan}}{{atL|gsds3|75}}
</ref>

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."<ref>
{{ibid1|Jordan}}{{atL|gsds3|75}} ("The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events ... . Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).")<br>
{{CanLIIRP|Zikhali|hx3t6|2019 ONCJ 24 (CanLII)|428 CRR (2d) 44}}{{perONCJ|Burstein J}}{{atL|hx3t6|17}}
</ref>
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."<ref>
{{ibid1|Jordan}}{{atL|gsds3|70}}<br>
</ref>

The Crown and justice system must prioritize cases that are delayed due to discrete events.<ref>
{{ibid1|Jordan}}{{atL|gsds3|75}} <br>
{{supra1|Rice}}{{atL|hqqdm|85}}<br>
</ref>

Reasonable step do not have to be successful, they only need to be responsive to avoid delay.<ref>
{{ibid1|Jordan}}{{atL|gsds3|70}}<br>
</ref>

; Calculating "Cascading Delay"
Where delays attributable to uncontrollable discrete events such as an illness that results in "cascading delay" has been treated as being subtracted from the total delay.<ref>
{{CanLIIRx|Norton|j1bsx|2019 BCSC 1078 (CanLII)}}{{AtL|j1bsx|36}} ("The general proposition I extract from the foregoing authorities is that the entire cascading delay due to an adjournment caused by the illness of counsel ought to be subtracted from the total delay in the absence of a finding that the Crown or the system could reasonably have mitigated a portion of the delay occasioned by the discrete exceptional event.")<br>
{{CanLIIRP|Baron|h6ht0|2017 ONCA 772 (CanLII)|356 CCC (3d) 212}}{{perONCA|Trotter JA}}{{atL|h6ht0|50}} ("As a discrete event, I would also deduct from the total delay the entire period of time between the second and third preliminary inquiry dates... . This was triggered by Houle’s illness, a matter completely beyond the Crown’s control, which caused the time protected for the second preliminary inquiry to be lost. As discussed below, under my discussion of the transitional exceptional circumstance, I agree with the application judge that it was reasonable for the Crown to continue against all three accused; the Crown was not required to sever the appellant as a form of mitigation for this unforeseen event.")<br>
{{CanLIIRx|Nazarek|hpf3r|2017 BCSC 2340 (CanLII)}}{{perBCSC|Watchuk J}}{{atL|hpf3r|135}} ("The unfortunate series of illnesses in this case are discrete events which are exceptional circumstances.  They were unforeseeable, and the events as well as their cascading delay must be subtracted from the net delay.  With counsel ill or in the hospital, there was nothing more that the Crown could do to move the case along.")<br>
{{CanLIIRP|Giles|gx04p|2017 BCSC 73 (CanLII)|374 CRR (2d) 157}}{{perBCSC|Ross J}}{{atsL|gx04p|186| to 187}}
</ref>

; Examples of Discrete Events
The judge's non-attendance has been classified as a "discrete event."<Ref>
{{CanLIIRx|Brooks|gxldv|2017 ONSC 1063 (CanLII)}}{{perONSC|Del Frate J}}{{AtL|gxldv|28}}
</ref>

The illness of counsel or witnesses will often be treated as a discrete event.<Ref>
{{supra1|Norton}}{{AtL|j1bsx|36}} ("The general proposition I extract from the foregoing authorities is that the entire cascading delay due to an adjournment caused by the illness of counsel ought to be subtracted from the total delay in the absence of a finding that the Crown or the system could reasonably have mitigated a portion of the delay occasioned by the discrete exceptional event.")<br>
{{supra1|Baron}}{{atL|h6ht0|50}} ("As a discrete event, I would also deduct from the total delay the entire period of time between the second and third preliminary inquiry dates... . This was triggered by Houle’s illness, a matter completely beyond the Crown’s control, which caused the time protected for the second preliminary inquiry to be lost.")<br>
{{supra1|Nazarek}}{{atL|hpf3r|135}} ("The unfortunate series of illnesses in this case are discrete events which are exceptional circumstances.  They were unforeseeable, and the events as well as their cascading delay must be subtracted from the net delay.  With counsel ill or in the hospital, there was nothing more that the Crown could do to move the case along.")<br>
</ref>

{{reflist|2}}
===Where "Reasonable Steps" Mitigation is Required===

; Recanting Witnesses
A witness who recants unexpectedly during trial will be a discrete event.<ref>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|73}}
</ref>
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.<ref>
{{CanLIIRx|Smythe|h35l2|2017 SKQB 86 (CanLII)}}{{perSKQB|McMurtry J}}{{atsL|h35l2|30| to 35}}<br>
</ref>

Similarly, a witness refuses to testify, that too will generally be considered a discrete event.<ref>
{{CanLIIRP|Tsega|h409g|2017 ONSC 3090 (CanLII)|139 WCB (2d) 92}}{{perONSC|Aitken J}}
</ref>

; 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."<ref>
{{CanLIIRx|Testroete|h6bxl|2017 NSPC 50 (CanLII)}}{{perNSPC|Tax J}}{{atL|h6bxl|150}}<br>
cf. {{CanLIIRx|Foroughi-Mobarakeh|h389w|2017 NSSC 100 (CanLII)}}{{perNSSC|Murray J}}{{atsL|h389w|57| to 64}}
</ref>

; 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.<ref>
e.g. {{supra1|Zikhali}}{{atL|hx3t6|38}} ("In the absence of any evidence to the contrary, I am satisfied that another Crown could have, and should have, been made available to take over the prosecution of Mr. Zikhali’s case on July 24, 2018.  If that had been done, at least 3 months of the 5-month rescheduling delay could have been avoided.")
</ref>

; Other Examples of "reasonable steps"
An example of reasonable steps include:
* seeking the assistance of the court;<ref>
{{ibid1|Jordan}}{{atL|gsds3|70}}<br></ref>
* seeking assistance of defence counsel to streamline evidence or issues for trial;<ref>
{{ibid1|Jordan}}{{atL|gsds3|70}}<br></ref>
* seeking severance where a co-accused is causing delay<ref>
{{CanLIIRP|Singh|gvg4n|2016 BCCA 427 (CanLII)|344 CCC (3d) 516}}{{perSCC|Goepel J}}
</ref>
* coordinate the pre-trial applications.<ref>
{{supra1|Jordan}}{{atL|gsds3|70}}<br></ref>

; 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.<ref>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|48}}
</ref>

{{reflist|2}}
===When "Discrete Events" Are Not Mitigatable===
Certain circumstances have been found to constitute discrete events, including:
* malfunction of court recording system.<ref>
{{CanLIIRx|Waboose|h4h5p|2017 ONSC 3862 (CanLII)}}{{perONSC|Warkentin J}}
</ref>
* a witness refusing to testify<ref>
{{CanLIIRP|Tsega|h409g|2017 ONSC 3090 (CanLII)|139 WCB (2d) 92}}{{perONSC|Aitken J}}
<br>
</ref>

There are circumstances that have been rejected as being discrete events:
* drafting errors in joint statement of fact<ref>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atsL|h4bfk|58| to 60}}
</ref>

; Medical
Personal or medical emergencies for the accused, counsel, judge, or jury member will usually be unavoidable discrete events.<ref>
{{CanLIIRP|Robert|hqd8p|2018 ONSC 545 (CanLII)|OJ No 732}}{{perONSC|Thomas J}}<br>
{{CanLIIRP|Giles|gx04p|2017 BCSC 73 (CanLII)|374 CRR (2d) 157}}{{perBCSC|Ross J}} (illness)<br>
{{CanLIIRx|Windibank|gxf29|2017 ONSC 855 (CanLII)}{{perONSC|Howard J}} (illness)<br>
{{CanLIIRx|Nazarek|hpf3r|2017 BCSC 2340 (CanLII)}}{{perBCSC|Watchuk J}} (illness)<br>
{{CanLIIRx|Chandroo|h50js|2017 QCCQ 8155 (CanLII)}}{{perQCCQ|Marchi J}} (illness)<br>
{{CanLIIRP|Herman|gxhkd|2017 BCSC 215 (CanLII)|BCJ No 270}}{{perBCSC|Davies J}} (Crown counsel injury)<br>
{{CanLIIRx|Lee|h50xt|2017 ONSC 4862 (CanLII)}}{{perONSC|Forestell J}}<br>
{{CanLIIRx|Sachro|h5k2d|2017 ONCJ 570 (CanLII)}}{{perONCJ|Felix J}}<br>
{{CanLIIRx|Cook|hrc5c|2017 QCCQ 9785 (CanLII)}}{{perQCCQ|Beauchemin J}}<br>
{{CanLIIRx|A(SS)|h1tn2|2017 BCPC 76 (CanLII)}}{{perBCPC|Meyers J}} (Crown counsel ill)<br>
{{CanLIIRx|Hertyk|h6bzn|2017 ONCJ 641 (CanLII)}}{{perONCJ|Band J}}<br>
{{CanLIIRx|Akumu|h5t49|2017 BCSC 896 (CanLII)}}{{perBCSC|Fisher J}}<br>
{{CanLIIRx|Charles|h093d|2017 QCCQ 1321 (CanLII)}}{{perQCCQ|Marchi J}} (defence counsel had car problems and did not make it to court on time)<br>
{{CanLIIRP|Coulter|gtw5r|2016 ONCA 704 (CanLII)|340 CCC (3d) 429}}{{perONCA|Gillese JA}}{{atsL|gtw5r|81| to 84}} (Crown counsel was in a car accident)<br>
</ref>

Illnesses<ref>
{{supra1|Giles}}{{atsL|gx04p|185| to 187}}<br>
{{supra1|Windibank}}{{atsL|gxf29|50| to 52}}<br>
{{supra1|Nararek}}{{atL|hpf3r|135}} ("The unfortunate series of illnesses in this case are discrete events which are exceptional circumstances.  They were unforeseeable, and the events as well as their cascading delay must be subtracted from the net delay.  With counsel ill or in the hospital, there was nothing more that the Crown could do to move the case along.")<br>
{{supra1|Chadroo}}{{atsL|h50js|38| to 39}}<br>
{{supra1|A(SS)}}{{atL|h1tn2|21}}<br>
</ref>
or an important medical conditions or procedures on any justice system participant will also be a discrete event.<ref>
{{CanLIIRx|Sachro|gtrwr|2016 ONCJ 570 (CanLII)}}{{perONCJ|Kwolek J}}{{atL|gtrwr|24}} (Caesarean operation)<br>
{{CanLIIRP|Curry|gsrfp|2016 BCSC 1435 (CanLII)|360 CRR (2d) 273}}<br>
{{CanLIIRx|Cook|hrc5c|2017 QCCQ 9785 (CanLII)}}{{perQCCQ|Beauchemin J}} (complainant medical issue)<br>
{{CanLIIRx|L(R)|gwqd4|2016 ONSC 8008 (CanLII)}}{{perONSC|Glithero J}}{{atsL|gwqd4|38| to 42}} (complainant's pregnancy, unexpected by the Crown)<br>
</ref>
As would a police officer witness on medical leave.<REf>
{{CanLIIRP|Gopie|h69tn|2017 ONCA 728 (CanLII)|356 CCC (3d) 36}}{{atsL|h69tn|163| to 164}}{{perONCA|Gillese JA}}
{{CanLIIRx|Hertyk|h6bzn|2017 ONCJ 641 (CanLII)}}{{perONCJ|Band J}}{{atL|h6bzn|25}} (shoulder injury of police officer)
</ref>

The condition can include non-participants such as emergencies of the family of the participant.<Ref>
{{CanLIIRP|Robert|hqd8p|2018 ONSC 545 (CanLII)|OJ No 732}}{{perONSC|Thomas J}}{{atL|hqd8p|97}} ("In this matter, counsel agree that disclosure to the co-accused, Tomlin, was delayed about a working week as Mr. Boonstra needed to be absent from work to attend to a family matter that clearly required his attention.  I agree that this is a perfect example of a discrete event contemplated by Jordan.  Although the matter was only adjourned three days from October 3 to October 6, 2016, by which time Mr. Boonstra had returned, I would allow a deduction of five days to take into account the Crown’s inability to prepare the disclosure.")<br>
{{CanLIIRx|Akumu|h5t49|2017 BCSC 896 (CanLII)}}{{perBCSC|Fisher J}}{{atsL|h5t49|108| to 109}} (juror's family medical emergency)
</ref>

The Court can take into account the particular circumstances and resources of the jurisdiction in order to determine if a reasonable alternative was available.<ref>
e.g. {{CanLIIRx|Brown|h4dhw|2017 NSPC 27 (CanLII)}}{{perNSPC|Scovil J}}{{atL|h4dhw|30}}
</ref>

; 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.<ref>
{{CanLIIRP|Truong|h3lfh|2017 BCSC 736 (CanLII)|BCJ No 845}}{{perBCSC|Kent J}}{{atsL|h3lfh|60| to 62}}
</ref>
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.<ref>
{{CanLIIRx|Eremenko|hsw4r|2018 BCSC 1138 (CanLII)}}{{atL|hsw4r|105}}
</ref>

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.<ref>
e.g. {{ibid1|Truong}}{{atL|h3lfh|68}} <br>
{{CanLIIRP|Cristoferi-Paolucci|gvkfx|2016 ONSC 6923 (CanLII)|371 CRR (2d) 86}}{{perONSC|Goldstein J}}{{atsL|gvkfx|19| to 24}} (failure to give notice under mistaken belief of Crown consent to application)
</ref>

; 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.<ref>
{{CanLIIRP|Millar|gv4pw|2016 BCSC 1887 (CanLII)|BCJ No 2144}}{{atL|gv4pw|164}} appealed on different grounds at {{CanLIIRP|Millar|j20mr|2019 BCCA 298 (CanLII)|1 CTC 182}}<br>
{{CanLIIRP|Bishop|gw0pc|2016 ONSC 7734 (CanLII)|OJ No 6366}}{{perONSC|Phillips J}}{{atL|h35l2|16}}<br>
{{CanLIIRx|Smythe|h35l2|2017 SKQB 86 (CanLII)}}{{atsL|h35l2|36| to 38}}<br>
</ref>
Difficulties in locating witnesses is a "common occurrence" in criminal courts.<ref>
{{ibid1|Smythe}}{{atL|h35l2|37}}
</ref>
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.<ref>
{{ibid1|Smythe}}{{atL|h35l2|37}}
</reF>
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.<ref>
{{ibid1|Smythe}}{{atL|h35l2|38}}
</ref>

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.<ref>
{{supra1|Bishop}}{{atL|h35l2|16}}
</reF>

; Late Emergence of New Witnesses
Where there is the discovery of a late-emerging cooperative witness, this can be considered an unavoidable discrete event.<Ref>
{{CanLIIRP|Jurkus|hsb9q|2018 ONCA 489 (CanLII)|363 CCC (3d) 246}}{{perONCA|Fairburn JA}} leave refused [2018] SCCA 325<br>
</ref>

; Difficulty Securing an Interpreter
The failure to arrange for an interpreter to attend for trial will not normally be a discrete event.<ref>
{{CanLIIRx|Paauw|gvsvp|2016 ONSC 7394 (CanLII)}}{{perONSC|Laliberte J}}<br>
{{CanLIIRx|Sinatra|gnf30|2016 ONCJ 101 (CanLII)}}{{perONCJ|Bourque J}}<br>
{{CanLIIRx|Nguyen|gw05x|2016 ONCJ 712 (CanLII)}}{{perONCJ|Campbell J}} (unavailability of vietnamese interpreter was found foreseeable)<br>
{{CanLIIRx|Khou|h310f|2016 ONCJ 865 (CanLII)}}<br>
</reF>

Under the pre-Jordan framework, the Crown had the responsibility to secure an interpreter for any given Cornw witness.<ref>
{{CanLIIRP|Askov|1fsrp|1990 CanLII 45 (SCC)|[1990] 2 SCR 1199}}{{perSCC|Cory J}}
</ref>

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.<ref>
{{supra1|Paauw}}{{atsL|gvsvp|48| to 51}}
</ref>

; Mistrial
Generally, a mistrial will not be foreseeable and so can be a discrete event.<ref>
e.g. {{CanLIIRP|Mallozzi|h5h73|2017 ONCA 644 (CanLII)|141 WCB (2d) 439}}{{perONCA|Benotto JA}}{{atsL|h5h73|41| to 42}}<br>
{{CanLIIRx|Wu|hphvq|2017 BCSC 2373 (CanLII)}}{{atsL|hphvq|83|}}, {{atsL-np|hphvq|90| to 91}}<br>
{{CanLIIRP|Chrishurajah|h4cs4|2017 BCSC 820 (CanLII)|BCWLD 4220}}{{perBCSC|Wedge J}}{{atsL|h4cs4|98| to 100}}<br>
{{CanLIIRx|Becket|h66hw|2017 BCSC 1116 (CanLII)}}{{perBCSC|Beames J}}<br>
</ref>
However, there is suggestion that certain mistrials may be foreseeable and therefore not a discrete event.<ref>
e.g. {{CanLIIRx|T(JH)|gxcs0|2016 BCSC 2382 (CanLII)}}{{perBCSC|Tindale J}}{{atsL|gxcs0|156| to 173}} (crown witness "blurted out" inadmissible bad character evidence)<br>
</ref>

{{reflist|2}}

=="Particularly Complex" Cases==
Consideration of a case's complexity is a "qualitative" assessment of the case "as a whole."<ref>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|64}}<br>
</ref>

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."<ref>
{{ibid1|Cody}}{{atL|h4bfk|64}}<br>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|77}}<br>
{{CanLIIRP|Manasseri|gtvtz|2016 ONCA 703 (CanLII)|344 CCC (3d) 281}}{{perONCA-H|Watt JA}}{{atL|gtvtz|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.")<br>
{{CanLIIRP|Rice|hqqdm|2018 QCCA 198 (CanLII)|44 CR (7th) 83}}{{perQCCA|Vauclair JA}}{{atsL|hqqdm|87| to 88}}
</ref>

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."<ref>
{{supra1|Cody}}{{atL|h4bfk|64}}<br>
</ref> 

A complex case is one that "requires an inordinate amount of time" or inordinate amount of preparation due to the evidence or issues involved.<ref>
{{CanLIIRx|Potter; Colpits|j528d|2020 NSCA 9 (CanLII)}}{{TheCourtNSCA}}{{atsL|j528d|369| to 377}}<br>
{{supra1|Cody}}{{atL|h4bfk|46}}
</ref>

; Ceiling Assumes Moderate Complexity
The setting of the presumptive ceilings already reflects "increased complexity of criminal cases since Morin"<ref>
{{CanLIIRP|Morin|1fsc6|1992 CanLII 89 (SCC)|[1992] 1 SCR 771}}{{perSCC-H|Sopinka J}}</ref> in many aspects including new offences, procedures, obligations and law.<ref>
{{supra1|Cody}}{{atL|h4bfk|63}}<br>
{{supra1|Jordan}}{{atsL|gsds3|42|}} and {{atsL-np|gsds3|53|}}<br>
</ref>
It is said that the ceilling reflects an already growing complexity of cases as the "long time to wait for justice."<ref>
{{supra1|Jordan}}{{atL|gsds3|57}}<br>
</reF>

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.<ref>
{{supra1|Rice}}{{atL|hqqdm|43}}<br>
{{supra1|Jordan}}{{atL|gsds3|56}} ("The public should expect that most can and should be resolved before reaching the ceilling")<br>
</ref>

; Factors Relating to Complexity
There are certain "hallmarks of particular complexity" to consider including:<ref>
{{supra1|Jordan}}{{atL|gsds3|77}}<br>
{{CanLIIRx|Jansen and Hall|h3w40|2017 ONSC 2954 (CanLII)}}{{perONSC|Sosna J}}{{atsL|h3w40|59| to 66}}<br>
</ref>
* Voluminous disclosure
* Number of Witnesses
* Proceedings Against Multiple Co-Accused and
* nature of the evidence, including:
** cross-border or international evidence/witnesses<ref>
{{CanLIIRP|Singh|gvg4n|2016 BCCA 427 (CanLII)|344 CCC (3d) 516}}{{perBCCA|Goepel JA}}{{atL|gvg4n|87}}
</ref>
** multiple languages and the use of interpreters<ref>
{{ibid1|Singh}}{{atL|gvg4n|87}}
</ref>
** numerous or complex expert witnesses
* Nature of the Issues, including
** number of charges
** number of pre-trial applications
** novel or complex litigation issues<Ref>
e.g. {{CanLIIRx|Mahaffy|hpx59|2018 ONSC 349 (CanLII)}}{{perONSC|Cornell J}}{{atL|hpx59|31}}
</ref>
** rarely applied laws;
** multi-party conspiracy allegations<ref>
{{ibid1|Singh}}{{atL|gvg4n|87}}
</ref>

Assessment of what constitutes a complexity for counsel is well within the expertise of the trial judge.<ref>
{{supra1|Jordan}}{{atL|gsds3|79}}
</ref>

The judge may also rely on the assertions of counsel as to the level of complexity.<ref>
e.g. {{CanLIIRP|Barron (Houle)|h6ht0|2017 ONCA 772 (CanLII)|356 CCC (3d) 212}}{{perONCA|Trotter JA}}{{atL|h6ht0|67}}<br>
{{CanLIIRP|Truong|h3lfh|2017 BCSC 736 (CanLII)|BCJ No 845}}{{perBCSC|Kent J}}{{atL|h3lfh|72}}<br>
{{CanLIIRP|Muhammed|htjgt|2018 ONSC 4463 (CanLII)|OJ No 4257}}{{perONSC|Trimble J}}{{atsL|htjgt|58| to 61}}<br>
</reF>
Similarly, the Crown may rely upon representations of the defence as to how complex they believe their case to be.<ref>
{{CanLIIRx|Pavao|hp52s|2017 ONSC 6873 (CanLII)}}{{perONSC|Dow J}}
</ref>

; 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.<ref>
{{supra1|Rice}}{{atL|hqqdm|96}}<br>
{{supra1|Jordan}}{{atL|gsds3|70}}<br>
</ref>
This primarily involves developing and following "a concrete plan to minimize the delay occasioned by such complexity."<ref>
{{supra1|Jordan}}{{atL|gsds3|79}}<br>
{{CanLIIRP|Saikaley|h3p4c|2017 ONCA 374 (CanLII)|348 CCC (3d) 290}}{{TheCourtONCA}}{{atL|h3p4c|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.")<br>
{{CanLIIRP|Picard|h5smx|2017 ONCA 692 (CanLII)|354 CCC (3d) 212}}{{perONCA|Rouleau JA}}<br>
</ref>
Failure to make and stick to a plan will mean that the exception cannot be relied upon.<ref>
{{supra1|Saikaley}}{{atL|h3p4c|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")<br>
</ref>

The judge must consider the steps taken and not taken by the Crown.<ref>
{{supra1|Jordan}}{{atL|gsds3|70}}<br>
{{supra1|Rice}}{{atL|hqqdm|96}}<br>
</ref>
Any exercise of discretion must "conform" to the accused s. 11(b) rights.<Ref>
{{supra1|Jordan}}{{atL|gsds3|79}}<br>
{{supra1|Saikaley}}{{atL|h3p4c|36}}<br>
</ref>

; 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.<ref>
e.g. {{CanLIIRx|McBride|h5t4b|2017 BCSC 1480 (CanLII)}}{{perBCSC|Betton J}}
</ref>

{{Reflist|2}}
===Voluminous disclosure===
"Voluminous disclosure" is a "hallmark of particularly complex cases" however it is "not automatically demonstrative of complexity."<ref>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|77}}<br>
{{CanLIIRP|Cody|h4bfk|2017 SCC 31 (CanLII)|[2017] 1 SCR 659}}{{TheCourtSCC}}{{atL|h4bfk|65}}<br>
</ref>

Evidence can include an inventory list of documents and number of pages of disclosure.<ref>
e.g. {{CanLIIRx|Jansen and Hall|h3w40|2017 ONSC 2954 (CanLII)}}{{perONSC|Sosna J}}{{atsL|h3w40|61| to 65}}<br>
</ref>

{{Reflist|2}}

===Multiple Co-Accused===
{{seealso|Joinder and Severance of Charges}}
Proceeding against several co-accused together may "enhance or contribute" to the complexity of a case.<ref>
{{CanLIIRP|Manasseri|gtvtz|2016 ONCA 703 (CanLII)|344 CCC (3d) 281}}{{perONCA-H|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")<br>
{{CanLIIRP|Jordan|gsds3|2016 SCC 27 (CanLII)|[2016] 1 SCR 631}}{{perSCC-H|Moldaver, Karakatsanis and Brown JJ}}{{atL|gsds3|77}}
</ref>
However, multiple co-accused ''per se'' does not render the case particularly complex.<ref>
{{CanLIIRP|DA|hq4sf|2018 ONCA 96 (CanLII)|402 CRR (2d) 303}}{{perONCA|Paciocco JA}}<br>
{{CanLIIRx|Albadry|hqj5j|2018 ONCJ 114 (CanLII)}}{{perONCJ|Doody J}}{{atsL|hqj5j|27| to 28}}<br>
{{CanLIIRx|Kranc|hqf25|2018 BCPC 26 (CanLII)}}{{perBCPC|Janzen J}}{{atL|hqf25|64}}<br>
{{CanLIIRx|Thomson|hnxbd|2017 BCSC 2151 (CanLII)}}{{perBCSC|Church J}}{{atsL|hnxbd|55| to 57}}<br>
{{CanLIIRx|S(C)|hp4kc|2017 ONCJ 828 (CanLII)}}{{perONCJ|McArthur J}}{{atL|hp4kc|28}} ("Although this case is one generally regarded as taking longer in the Provincial Court in this jurisdiction, it is not a particularly complex case in the sense under R v Jordan. It neither has the hallmarks of a particularly complex case as referred to in paragraph 77 of R v Jordan. Disclosure was not voluminous, there are not a large number of witnesses, there is no expert evidence, no charges over a long period of time, no complicated issues beyond the factual determinations to be made from the evidence. The fact that the defendants were jointly charged does not in any way take this case into complexity.")<br>
</ref>

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.<ref>
{{CanLIIRP|Vassell|gs9r9|2016 SCC 26 (CanLII)|[2016] 1 SCR 625}}{{perSCC-H|Moldaver J}}{{atL|gs9r9|6}} ("In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial. But here, it was clear from the outset that the delay caused by the various co-accused not only prevented the Crown’s case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted. Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; rather, it is one in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the Court aware of s. 11(b) problems, and at all times sought early dates.")<br>
</ref>

There will always be scheduling conflicts between the co-accused that result in greater delay of all parties.<ref>
{{CanLIIRx|Dhaliwal|hp3vq|2017 BCSC 2215 (CanLII)}}{{perBCSC|Ross J}}{{atL|hp3vq|26}}<br>
</ref>

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.<ref>
{{ibid1|Vassell}}{{atL|gs9r9|7}}<br>
</ref>

However, severance cannot be seen as a panacea when delay arises from a multi-party indictment.<ref>
{{CanLIIRP|Singh|gvg4n|2016 BCCA 427 (CanLII)|344 CCC (3d) 516}}{{perBCCA|Goepel JA}}{{atL|gvg4n|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.")<br>
</ref>

{{reflist|2}}

===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.<ref>
{{CanLIIRx|Anugaa|hq4sb|2018 NUCJ 2 (CanLII)}}{{perNUCJ|Bychok J}}<br>
{{CanLIIRx|IN|hrctf|2018 NUCJ 9 (CanLII)}}{{perNUCJ|Bychok J}}<br>
</ref>

{{reflist|2}}

==See Also==
* [[Right to a Trial Within a Reasonable Time]]