The Ontario Court Of Appeal Weighs In On The Jordan Framework For Trial Within A Reasonable Time

As discussed in our previous post, the Supreme Court of Canada recently dramatically altered the framework applicable to the right to a criminal trial within a reasonable time in R. v. Jordan, 2016 SCC 27. This decision has already had a significant impact on the operation of criminal courts in Ontario.

In light of this decision, the Ontario Court of Appeal requested further submissions on two s. 11(b) appeals that had already been argued before the Court under the previous framework. On September 28, 2016, the Court released its decisions in R. v. Manasseri, 2016 ONCA 703 and R. v. Coulter, 2016 ONCA 704. These decisions provide some helpful guidance on how the Courts of Ontario will apply the new framework to "transitional" cases in the system, particularly cases where 1) the delay is just below the presumptive ceilings established in Jordan, and 2) the delay is primarily caused by a co-accused.

Ontario Court of Appeal Expands on New Framework

In Coulter, the Ontario Court of Appeal provided a very succinct 6-step summary of the new framework at paragraphs 34 to 59, which builds upon Jordan. The Ontario Court of Appeal defined many helpful key terms that may be used by counsel and judges in s. 11(b) applications in Ontario moving forward:

Step 1: Calculate Net Delay

Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial. Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from: Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights; Defence-Caused Delay: Delay caused solely by the conduct of the defence. Step 2: Determine the Presumptive Ceiling

For cases in provincial courts, the Presumptive Ceiling is 18 months. For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months. Step 3: Calculate Remaining Delay, if Necessary

If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay. If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events. Step 4: Remaining Delay Greater than Presumptive Ceiling

Where the Remaining Delay is still greater than the Presumptive Ceiling, it is automatically presumed that the delay is unreasonable. The Crown may only rebut this presumption by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time. Where the Crown cannot establish that the case was particularly complex, the charges against the accused...