Defence Delay Under Jordan Framework

From Criminal Law Notebook

General Principles

The second step of the Jordan framework concerns deduction of time due to defence-caused delay.[1]This concerns any action or inaction that "solely or directly" caused the delay.[2]

Any delay that is the cause of the defence will not be used as time against the calculation of the presumptive ceiling.[3]

Defence counsel is prohibited from benefitting from its own conduct that causes delay.[4]

Defence delay takes one of two forms. Either it is a defence waiver or it is a delay caused by the conduct of the defence.[5]

The Court may consider both the defence's decision to take a particular step and the manner in which the particular step was taken to decide whether to attribute delay to defence.[6]

Courts can consider the timeliness of filing of defence applications.[7] As well as the number, strength, importance, and proximity to the Jordan ceiling.[8]

Inefficiencies in the defences approach to their applications will also be of possible attribution.[9]

Judges should not "second-guess" the steps taken by defence counsel in responding to the charges.[10]

Defence Delay That is Not to be Counted

The Jordan framework recognizes preparation as a necessary delay and does not go into the calculation.[11]

Any "actions legitimately taken to respond to the charges fall outside ... defence delay".[12]

It has been suggested that normally a 1.5 month benchmark should be sufficient time for defence to prepare for a summary conviction case when taking into account their other work.[13]

Appellate Review

Attribution of defence delay is "highly discretionary" and so should be accorded deference.[14]

  1. ↑ R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 28
  2. ↑ Cody, ibid., at para 28
  3. ↑ R v Jordan, [2016] 1 SCR 631, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 21 (“Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.")
  4. ↑ Jordan, supra, at para 60 ("The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” ")
  5. ↑ R v Coulter, 2016 ONCA 704 (CanLII), per Gillese JA, at para 42
    Cody, supra, at paras 27, 30
  6. ↑ Cody, supra, at para 32
  7. ↑ Cody, supra, at para 32
  8. ↑ Cody, supra, at para 32
  9. ↑ Cody, supra, at para 32
  10. ↑ Cody, supra
    R v Mullen, 2018 ABQB 831 (CanLII), per Michalyshyn J, at para 47
  11. ↑ Cody, supra, at para 29 ("this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case")
    Jordan, supra, at paras 65, also 53 and 83 ("defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.",
  12. ↑ Cody, supra, at para 29
    Jordan, supra, at para 65
  13. ↑ R v Zikhali, 2019 ONCJ 24 (CanLII), at para 33
  14. ↑ Cody, supra, at para 31

Defence Waiver of Delay

Any period of time that has been waived by the defence must be subtracted from the total time delayed.[1]

Waiver while not fully apprised by the circumstances of the court docket does not necessarily render the time deductable from the Jordan ceiling.[2]

Burden

The burden is on the crown to prove there has been a waiver of any delay rights.

Requirements

A waiver must be clear, unequivocal and with full knowledge of the right being waived.[3] It does not have to be explicit, however.[4]

An agreement as to a date does not amount to a waiver where the agreement is a "mere acquiescence to the inevitable".[5] The absence of any evidence that the "consents amount to acquiescence in the inevitable, the consents constitut[e] wavier or, as actions of the accused, were attributable to him".[6]

  1. ↑ R v Sharma, [1992] 1 SCR 814, 1992 CanLII 90 (SCC), per Sopinka J, at p. 191 (CCC)
    R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), per Sopinka J, at p. 15
  2. ↑ R v Tummillo, 2018 MBCA 95 (CanLII)(complete citation pending) - accused waived delay of trial conference even though the conference was double-booked with other matters.
  3. ↑ R v Jordan, 2016 SCC 27 (CanLII)(complete citation pending), at para 61
    R v Cody, 2017 SCC 31 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 27 ("A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal ... .")
    R v White, 1998 CanLII 13319 (NL CA), (1998), 160 Nfld. & P.E.I.R. 309 (N.L.C.A.), per Cameron JA, at para 10
    R v Richard, 1996 CanLII 185 (SCC), [1996] 3 SCR 525, per La Forest J
  4. ↑ Coulter, supra, at para 43 ("Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights ")
    Jordan, supra, at para 61
  5. ↑ R v Askov, [1990] 2 SCR 1199, 1990 CanLII 45 (SCC), per Cory J, at pp. 48l to 482 (CCC)
    Morin, supra, at p. l5 (CCC)
    R v Pusic, 1996 CanLII 8215 (ON SC), (1996), 30 O.R. (3d) 692 (Ont. Ct. Gen. Div.) (*no CanLII links) , at pp. 70l to 702
    R v Richards, 2012 SKCA 120 (CanLII), per Richards JA, at para 25
    R v Brassard, [1993] 4 SCR 287, 1993 CanLII 42 (SCC), per L'Heureux-Dube J, at p. 287, 288 (SCR) R v Nuosci, Nuosci, [1993] 4 SCR 283, 1993 CanLII 40 (SCC), per Sopkina J, at p. 284 (An “[a]greement to suggested dates cannot be characterized as acquiescing in the inevitable in the absence of evidence to that effect”)
  6. ↑ Brassard, ibid., at p. 287 (SCR)

Types of Delay

Unavailability of Defence Counsel

The dominant case law suggests that the unavailability of counsel when both court and Crown are available will be attributed to defence in most circumstances.[1]

Attributing Illegitimate Actions

Illegitimate action, inaction or omissions will be defence-attributable delay.[2] This includes a failure of engaging in their duty to "collaborat[e] with the Crown" and "us[e] court time efficiently".[3]

What constitutes "illegitimate" does not need to rise to the level of "professional or ethical misconduct".[4]

Unreasonable Action of Counsel

Delay attributable to the defence in a Jordan analysis includes all "unreasonable actions" on the part of the defence.[5]

Unreasonable actions include:

  • last‑minute changes in counsel[6]
  • adjournments flowing from a lack of diligence[7]

Courts may consider "the level of diligence displayed by the accused" as a relevant factor.[8]

The defence's refusal to conceded uncontested matters is "fair game" to consider on whether defence cause delay.[9]

Failure of Accused to Maintain Contact

The Court has the discretion to find that the failure of the accused to maintain contact with their counsel constitutes "illegitimate defence conduct" and will not be added to the delay calculation.[10]

Incentivising Advancement

Courts are directed to incentivize counsel to move matter forward in order to eliminate the "culture of complacency".[11]

Trial Readiness

Where the Crown and Court are ready to proceed but the defence is not will be a delay attributable to the defence.[12] This does not include necessary "preparation time" for the defence.[13]

Applications

Defence applications to seek out evidence to which the Crown had a McNeil duty to seek out would result in the time required to obtain the records would not be attributable to the defence.[14]

Frivolous Application

Any frivolous application will be delay attributable to the defence.[15]

Multiple Co-Accused

The delay caused by multiple co-accused should be taken as a "fact of life" and should be taken into account for what is a "reasonable" amount of time. One accused can prevent a co-accused from proceeding expeditiously. In such a case the court should look at whether the delayed accused took "proactive steps", including prompt disclosure review, pushing for case management, collaborate with Crown to streamline issues, make concessions, and make Crown and Court aware of delay problems.[16] The court should not simply question whether the petitioning accused caused delay or not.[17]

  1. ↑ R v Mullen, 2018 ABQB 831 (CanLII), per Michalyshyn J, at para 41
    R v RMP, 2018 ONSC 4117 (CanLII), per Bell J
    R v Mamouni, 2017 ABCA 347 (CanLII), per Watson JA
  2. ↑ Cody, supra, at para 33
  3. ↑ Cody, supra, at para 33
    Jordan, supra, at para 138
  4. ↑ Cody, supra, at para 35
  5. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ (5:4), at para 193
  6. ↑ Jordan, supra, at para 193
  7. ↑ Jordan, supra, at para 193
  8. ↑ Jordan, supra, at para 86
  9. ↑ R v Moreira, 2019 ONSC 2536(CanLII)(complete citation pending), at paras 28 to 29 ("At the preliminary inquiry, identity was not conceded until the Crown played video evidence. In addition, the defence originally indicated that all the Mr. Big witnesses were required to testify at the preliminary hearing. However, during the hearing, they specified that only two witnesses were required....these matters should have been conceded in advance of the hearing particularly after multiple judicial pre-trials had been held. I also agree that these matters are fair game when it comes to assessing defence-caused delay in s. 11(b) applications...")
  10. ↑ R v Evans, 2019 ABCA 74 (CanLII), per curiam (3:0)(link pending), at paras 24 to 25
  11. ↑ Jordan, supra, at paras 94 and 104
    R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 1
  12. ↑ Jordan, supra, at para 64
    Coulter, supra, at para 44
  13. ↑ Jordan, supra, at para 65
  14. ↑ e.g. R v King (No. 5), 2017 CanLII 15296 (NL SCTD), per Marshall J, at para 53
  15. ↑ Coulter, supra, at para 44
    Jordan, supra, at para 63
  16. ↑ R v Vassell, [2016] 1 SCR 625, 2016 SCC 26 (CanLII)(complete citation pending), at para 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. ... 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, ... it is [a case] 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.")
    R. v. Gopie, 2017 ONCA 728 (CanLII), 140 O.R. (3d) 171, at para 174(complete citation pending)
  17. ↑ Vassell, ibid., at para 6("Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; ")

Defence Efforts to Bring the Matter to Trial

Courts may consider whether the defence have acted with diligence in bringing the matter to trial.[1] This would be with a view to:[2]

  • whether counsel raised the issue of delay;
  • whether counsel took active steps to move the matter forwards expeditiously by inquiring on early trial dates;
  • whether counsel met in advance of hearings to streamline the process;
  • the seriousness of the charges
  • the prejudice they delay had on the evidence
  1. ↑ R v Summerfield, 2016 MBQB 241 (CanLII), per Edmond J
    R v Amyot and Emslie, 2016 MBQB 186(*no CanLII links)
  2. ↑ Summerfield, supra, at para 38


Morin Framework (Pre-Jordan, 2016 SCC 27)

See Also

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