Ontario Appeal Court decision: How Charter breach affects right to speedy trial

By John L. Hill

Law360 Canada (October 20, 2023, 9:00 AM EDT) --
John L. Hill
John L. Hill
At one time, calculating release dates for prisoners was complicated and resulted in extensive litigation.

With the passage of the Corrections and Conditional Release Act and its abolition of earned remission, there was a major reduction in confusion. However, there continues to be disagreement in the calculation of when a breach of Charter s. 11(b) that gives an accused person the right to a speedy trial occurs.

When the Supreme Court held in R. v. Askov [1990] 2 S.C.R. 1199, numerous cases were dismissed when the right to a speedy trial had been breached. Following Askov, pressure mounted on Crown law offices to explain the delay adequately to maintain a prosecution. I recall seeing a sign in the Newmarket Crown’s office that read, “We’re working our Askovs.”

Eventually, a greater explanation of what was an acceptable delay was set out in R. v. Jordan 2016 SCC 27, where a presumptive ceiling of 18 months for trial in the Ontario Court of Justice was established. However, Jordan allowed some wiggle room in the calculation by extending time if an accused was responsible for the delay or waived any period in which the delay occurred. Further, exceptional circumstances could also lead to an extension of the time for trial. Suddenly, more responsibility was put on defence to ensure trials were completed in what was determined to be a reasonable time.

Confusion over what constitutes a waiver and what constitutes an exceptional circumstance has created new grounds for litigation, with the Crown now trying to blame defence counsel for foot-dragging. These were the major issues in R. v. Long 2023 ONCA 679. In this case, the Ontario Court of Appeal considered the case of Dennis Oliver Long, an osteopath accused of sexual assault on a female adult patient in 2018 and sexual touching involving a minor in 2019.

Long wanted to plead not guilty to both charges, have a preliminary hearing and proceed to trial. That was his position in February 2019 when he attended court for his first appearance. However, in June 2019, Parliament passed Bill C-75, which stipulated that a preliminary hearing could be held only if the maximum penalty for an offence was 14 years or more. The charge dealing with the minor was the only one of the two charges that could proceed as planned.

Was the new legislation retroactive? Working on the assumption it was, the Crown and defence set dates for trial in the Ontario Court of Justice. However, before the trial, the COVID-19 pandemic shut down the courts. New dates were established when the crisis abated. The Ontario Court of Appeal decided in R. v. R.S., 2019 ONCA 906 that the provisions of Bill C-75 did not apply to elections for trial before its passage. Long should have been entitled to have a preliminary on both charges. By Long’s acceptance, should the resulting delay amount to a waiver?

The Court of Appeal held that the standard of review in considering delay applications is correctness (R. v. Jurkus 2018 ONCA 489). Erroneous concessions do not bind the court. The important issue is determining if the trial judge’s delay designations were legally correct. Here, the court held that the exceptional circumstances of the COVID-19 lockdown should be measured from March 17, 2020, when the court shutdown began as set out in R. v. Agpoon 2023 ONCA 449. If the trial had proceeded on the dates originally proposed, Long’s s. 11(b) rights would have been breached.

However, the exceptional delay caused by the shutdown intervened and taking that delay into account, the hard ceiling imposed by the Jordan decision remained intact. The court emphasized, “The Jordan analysis should be based on the actual intervening event of COVID-19,” and “Reality should govern the analysis, not what might have been.”

The trial judge allowed the period from Jan. 28, 2020, to May 25, 2020, as the period of Bill C-75 confusion as exceptional. The defence argued the further period until the end of the trial on June 15, 2020, should be deducted. If this lesser amount were deducted as an exceptional circumstance, it would exceed the Jordan ceiling.

The Court of Appeal found the correct starting date was not May 25 but was March 20. Further, no relief was available because the court administration rescheduled trials, prioritizing people who had been held in custody.

The trial judge correctly treated the COVID-19 lockdown as an exceptional circumstance but erred in allowing Bill C-75 confusion similarly. Doing the required calculation, the total delay amounted to 17 months and 11 days. The Jordan ceiling remained intact.

Although Jordan attempted to provide a clear roadmap for measuring delay and provide some leeway to avoid the wholesale cancellation of charges following Askov, trial delay calculations will not be as easily eliminated as Parliament did with sentence calculations.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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