R. v. Charley, 2019 ONCA 726

S. 11(B) - DELAY - POST-VERDICT DELAY - JORDAN 

“Jordan analysis extends too post-verdict delay. Post-verdict delay is subject to a separate five-month presumptive ceiling that operates in the same manner, and with the same qualifications of pre-verdict delay ceilings.”

Background

The Respondent, Charley, was found guilty of robbery with a firearm on January 27, 2017. After these findings of guilt, but prior to sentencing, the Respondent brought a motion to stay the proceedings on the basis of a section 11(b) violation. Trial judge granted motion, and stayed the proceedings by applying the 30-month presumptive ceiling established in Jordan (2016 SCC 27) to the period beginning with the laying of the charge extending to the anticipated date of sentencing.

Post-Verdict Proceedings

The trial judge stayed the proceedings on June 25, 2018, 17 months after the findings of guilt were entered on the basis that the post-verdict proceedings breached the Respondent’s 11(b) right to be tried within a reasonable time. Following the findings of guilt, the Crown indicates it wishes to bring a s.752.1 application for psychiatric assessment. Three months later, the defence files a wide-ranging constitutional challenge. Each of these applications has several days of submissions and hearing of evidence contributing to the post-verdict delay. In April 11, 2018 the defence advises it intends to bring a s.11(b) application in May. In June 2018, submissions are heard re: 11(b) motion. On June 25, 2018 trial judge finds violation of Respondent’s 11(b) right.

Legal Principles: Post-Verdict Delay

It is settled law that the Jordan framework of delay includes both pre-verdict and post-verdict phases of trial proceedings. Doherty JA, writing for the court, considers four possible approaches to assessing post-verdict delay.

Option #1 - the delay should be analyzed in accordance with the criteria in Morin. The court rejects this approach as the criteria in Morin are unpredictable, unnecessarily complex and too accepting of institutional complacency.

Option #2 - the delay should be analyzed under Jordan, and presumptive ceilings in Jordan include any post-verdict delay. The court rejects this approach as Jordan very clearly speaks to pre-trial delay. In Jordan, the delay was calculated from the laying of the charge to the date of conviction. Delay between verdict and sentencing were not factored into the 30-month presumptive ceiling. On a practical note, s. 11(b) applications are often brought prior to verdict. While the anticipated date of verdict can be practically ascertained, any assessment of post-verdict time is largely speculation. 

Options #3 - the delay should be analyzed under Jordan but without regard to a presumptive ceiling. Under this approach, the onus is on the defence to establish a breach of s. 11(b). This is the threshold used in Jordan used for pre-verdict delay that falls below the presumptive ceiling. The court rejects this approach as it is inconsistent with the spirit of the law in Jordan as it imposes an obligation on the defence to move the matter to sentencing, and does not impose a reciprocal obligation on the Crown or the court. This goes directly against the motivation in Jordan to combat institutional delay and complacency. 

Option #4 - the delay should be analyzed under Jordan, and subject to its own separate presumptive ceiling. Ultimately, the court adopts this option. Presumptive ceilings provide the Crown with “meaningful direction” as to the nature of its obligations under s. 11(b). This function is equally as useful in post-verdict proceedings, as it is in pre-verdict proceedings. Doherty JA also favours this approach as it provides “doctrinal consistency” and dictates a common approach to delay.

Relying on its own experience, the submissions of experienced counsel, and a review of the reported cases the ONCA sets the post-verdict delay presumptive ceiling at 5 months. A presumptive ceiling does not identify the amount of time it should take to move a case from verdict to sentence. Rather, it is a point in time where the delay becomes presumptively unreasonable (the onus is on the Crown to justify such a delay). The court can look at the length of pre-verdict delay in determining whether the defence has established unreasonable delay post-verdict.

All parties (trial judge, Crown, defence) have the responsibility to ensure proceedings move to sentencing in a timely manner. In complex sentencing proceedings, parties must alert the trial judge of issues that will be raised on sentencing as soon as practicably possible after the verdict. 

Application

The Respondent was found guilty on January 27, 2017. The Crown was prepared to speak to sentence in early-August 2017. The delay between August 2017 to stay of proceedings in 2018 was largely due to defence constitutional applications and motions. Thus, the net post-verdict delay is 7 months (January 2017-August 2017) which is above the presumptive ceiling of 5 months. Five of the seven months, however, was occupied by the Crown’s s. 752.1 application which can only be brought after the guilty verdicts. While this type of delay is reasonably unavoidable given that the Crown has an obligation to bring such an application in appropriate circumstances, the Crown still has an obligation to mitigate any delay. In this case, the Crown acted reasonably - the five months is thus a discrete event for the purposes of calculating delay. The remaining two months is below the presumptive ceiling.

Appropriate Remedy

Appropriate remedies for unreasonable post-verdict delay may include a stay of the sentence, or a stay of the enforcement of all or part of the sentence imposed. 

DOHERTY JA, writing for the court, sets aside the stay of proceedings, affirms the findings of guilty and remits the matter for sentencing.