Criminal Law Notebook

Defence Delay Under Jordan Framework

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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] or defence action that is illegitimate as it is not done to respond to the charges.[3]

Any delay that is the cause of the defence will not be used as time against the calculation of the presumptive ceiling.[4]

Defence counsel is prohibited from benefitting from its own conduct that causes delay.[5]

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.[6]

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.[7]

Courts can consider the timeliness of filing of defence applications.[8] As well as the number, strength, importance, and proximity to the Jordan ceiling.[9]

Inefficiencies in the defences approach to their applications will also be of possible attribution.[10]

Judges should not "second-guess" the steps taken by defence counsel in responding to the charges.[11]

Defence Delay That is Not to be Counted

The Jordan framework recognizes preparation as a necessary delay and does not go into the calculation.[12]

Any "actions legitimately taken to respond to the charges fall outside ... defence delay".[13]

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.[14]

Appellate Review

Attribution of defence delay is "highly discretionary" and so should be accorded deference.[15]

The process of according delay to one party or another is not given deference.[16] Efforts to expedite matters are determined on a standard of correctness.[17]

  1. ↑ R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 28
  2. ↑ Cody, ibid., at paras 28 and 30
  3. ↑ Cody, ibid., at para 30
  4. ↑ 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.")
  5. ↑ 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” ")
  6. ↑ R v Coulter, 2016 ONCA 704 (CanLII), per Gillese JA, at para 42
    Cody, supra, at paras 27, 30
  7. ↑ Cody, supra, at para 32 ("Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. ... Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.")
  8. ↑ Cody, supra, at para 32 ("The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.")
  9. ↑ Cody, supra, at para 32 ("The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.")
  10. ↑ Cody, supra, at para 32
  11. ↑ Cody, supra
    R v Mullen, 2018 ABQB 831 (CanLII), per Michalyshyn J, at para 47
  12. ↑ 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.",
  13. ↑ Cody, supra, at para 29
    Jordan, supra, at para 65 ("To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed.")
  14. ↑ R v Zikhali, 2019 ONCJ 24 (CanLII), at para 33
  15. ↑ Cody, supra, at para 31 ("The determination of whether defence conduct is legitimate is ... highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.")
  16. ↑ R v Jurkus, 2018 ONCA 489 (CanLII), per Fairburn JA, at paras 25 to 26
  17. ↑ R v Tummillo, 2018 MBCA 95 (CanLII), per Cameron JA, at para 53

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. ↑ Tummillo, supra - 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 Defence Delay

Defence delay concerns a various number of defence conduct. It encompasses "the decision to take a step, as well as the manner in which it is conducted".[1] It will include any conduct that is deemed not "legitimate" which will include conduct "designed to delay", shows "marked inefficiency" or "marked indifference towards defence delay".[2]

Incentivising Advancement

Courts are directed to incentivize counsel to move matter forward in order to eliminate the "culture of complacency".[3]

Attributing Illegitimate Actions

Illegitimate action, inaction or omissions will be defence-attributable delay.[4] This includes a failure of engaging in their duty to "collaborat[e] with the Crown" and "us[e] court time efficiently".[5]

What constitutes "illegitimate" does not need to rise to the level of "professional or ethical misconduct".[6]

Unreasonable Action of Counsel

Delay attributable to the defence in a Jordan analysis includes all "unreasonable actions" on the part of the defence.[7]

Unreasonable actions include:

  • last‑minute changes in counsel[8]
  • adjournments flowing from a lack of diligence[9]
Defence Assumed Diligent

Courts may consider "the level of diligence displayed by the accused" as a relevant factor.[10]

The defence's refusal to conceded uncontested matters is "fair game" to consider on whether defence cause delay.[11]

  1. ↑ R v Cody, [2017] 1 SCR 659, 2017 SCC 31 (CanLII), at para 32
  2. ↑ Cody, ibid., at para 32
  3. ↑ Jordan, supra, at paras 94 and 104
    R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 1
  4. ↑ Cody, supra, at para 33
  5. ↑ Cody, supra, at para 33
    Jordan, supra, at para 138
  6. ↑ Cody, supra, at para 35
  7. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ (5:4), at para 193
  8. ↑ Jordan, supra, at para 193
  9. ↑ Jordan, supra, at para 193
  10. ↑ Jordan, supra, at para 86
  11. ↑ 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...")

Lawyer-Client Events

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.[1]

Change of Counsel

Any actions that relate to the change of counsel will be attributed to defence delay.[2]

  1. ↑ R v Evans, 2019 ABCA 74 (CanLII), per curiam (3:0)(link pending), at paras 24 to 25
  2. ↑ Cody, supra, at para 40
    R v Teng, 2017 ONSC 568 (CanLII), at paras 63 to 69
    R v Chonkolay, 2017 ABQB 148 (CanLII), at paras 21 to 25
    R v Pelletier, 2016 BCSC 2486 (CanLII), at paras 29 to 30

Delay of Election and Plea

Intake Period

Under the pre-Jordan framekwork, intake period of two months for the purpose of retaining counsel, reviewing disclosure, and resolution meetings are considered typical.[1]

The presumptive ceiling takes into account an "intake period" which includes time to review disclosure, resolution meetings and retain counsel. It does not get removed from the delay period.[2]

Lawyers are not expected to be able to review the entirety of disclosure as soon as it arrives. It is expected that it will take in the range of 4 to 6 weeks.[3]

Legal Aid and Rowbotham Applications

The period required to seek a Rowbotham application or to seek the release of money for legal expenses is not attributable to defence as it is necessary to full answer and defence.[4] However, where the application for legal aid or Rowbotham counsel is delayed this will be attributable to defence.[5]

Trial Readiness

Where the Crown and Court are ready to proceed but the defence is not will be a delay attributable to the defence.[6] This does not include necessary "preparation time" for the defence.[7]

  1. ↑ R v Meisner, 2003 CanLII 49317 (ONSC), per Hill J, at paras 30 to 32 aff'd 2004 CanLII 30221 (ON CA)
  2. ↑ Cody, ibid., at para 29
    R v Gandhi, 2016 ONSC 5612 (CanLII), per Code J, at para 24
    R v McCready, 2017 ONCJ 15 (CanLII), per Hawke J, at para 35
    R v Luoma, 2016 ONCJ 670 (CanLII), per Schreck J, at para 22
  3. ↑ R v Regan, 2018 ABCA 55 (CanLII), at paras 61 to 62
    R v Taylor, 2017 ONSC 2263 (CanLII), per Gordon J
    R v McNab, 2016 SKQB 333 (CanLII), per McMurtry J, at paras 40 to 41
  4. ↑ R v S(DM), 2016 NBCA 71 (CanLII)
    R v Isaacs 2016 ONSC 6214 (CanLII), per Lemay J, at paras 88, 92
    R v Ny, 2016 ONSC 8031 (CanLII), per Fairburn J
  5. ↑ R v Sacoccia 2017 ONSC 2737 (CanLII)
    R v Paauw, 2017 ONSC 7394 (CanLII)
    R v R(D), 2017 ONSC 1770 (CanLII)
    R v McCully, 2016 NSPC 70 (CanLII), per Tax J
  6. ↑ Jordan, supra, at para 64 (" As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.")
    Coulter, supra, at para 44
  7. ↑ Jordan, supra, at para 65 ("To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. ... While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.")

Advancing to Trial Without Complete Disclosure

Defence cannot wait until they receive every last shred of relevant material before agreeing to move the matter forward to trial.[1]

Defence should proceed once they have "substantial dislosure".[2]

Defene are expected to have a "reasonable opportunity to review the essential aspects of the Crown case".[3] The necessary disclosure before advancing to trial should be those materials that are "pivotal in understanding the nature of the case, the proof and the material's impact on advising her client on issues such as the nature of the plea, mode of trial" and similar.[4] Failure to have an opportunity to review such material would be "irresponsible" and would waste judicial resources.[5]

The defence should not be permitted to generate delay by requesting evidence that is not relevant, even where the Crown agrees to disclose.[6]

Generally, defence should be equipped with sufficient disclosure to ensure efficiency at the pre-trial phase of proceedings.[7]

The availability of a preliminary inquiry transcript was considered crucial enough to the advancement of the matter to trial.[8]

  1. ↑ Regan, supra, at para 65 ("The accused cannot hold out for every last shred of disclosure before setting hearing dates: ... In some cases it is reasonable to expect defence counsel to book a trial or preliminary inquiry before they have had an opportunity to review all of the Crown’s disclosure.")
    R v Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 OR (3d) 161, at para 47
    R v NNM (2006), 2006 CanLII 14957 (ON CA), 209 OAC 331, per Juriansz JA, at para 37
    R v JEK, 2016 ABCA 171 (CanLII), at para 66
    Gandhi, supra, at paras 31 to 33
  2. ↑ Gandhi, supra, at paras 31 to 33 (refences the standard of "substantial disclosure")
  3. ↑ ''Regan, supra, at para 65 ("But defence counsel should not be expected to set a hearing date before they have a reasonable opportunity to review the essential aspects of the Crown’s case.")
  4. ↑ R v Vitalis, 2018 ONCJ 43 (CanLII), per O'Marra J, at para 41
  5. ↑ Vitalis, ibid., at para 42
    R v Mahenthiranathan, 2017 ONCJ 497 (CanLII), at paras 17, 31, 42
  6. ↑ NNM, supra, at para 37 ("A person charged with an offence should not be able to generate a basis for a s. 11(b) application by making a continuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them.")
  7. ↑ Jurkus, supra, at para 32
  8. ↑ R v King, 2018 NLCA 66 (CanLII), at paras 78 to 80, 106 to 107

Scheduling

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] This effectively overturns the pre-Jordan rule established by R v Godin which did not necessarily attribute delay to defence due to unavailability.[2]

However, there are some courts that maintain the rule from Godin still remains.[3]

  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. ↑ see R v Godin, 2009 SCC 26 (CanLII), at paras 21 to 23(complete citation pending)
    R v P(RM), 2018 ONSC 4117 (CanLII), at paras 44 to 45(complete citation pending)
    R v Ewanochko, 2018 MBPC 14 (CanLII), at para 37(complete citation pending)
    R v Grewal, 2018 ONCJ 108 (CanLII)(complete citation pending), at paras 14 to 16
    cf. R v Albinowski 2018 ONCA 1084 (CanLII), per Roberts JA(complete citation pending)
    and R v King, 2018 NLCA 66 (CanLII), at para 108
  3. ↑ R v Ashraf 2016 ONCJ 584 (CanLII)
    R v Gasana, 2016 ONCJ 724 (CanLII)
    R v Bardsley, 2017 ONCJ 42 (CanLII), at para 40
    R v Sepka, 2017 BCPC 356 (CanLII), at para 46
    R v Wu, 2017 BCSC 2373 (CanLII), at para 62
    R v Roberts, 2018 ONSC 545 (CanLII), at para 92
    R v Akumu, 2017 BCSC 896 (CanLII), at para 114

Defence 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.[1]

Frivolous Application

Any frivolous application will be delay attributable to the defence.[2]

  1. ↑ e.g. R v King (No. 5), 2017 CanLII 15296 (NL SCTD), per Marshall J, at para 53
  2. ↑ Coulter, supra, at para 44
    Jordan, supra, at para 63 ("Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.")

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.[1] The court should not simply question whether the petitioning accused caused delay or not.[2]

The approach on such cases should be "individualized".[3]

The main question is whether it is in the "interest of justice" to have matters advanced jointly.[4] Where the interests of justice are no longer being served, the Crown is expected to mitigate delay caused by co-accused matters where one co-accused is being "held hostage" by the delay caused by another.[5]

  1. ↑ 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)
  2. ↑ Vassell, ibid., at para 6("Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; ")
  3. ↑ Gopie, supra, at para 128 ( "an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused")
  4. ↑ R v Albinowski 2018 ONCA 1084 (CanLII)(complete citation pending), at paras 36 to 39
    Gopie, supra, at para 171
    R v Masasseri 2016 ONCA 26, at para 323
  5. ↑ R v Albinowski 2018 ONCA 1084 (CanLII)(complete citation pending), at paras 39
    Vassell, supra, at para 7
    see Joinder and Severance of Charges

Defence Efforts to Bring the Matter to Trial

It is not enough for defence counsel to make "token efforts" on the record to seek early trial dates.[1]

Courts may consider whether the defence have acted with diligence in bringing the matter to trial.[2] This would be with a view to:[3]

  • whether counsel raised the issue of delay;
  • whether counsel took active steps to move the matter forward 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 Jordan, 2016 SCC 27 (CanLII)(complete citation pending), at para 85
  2. ↑ R v Summerfield, 2016 MBQB 241 (CanLII), per Edmond J
    R v Amyot and Emslie, 2016 MBQB 186(*no CanLII links)
  3. ↑ Summerfield, supra, at para 38

Morin Framework (Pre-Jordan, 2016 SCC 27)

See Also

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