r v. J, 2020 QCCA 666

Unofficial English Translation of the Judgment of the Court R. c. J.F. 2020 QCCA 666 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007018-193 (500-01-051551-114) DATE: June 3, 2020 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. J…F… RESPONDENT – Accused CORRECTED JUDGMENT PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE , THE COURT MAKES AN ORDER THAT ANY INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS LISTED IN THE COMPLAINT SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY. [ 1 ] A clerical error was made in paragraph 21 of the reasons of Levesque, J.A. The motion for a stay of proceedings due to unreasonable delay was, in fact, filed on December 28, 2018.

FOR THESE REASONS, THE COURT: [ 2 ] AMENDS paragraph 21 of the judgment rendered on May 25, 2020 so it reads as follows: [21] On December 28, 2018, the respondent filed a motion for a stay of proceedings due to unreasonable delay. JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Justin Tremblay Mtre Nicolas Abran Director of Criminal and Penal Prosecutions For the Appellant Mtre Diego Gramajo Diego Gramajo, Attorney For the Respondent Date of hearing: February 26, 2020

R. c. J.F. 2020 QCCA 666 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007018-193 (500-01-051551-114) DATE: MAY 25, 2020 _____________________________________________________________________ CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. _____________________________________________________________________ HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. J… F… RESPONDENT – Accused _____________________________________________________________________ JUDGMENT ______________________________________________________________________ PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE , THE COURT MAKES AN ORDER THAT ANY INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS LISTED IN THE COMPLAINT SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY. [1] The appellant appeals from a judgment of the Court of Québec, District of Montreal, rendered on February 25, 2019, and corrected on March 15, 2019 (the Honourable Joëlle Roy), that ordered a stay of proceedings due to unreasonable delay. [1] [2] For the reasons of Levesque, J.A., with which Hogue and Sansfaçon, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal. _________ _________________________ JACQUES J.

LEVESQUE, J.A. _________ ______ ___________________ MARIE-JOSÉE HOGUE, J.A. ________________________________ __ STÉPHANE SANSFAÇON, J.A. Mtre Justin Tremblay Mtre Nicolas Abran Director of Criminal and Penal Prosecutions For the Appellant Mtre Diego Gramajo Diego Gramajo, attorney For the Respondent Date of hearing: February 26, 2020

______________________________________________________________________ REASONS OF LEVESQUE, J.A. ___________________________________________________________________ [ 4 ] The appellant appeals from a judgment rendered on February 25, 2019, and corrected on March 15, 2019, by the Court of Québec, District of Montreal (the Honourable Joëlle Roy), that found that the respondent’s right to be tried within a reasonable time had been violated and therefore ordered a stay of proceedings. [2] [ 5 ] At the end of a trial that stretched out over five years, the respondent was acquitted of various charges of a sexual nature.

Following an appeal by the Crown, however, this Court ordered a new trial due to errors of law in the judgment. [3] The delay between that order and the anticipated end of the new trial was 10 months and 5 days. [ 6 ] In some ways, this appeal adds a new page to the history of judicial

interpretation of the principles underlying the application of s. 11(

b) of the Canadian Charter of Rights and Freedoms [4] in light of the implementation of Jordan . [5] It raises the question of which analytical framework applies to the right to be tried within a reasonable time when a new trial has been ordered. [ 7 ] The appellant’s main argument is that once a new trial has been ordered, the delays from the first trial cannot be considered under the Jordan analytical framework. It is of the view that the trial judge erred when she did not consider only the delays in the second trial.

Accordingly, it asks for the order staying the proceedings to be quashed. [ 8 ] For the following reasons, I would dismiss the appeal and uphold the order to stay the proceedings, but for different reasons. 1. Background of the case (

a) First trial [ 9 ] On January 4, 2010, a complaint was filed against the respondent that concerned sexual acts he allegedly perpetrated against the complainant between 1986 and 2001. [ 10 ] On January 19, 2010, the complainant gave both a video and a written statement at the police station. [ 11 ] On February 8, 2011, the respondent was indicted on several counts for sexual offences. [ 12 ] On March 28, 2012, the parties proceeded with the preliminary inquiry. The respondent re-elected to be tried before the Court of Québec. [ 13 ] On December 3, 2013, the trial began.

It was scheduled for two days. [ 14 ] On December 4, 2013, the appellant announced a voir dire on the admissibility into evidence of the complainant’s video statement. Because this voir dire was longer than anticipated, the trial was postponed to another date. [ 15 ] On October 20, 2014, the trial resumed. [ 16 ] On October 24, 2014, the judge took the voir dire under advisement. Judgment was not rendered until May 8, 2015, when the statement was declared to be inadmissible. The trial resumed and, after closing arguments, the judge took the case under advisement on May 16, 2016.

One therefore notes that the delay between the indictment and the end of closing arguments was 1,924 days, or 63 months and 8 days. [ 17 ] On July 8, 2016, while the case was under advisement, the Supreme Court rendered Jordan. [6] [ 18 ] On February 10, 2017, the verdict was rendered, acquitting the respondent. The total delay between the indictment and the verdict was 2,194 days, or 72 months and 2 days. (

b) Second trial [ 19 ] On June 13, 2018, this Court ordered a new trial because the trial judge had relied on stereotypes and prejudices to analyze the complainant’s credibility. [7] [ 20 ] On October 15, 2018, the parties agreed on the dates for the second trial, which they estimated should unfold over 10 days. The trial was anticipated to end on May 31, 2019, 11 months after the order for a new trial. [ 21 ] On December 28, 2019, the respondent filed a motion for a stay of proceedings due to unreasonable delay. [ 22 ] On January 14, 2019, the parties were able to move the trial date forward.

The trial was now anticipated to end on April 18, 2019. The total delay between the order for a new trial and the anticipated end of that trial was 309 days, or 10 months and 5 days. [ 23 ] On February 5, 2019, the respondent presented a motion for a stay of proceedings. That was when, for the first time since February 8, 2011, he really raised the violation of his right to be tried within a reasonable time. [ 24 ] On February 25, 2019, the trial judge rendered judgment. She granted the motion and ordered a stay of proceedings. 2. The trial judgment

[ 25 ] The judge was of the view that the respondent never waived his right to be tried within a reasonable time. [8] She also refused to subscribe to the appellant’s position that it is the abuse of process doctrine under s. 7 of the Charter that applies, not s. 11( b ) . [9] [ 26 ] She noted that, for the first trial, the delay between the indictment and the acquittal was 72 months and 2 days. [10] She was referring to the total delay, because, as she pointed out, according to the respondent, the net delay was 70 months and 25 days. [11] I will revisit this in my analysis. [ 27 ] She correctly rejected the respondent’s argument that pre-charge delays and delays on appeal should be taken into account.

The case law is clear. They are not included in the calculation. [12] [ 28 ] The trial judge, however, chose to include the delays caused by the two periods of deliberation in the calculation. The first concerned the time required to render judgment on the voir dire on the admissibility into evidence of a video statement. [13] The second concerned the time taken by the judge to render the verdict of acquittal, which was over eight months.

She stated that she was of the view that because the respondent was charged until the verdict, the time taken for this deliberation must be included when calculating the delays. [14] [ 29 ] The judge then considered the appellant’s argument that only the time for the second trial should be considered, but she rejected it because she concluded that the constitutional protection under s. 11(

b) of the Charter covers any period during which an individual is charged. [15] She therefore favoured [ translation ] “a global and contextual assessment of the delays”. [16] [ 30 ] Accordingly, the judge concluded that [ translation ] “the delays in first instance are clearly unreasonable, so they cannot be ignored”. [17] She added that [ translation ] “to remove the delays for the first trial from any overall calculation of delays and of the conditions that led to them would be

an act of complacency.” [18] [ 31 ] Finally, she noted that the respondent’s right to be tried within a reasonable time had been violated and ordered a stay of proceedings. 3. Issue in dispute [ 32 ] Although it involves a rather complex analysis, the issue raised in this appeal is specific: in light of the principles that emerged from Jordan , what analytical framework should be applied to the right to be tried within a reasonable time when there is an order for a new trial? 4.

Preliminary remark: characterization of delays [ 33 ] In my view, before addressing the issue on the merits, it is relevant to consider certain delays that were included in the analytical framework used by the trial judge. [ 34 ] The judge concluded that the net delay was 72 months and 2 days.

To arrive at this number, she chose to include the verdict deliberation time, correctly [19] omitting the pre-charge delays and those incurred by the Crown’s appeal. [20] She appears, however, to have failed to consider the respondent’s admission acknowledging the need to deduct 39 days due to delays attributable to the defence or discrete events. [ 35 ] The trial judge, in agreement with the respondent’s argument, concluded [21] that, under Jordan , the verdict deliberation time (270 days, or 8 months and 27 days) had to be included in the calculations. [ 36 ] The judge was right to state that the respondent was still protected by s. 11(

b) during deliberations on the verdict. However, she erred in relying on Allie c. R. [22] to include that delay in the Jordan analytical framework. Indeed, in Rice , our colleague Vauclair, J.A. stated that [ translation ] “the total delay is calculated from the laying of charges until the actual or anticipated end of the trial … which is the time predicted by the parties to complete the evidence and arguments …”. [23] [ 37 ] Modaver, J., writing for the majority of the Supreme Court, confirmed this

interpretation in a recent judgment, R. v. K.G.K .: [50] In sum, properly construed, Jordan did not resolve the issue of how to determine whether an accused’s right to be tried within a reasonable time under s. 11 (

b) has been infringed by delay attributable to verdict deliberation time. As I have said, the presumptive ceilings set out in Jordan only apply until the actual or anticipated end of the evidence and argument at trial, and no further . This is consistent with the design of Jordan and it avoids the serious practical problems that would arise if the ceilings were extended to include verdict deliberation time.

Put simply, the presumptive ceilings in Jordan do not provide an appropriate yardstick against which the reasonableness of delay attributable to verdict deliberation time may be measured . [24] [Emphasis added] [ 38 ] In that judgment, the Supreme Court did not set aside the possibility that a verdict deliberation time may be unreasonable.

Modaver, J. proposed a distinct way of considering this delay, adding: [54] In my view, when assessing whether an accused person’s right to be tried within a reasonable time has been infringed by reason of delay occasioned by verdict deliberation time, the question to be asked is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances . [25] [Emphasis added] [ 39 ] However, Moldaver, J. added that there is a “presumption of judicial integrity” according to which a verdict deliberation time is presumed to be reasonable: [56] As I will elaborate, the presumption of judicial integrity operates in this context to create a presumption that the trial judge took no

longer than reasonably necessary to arrive at the verdict . Specifically, the trial judge should be presumed to have struck a reasonable balance between the need for timeliness and trial fairness considerations — which take on a different character once the evidence and argument at trial have concluded — as well as the practical constraints that judges face. The burden lies on the accused to rebut this presumption by explaining why, in all the circumstances of the case, the verdict deliberation time was markedly longer than it reasonably should have been.

Where the accused meets that burden in a particular case, I hasten to add that, while significant, this finding should not be taken as casting doubt on the judge’s overall competence or professionalism. [26] [Emphasis added] [ 40 ] He concluded that, in the context of that case, and despite a verdict deliberation time of 9 months in a case that was of minimal to modest complexity, the accused had been unable to rebut the presumption of judicial integrity. [27] [ 41 ] In the case at hand, the delay incurred to render the verdict was 8 months and 27 days. It is indeed a long time.

It is not relevant, however, to determine whether this deliberation time markedly exceeded what it reasonably should have been in light of all the circumstances. [ 42 ] Indeed, despite the trial judge’s error in including these delays, and for the reasons I will give below, the delay between the filing of the charges and the end of the arguments largely exceeds the 30-month ceiling established in Jordan .

Because a stay of proceedings is already necessary for this reason, it does not appear essential to examine the reasonableness of the verdict deliberation time under the new analytical framework put forward by the Supreme Court in K.G.K . 5. Computing delays once a new trial has been ordered [ 43 ] It must now be determined how the delays incurred following an order for a new trial, as is the case here, should be computed, in light of the principles that emerge from the body of jurisprudence that has developed following Jordan . 5.1 The parties’ arguments (

a) The appellant [ 44 ] The appellant argues that the second trial resets the “ Jordan clock” back to zero, so the new starting point for analyzing the delay is the date on which the new trial was ordered. If that is so, the Jordan analytical framework should be used only to examine the delay for the second trial. In this case, the judge should have found that 10 months and 5 days was a reasonable delay because it was under the 18-month ceiling. It was up to the respondent to show that this delay was unreasonable.

The appellant concedes, however, that the second trial should conclude more quickly than the first one. [ 45 ] Based on the principles that emerge from R. v. Rabba , [28] the appellant argues that the respondent’s failure in the first trial to argue that his s. 11 (

b) right had been violated is a bar to his constitutional claim, first, because the first trial judge was best placed to judge the reasonableness of the delay, and second, because the respondent’s long silence must be considered a waiver of his right to complain about delays preceding the order for a new trial. The time required for the first trial need not be added or subtracted. In fact, it need not be considered at all. [ 46 ] The appellant does not completely eliminate the delay from the first trial from the conversation, however.

In its view, it may be considered from an abuse of process perspective under s. 7 of the Charter . It would then be a question of assessing whether holding several trials, even where the Crown has shown no blameworthy conduct, is abusive. (

b) The respondent [ 47 ] The respondent argues that the trial judge did not combine the delays for the first and second trials to come to her decision. He submits that a reading of the judge’s reasons as a whole reveals that the violation arises instead from the unreasonable delays of the first trial. [ 48 ] The respondent, being of the view that the principles in Rabba do not apply to new trials but only to appeals, argues that the trial judge was right to conclude that he had not waived his right to invoke the delays of the first trial. [ 49 ] His position is based on R. v.

Collins . [29] [ 50 ] Also, the respondent suggests that even if the Court were to uphold the appellant’s position, the delay of 10 months and 5 days between the order for a new trial and its anticipated end is unreasonable. 5.2 Remarks on the lateness of a motion for unreasonable delay [ 51 ] Before analyzing the merits of the issue, I think it is appropriate to first decide this argument submitted by the appellant. [ 52 ] While the appellant admits that the respondent benefits form the constitutional protection of s. 11(

b) as of the issuance of the warrant for his arrest in 2011, it argues that this protection must now apply only to the delay relating to the second trial. It rests its argument on the following: [translation] [70] … [T]he respondent complained about the passage of time only when his second trial was about to begin. The principles in Rabba , reiterated in Phillips and Martino , should apply a fortiori to an accused who fails to raise the issue of the passage of time either during his or her first trial or at the time of the appeal: By analogy with these judgments arising from Askov , the importance of the trial judge’s analysis of the facts in an application under s.

11(

b) of the Charter strongly weighs against an application raising the issue of being tried within a reasonable time for the first time on appeal. [71] What is more, in M.G. , this Court once again analyzed the principle established in Rabba and added that presenting a motion under s. 11(

b) of the Charter for the first time on appeal is fatal to an accused’s arguments. By syllogism, a motion for unreasonable delay presented for the first time during a second trial should concern only that second trial: The “fatal” flaw, therefore, is not presenting the motion for the first time after the conviction but presenting it on appeal without giving the trial judge the chance to rule on its merits. [72] In this case, the respondent’s very long silence should therefore be considered a waiver of his right to complain about delays preceding the order for a new trial.

To find otherwise would mean that the judge for the new trial, who is no better placed than an appellate court in this context, would have to examine the reasonableness of the delays for the first trial. [30] [References omitted] [ 53 ] The appellant has veered off course. I am of the view that, even today, there is nothing barring an accused from raising the delays incurred during his or her first trial.

The jurisprudence of the higher courts allowed it in the Morin [31] era and the judgments rendered in the Jordan era do not appear to prohibit it. [ 54 ] As Pacioccio, J., then of the Ontario Superior Court of Justice, wrote in a judgment rendered in the Morin era: [5] … Since an accused person facing a retrial will have experienced the adverse effects of the prosecution from the time the charge was initially laid, that entire period should, in my view, be taken into account. This is particularly so given that accused persons are not ordinarily responsible for the need for a second trial.

A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter. [32] [ 55 ] It is possible to analyze the reasonableness of the delays of each trial according to their own circumstances. This position has been explicitly accepted on a few occasions. For example, in R. v.

Crowchild , a judgment of the Court of Queen’s Bench of Alberta, the court wrote that “if the delay relative to each trial was reasonable in the circumstances that then existed , then the overall delay is also reasonable. To find otherwise would render the retrials futile”. [33] [ 56 ] In R. c.

Laurin , rendered by the Court of Québec, Desaulniers, J. adopted this position and concluded that it was necessary to [ translation ] “consider the first and second trials separately”. [34] [ 57 ] It seems reasonable to think that judgments that find that delays are reset to zero by an order for a new trial implicitly infer that the delays in the first trial were reasonable, since they consider only the delays incurred for the second trial. [ 58 ] Thus, in R. v.

JEV , the Court of Appeal of Alberta stated that “the constitutional clock should start running the moment a new trial is ordered; and that it should start running from zero at that time […]. Doing so is logical in the absence of any suggestion that the time it took to complete the original trial was unreasonable ”. [35] [ 59 ] I therefore agree with the appellant when it submits that the delays for the second trial should not be added to the delays for the first one but must instead be reset to zero as of the order for a new trial.

I cannot, however, agree that this order then bars an accused from raising a violation of s. 11(

b) for the delays incurred during the first trial. [ 60 ] Indeed, it would undoubtedly be unfair for an accused to be barred from presenting an initial motion on the sole ground that a violation was not raised in a timely manner. In Morin , the Supreme Court wrote that courts “must be careful not to subvert the principle that there is no legal obligation on the accused to assert [his or her] right”. [36] It is recognized, however, that the late presentation of a motion based on s. 11 (

b) generally justifies an inference that the accused was satisfied with the delays incurred up until then. On this subject, in the same judgment, the Supreme Court recalled that “[i]naction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay”. [37] [ 61 ] I would therefore reject the appellant’s argument based on Phillips , [38] Rabba , [39] and Warring , [40] whereby the respondent’s very long silence in this case should be considered to be a waiver of his right to complain about the delays preceding the order for a new trial. [ 62 ] Those cases concerned situations where the accused raised a violation of s. 11 (

b) for the first time on appeal. As our colleague Mainville, J.A. explained in Philips c. R .: [ translation ] [19] Leave to present a new ground on appeal, including a constitutional argument, can be granted only if there is sufficient evidence in the record to make the findings of fact required to properly decide the matter. Thus, when an in-depth consideration of the new constitutional grounds cannot be carried out due to a lack of evidence, leave will generally be refused.

In particular, a new ground should not be considered on appeal if it would cause the other party prejudice by making it impossible to respond properly since it did not have the chance to present evidence at trial concerning the new ground raised. … [25] Considerations related to the sufficiency of the evidence in an appellate record are particularly important when the Court must draw conclusions of fact to decide a new ground of appeal based on s. 11(

b) of the Charter . […] [41]

[Emphasis added; reference omitted] [63] This is also the perspective from which Rabba and Warring should be analyzed. In M.G. c. R.,[42] this Court recently consideredthe scope of these two judgments: [translation] [41] As for the judgments raised by the Crown, it is appropriate to put them in context. Rabba, rendered by the Court of Appeal forOntario in 1991, concerns a motion for unreasonable delay presented for the first time on appeal.

The fact that the motion was presentedon appeal allows for a better understanding of the scope of the remarks made by Arbour J.A., as she then was, when she wrote that afailure to present the motion at trial is fatal and is tantamount to the accused waiving his or her constitutional right: [original in english] In my view, the failure to move for a stay of proceedings, either before trial or at trial, would, in most cases, be fatal. The failure to movefor a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(

b) of the Charter. To holdotherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or herown motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time. [42] The “fatal” failure, therefore, is not that of presenting the motion for the first time after the conviction, but presenting it on appealwithout having given the trial judge the chance to rule on its merits.

That is not the case here. [43] The Crown relies on the following remarks of the Court of Appeal of Alberta in Warring to infer that the appellant waived hisconstitutional right by presenting his motion after the conviction: [original in english] [11] The appellant failed to properly assert his 11(

b) rights on a timely basis. The record clearly establishes that the appellant sat on theserights until after he was convicted […]. We find support in this view in R. v. Rabba. [44] The Court of Appeal of Alberta did not expressly decide that the late presentation of the motion automatically resulted in theassumption that the accused had waived his constitutional right.

Rather, the Court accepted a certain number of the trial judge’s findingsof fact based on the circumstances as a whole to infer that the accused had waived all the delays. […] [45] In assessing the circumstances as a whole, the trial judge accepted the presentation date of the motion as one factor among others[…]. [49] The Crown is wrong to argue that the late presentation of the motion after the conviction is sufficient in itself to infer that theaccused has waived his constitutional right.[43] [Emphasis added; references omitted] [64] This Court’s case law therefore appears to establish that the late presentation of a motion to stay proceedings due to unreasonabledelay cannot in itself be tantamount to a waiver of the accused’s constitutional right.

It is not a clear and unequivocal waiver.[44] [65] I believe it is appropriate to note that in cases where it is necessary to assess the prejudice – that is, under a transitionalexceptional circumstance – [translation] “the late presentation of the motion is nevertheless a relevant factor to assess the real prejudicesuffered by the accused due to delay”.[45] In M.G. c. R., this Court added that: [translation] [85] In a Morin analysis, it is possible to infer that a prolonged delay causes prejudice to the accused.

Yet, the court must take intoaccount the accused’s conduct that does not correspond to a wish to be tried quickly to evaluate his prejudice. Thus, conduct of anaccused that is not tantamount to a waiver may nevertheless be symptomatic of a lack of actual prejudice. The absence of eagerness isconsequently a relevant factor for assessing whether transitional exceptional circumstances apply because the parties reasonably reliedon the law as it previously existed.[46] [Emphasis added] [66] This is why, in R. v.

Neidig,[47] a case where the accused was being tried a second time, the British Columbia Court of Appealconcluded that the right to be tried in a reasonable time was not violated during the first trial. The Court pointed out that the accused hadhad the opportunity to raise this violation during his first trial; he had in fact raised a violation of s. 7 of the Charter, but not s. 11(b). Itadded that, but for the delays attributable to the defence, the trial would have unfolded reasonably, within the ceiling established byJordan: [112] Turning to the merits of this ground, in my view it is not open to Mr.

Neidig to seek a stay on the basis that his first trial wasnot completed within a reasonable time. That issue could have been raised at that trial. […] [113] Given a stay is the minimum remedy for unreasonable delay (R. v. Rahey, (SCC), [1987] 1 S.C.R. 588 at615), it is noteworthy that Mr. Neidig sought a stay at the first trial based on a breach of s. 7 of the Charter but did not seek a stay basedon a breach of s. 11(b). This indicates to me that he was content with the pace of those proceedings. [114] It is a reasonable inference that Mr.

Robertson’s unavailability, requests for adjournments, and underestimation of how much

time was needed for trial were factors in the decision not to raise delay at the first trial. Indeed, I think it likely that had Mr. Neidig’s arraignment proceeded on December 14, 2011, the first trial would have been completed within the 18-month presumptive ceiling in Jordan . [48] [Emphasis added] [ 67 ] It is therefore possible to find that courts that refused to analyze delays of the first trial despite their length generally did so because they considered that the accused’s inaction denoted a lack of real prejudice. There is a limit to this reasoning, however: the end of the transitional period.

The more time passes, the fewer cases there are currently in the system within the meaning of Jordan . The application of the transitional exceptional circumstance is drawing to an end. [ 68 ] Indeed, while prejudice was a necessary element when analyzing the reasonableness of the delays in the Morin era, and incidentally under the transitional exceptional circumstance, that is no longer the case under Jordan . Now, when net delays exceed the presumptive ceilings under Jordan , the accused need not show prejudice: the delays are presumptively unreasonable.

The Crown also cannot attempt to rebut this presumption by showing an absence of prejudice. [49] [ 69 ] That being the case, one must realize that an accused whose first trial took place in the Jordan era and who were to raise a violation of his right for the first time during his second trial could not be barred on the basis that his motion was presented late if the net delays of the first trial exceeded the ceilings in Jordan .

Because the transitional exceptional circumstance would not apply, the Crown could not attempt to rebut the presumption by arguing that the fact that a motion was not presented during the first trial means that the accused was satisfied with the pace of the trial and the delays did not cause him any prejudice. [ 70 ] The Crown also could not argue that the failure to raise such a violation during the first trial is tantamount to a waiver by the accused of his or her right to be tried within a reasonable time.

Such waiver must be clear and unequivocal. [50] [ 71 ] I cannot agree, therefore, with the judgments that, without qualification, refuse to consider delays during the first trial based solely on the premise that these delays were reasonable because the accused did not present a motion during the first trial. [51] While this position might be justified under a transitional exceptional circumstance because the absence of actual prejudice can be inferred, the same cannot be said when the delays are incurred entirely within the Jordan era. [ 72 ] A few additional remarks are worth making. [ 73 ] In the interests of the sound administration of justice, it appears preferable to me for an accused to raise a violation of the constitutional right to be tried within a reasonable time as soon as possible.

There may be cases, however, where an acquittal may present more real advantages to the accused than an order for a stay of proceedings.

It is therefore not merely a matter of judicial strategy. [ 74 ] In the same vein, it would be in the interests of an accused acquitted in a first trial whose verdict is appealed by the Crown to voice his or her intention to present such a motion, so that the Crown may properly reassess the relevance and chances of success of the appeal. [ 75 ] In a case like the one at bar where the Crown does not contest the characterization or computation of the delays, an appellate court could certainly rule on a motion for breach of s. 11(

b) and order a stay of proceedings if appropriate. This situation could fall within one of the exceptions considered in Phillips c. R . because it would not involve the presentation of evidence. [52] [ 76 ] These remarks should not be taken to mean that the late presentation of motions under s. 11 (

b) should be encouraged. Rather, I am of the view that they should not be excluded without further consideration. 5.3 Should the delays of both trials be combined or analyzed separately? [ 77 ] Even if the delays from the first trial may be considered under s. 11 ( b ), as my remarks in the previous

section imply, I find that it would not be appropriate to combine the delays of both trials to determine whether there is a Charter violation. [ 78 ] The issue of calculating the delays for a new trial has given rise to conflicting case law. Because the presumptive ceilings established in Jordan take into account only one trial, [53] the courts have had to decide how this analytical framework should be adapted when a new trial is ordered. [ 79 ] Several approaches have evolved.

They may be grouped into two categories: (1) approaches that combine the delays of both trials, with the clock starting to run again where it had stopped before the appeal; and (2) approaches that refuse to combine the delays of both trials, with the clock being reset to zero from the time of the order for a new trial. [ 80 ] In the Morin era, the first category was favoured. [54] Can this analytical framework still be adopted in the wake of Jordan ?

In my view, it cannot. [55] [ 81 ] Among the approaches that combine the delays of both trials, some suggest applying the Jordan ceilings (18 or 30 months) to the overall delays, [56] others suggest doubling the Jordan ceilings (36 or 60 months), [57] while yet others suggest establishing ceilings above those in Jordan to adapt them to the holding of a second trial. [58] [ 82 ] The first approach should quickly be set aside because it is obvious that the ceilings of 18 or 30 months were based on a single trial. As the majority of the Court of Appeal of Alberta wrote in R. v.

JEV , “the presumptive ceiling established in Jordan does not contemplate time for a retrial. The presumptive ceiling in Jordan includes only the net time required to prepare for and complete the first trial”. [59] [ 83 ] As some judgments indicate, [60] it would be practically impossible for a first and second trial to conclude within the one and only ceiling. In other words, most if not all orders for new trials by appellate courts would become futile or illusory.

[ 84 ] The second approach (doubling the ceilings) and the third approach (adapting the ceiling for a second trial) must be rejected for the following reason: they risk distorting reality. [ 85 ] For example, in Gakmakge c. R ., the delay was 24 months for the first trial and 34 months for the second. By combining these two trials, the total delay is 58 months, which is below the doubled 30-month ceiling under Jordan .

Yet, because the first trial concluded below the ceiling, Mandeville, J. did not believe that examining this delay was justified and focused instead on the delay for the second trial: [36] This Court does not believe it should enter into a minute calculation of the delays for the first trial and finds it is inappropriate to combine the delays of the two trials for anything other than keeping in mind a comprehensive portrait of the situation of the accused. [37] Indeed, combining delays for two (2) trials may create a distorted picture of the situation. [38] Deducting appellate delay and combining delays for the completion of two trials could lead to an erroneous appreciation of an accused’s rights to trial within a reasonable time.

For example, in a situation were [sic] the first trial took a very long time to be completed but where the Crown and the Defence would have been proactive and made every effort to obtain a second trial rapidly, the global delay could still exceed the presumptive ceiling of thirty (30) months (per trial), leading to an application under s. 11(

b) of the Charter appearing to bear some merit, while in fact it is ill-based. [39] Combining trial delays results in the presumptive ceiling appearing to be exceeded and the burden would shift on the Crown to demonstrate to the judge that the case fell into exceptional circumstances, or that it had acted in such a way as to hasten the process.

If the delays for the second trial only were to be considered, this would not be the case and the presiding judge would rapidly be able to determine if the Accused was or not denied his right to be tried within a reasonable time. [61] [ 86 ] Combining the delays of two trials could also increase the accused’s burden to demonstrate a violation of his or her right to be tried within a reasonable time. For example, where the delay for the first trial is 40 months and the delay for the second is 10 months, the total delay is 50 months.

If the ceiling of 60 months to hold two trials is adopted, the accused would have to prove a violation of his or her right, since the 50-month delay is below the ceiling. If the 40-month delay for the first trial is analyzed separately, however, it can be seen that it exceeds the 30-month presumptive ceiling under Jordan .

That being so, the burden to prove the reasonableness of the delay would then rest with the Crown. [ 87 ] The situation was different in the Morin era given that the analytical framework was flexible, which was one of its flaws. [62] There were no ceilings over which the delays were presumed to be unreasonable, merely “guidelines”. The courts therefore had some leeway when analyzing the reasonableness of the delays accumulated during two trials.

That is no longer the case today. [ 88 ] In Jordan , the Supreme Court stated that the imposition of ceilings was made necessary by a systemic culture of complacency towards judicial delay. [63] It is a complete shift from the Morin era. If the accumulated delays of both trials were considered together, the courts could find themselves giving a certain legitimacy to a culture of complacency during the hearing of one of the trials, despite the fact that the delays of one taken alone would be unreasonable. In other words, a new trial should not be a means to remedy a breach of s. 11(

b) of the Charter during either trial. [ 89 ] In short, for the reasons expressed above, the analytical framework used during the Morin era when a new trial had been ordered now appears outdated. Combining the delays of both trials to assess whether s. 11(

b) of the Charter has been violated is inconsistent with the new analytical framework established under Jordan . In other words, the clock for delays should instead be reset to zero when a new trial is ordered. [ 90 ] I would suggest a two-step test. First, the delay for the first trial should be assessed according to the Jordan framework.

If the delay is found to be reasonable, the analysis of the second trial then begins according to its own analytical framework, assuming, however, that the order for a new trial is the starting point for computing the delay. [ 91 ] Considering the specific context of this case, I can only find that the analysis of the delay in the second trial is moot because I have concluded that the delay in the first trial was unreasonable and therefore that the order to stay the proceedings was justified. [ 92 ] The total delay between the indictment (February 8, 2011) and the closing arguments (May 16, 2016) in the first trial was 63 months and 8 days (1,924 days) .

One day must be deducted as a delay attributable to the defence, bringing the total to 63 months and 7 days (1,923 days). [ 93 ] Because this exceeds the 30-month ceiling established by the Supreme Court in Jordan , it was up to the appellant to show that this delay was reasonable by invoking an exceptional circumstance or transitional considerations. [ 94 ] In the table of delays filed as Exhibit R-7, the respondent concedes that a period of 38 days is a discrete event because his counsel was appointed to the judiciary. [64] [ 95 ] As for the rest, the appellant did not invoke exceptional circumstances or transitional considerations either in first instance or on appeal. [65] [ 96 ] In light of this observation, it must be concluded that the delay in the first trial was 62 months (1,885 days) and that the appellant has not rebutted the presumption of unreasonableness. [ 97 ] Thus, although the judge considered a net delay of 72 months and 2 days rather than a delay of 62 months, the latter delay exceeds by more than double the 30-month ceiling established in Jordan .

The judge therefore did not err in concluding that the respondent’s constitutional right to be tried within a reasonable time was violated and that a stay of proceedings was necessary.

[ 98 ] Because that is sufficient to decide this appeal, I do not believe it is necessary to decide which analytical framework should be used with respect to the expected delay for the hearing of the second trial. [66] [ 99 ] For all these reasons, I would dismiss the appeal. __________________________________ JACQUES J. LEVESQUE, J.A.