Holding back the hands of Jordan

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John Baron was charged with 28 counts of fraud. He was convicted and sentenced to 6 years jail. Prior to trial Baron brought an application to stay the proceedings based on a violation of s11(b), unreasonable delay. The trial judge dismissed the application. Baron appealed. His appeal was dismissed: 2017 ONCA 772.

Baron was charged with two others, McGill and Houle. In all 59.5 months passed before the conclusion of their trial. The trial judge found no waiver nor any delay attributable to the Crown. The total institutional delay was 18.5 months (8 months in OCJ and 10.5 months in SCJ). The remainder, bulk of the delay, was almost entirely neutral time under Morin – 6 months was attributed to defence delay.

In reviewing the ruling and impugned delay the Court of Appeal agreed with the trial judge that there was no violation of s11(b). A few points are particularly notable.

First, the court agreed that time arising from the removal of counsel was attributable to defence delay. The court further did not entirely reject the position of the Crown that the delay from the removal of counsel to the start of the second dates for the preliminary inquiry should be defence delay – a position which might in other circumstances be accepted. The court explained:

I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel’s removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors. [@48].

Second, delay occasioned by the co-accused was treated as neutral by the applicaton judge under the transitional exception and thus justified delay beyond the ceiling. The Court of Appeal agreed:

Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky2017 ONCA 273 (CanLII), 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.
This case is not like R. v. Vassell2016 SCC 26 (CanLII), [2016] 1 S.C.R. 625, in which Mr. Vassell’s persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.
Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused. [@62-64].

Third, on the issue of complexity the Court of Appeal rejected the notion that because the trial only took 8 days it was not complex – this approach to complexity is mistaken and has been rejected:

In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:
A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.
[@71].

Fourth, the court noted that the transitional exception was created to avoid the very result sought by Baron – a stay relying on a new regime where the parties were proceeding reasonably under the law that existed before Jordan. In support the Court of Appeal cited the following passage from Pyrek2017 ONCA 476 @32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

Baron is another case in a recent string of cases where the Court of Appeal has rejected s11(b) claims in transitional cases. It is a welcome and principled approach to Jordan.

DM

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