Re-evaluation Of Institutional Delay Leads To Overturned Stay On Murder Charge

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The Lawyer's Daily


Observers say a recent Ontario Court of Appeal decision on trial delay offers some lessons for prosecutors on how they approach the issue of ensuring people’s right to a speedy trial is maintained.

In R. v. Picard, 2017 ONCA 692, which was released Sept. 7, the court overturned the order of Justice Julianne A. Parfett of the Superior Court of Justice, staying the proceedings in a first-degree murder charge (R. v. Picard, 2016 ONSC 7061).

In December 2012, Adam Picard was charged with the first-degree murder of Fouad Nayel. The Court of Appeal noted the case involved a complex analysis of data from 53 cellphones, with the Crown anticipating calling 43 witnesses at trial.

In May 2015, the parties appeared in court to set trial dates, and the Crown said it was not prepared to accept a suggested date of February 2016 as the senior Crowns assigned to the case were unavailable. Because jury trials are not scheduled during the summer months, the date was set for September 2016.

After the date was set, Picard brought a motion to expedite the proceeding. The Crown opposed the motion, arguing if the trial were scheduled before July 2016, it would have the effect of removing at least one assigned Crown. The trial was set to begin in November 2016.

On Nov. 1, Picard informed the Crown he would be bringing forward an application under s. 11(b) of the Charter of Rights and Freedoms, which requires anyone charged with an offence be tried within a reasonable time.

Picard was relying on the decision in R. v. Jordan, [2016] 1 S.C.R. 631, to argue a stay was necessary. Under Jordan, a delay from the date of the charge to the actual or anticipated end of trial (minus defence delay) is presumptively unreasonable if it exceeds 30 months, unless the Crown can establish “exceptional circumstances,” one of which is a transitional exceptional circumstance, which applies when the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.

The Crown argued the complexity of the case required a delay under the exceptional circumstances category, which was rejected by Justice Parfett. She also rejected the idea a transitional exceptional circumstance applied and issued a stay of proceedings, which the Crown appealed.

Justice Paul Rouleau, who wrote the unanimous decision for the court, agreed that Justice Parfett erred in her application of the transitional exceptional circumstance under Jordan. Justice Rouleau was joined by Justices David Doherty and Sarah Pepall in his decision.

In her determination regarding whether a transitional exceptional circumstance applied, Justice Parfett applied the framework from R. v. Morin, [1992] 1 S.C.R. 771, to assess the delay. Under Morin, institutional delay starts to run when the parties are ready for trial, but the system cannot accommodate them. Institutional delay is eight to 10 months in provincial court and six to eight months between committal and the start of the trial in Superior Court.

Justice Parfett determined there had been 19 months of institutional delay, slightly above the high end in the Morin requirements. But the appeal court said she “significantly overstated the amount of institutional delay.”

“These errors infected her analysis of the Crown’s actions,” the court said. “When correctly assessed, therefore, the delay would not have been found unreasonable under the law prior to Jordan.”

The court said the length of the delay is “clearly a concern.”

“There is significant prejudice to Mr. Picard’s liberty interest, given that he was in custody throughout the proceeding,” the court said. “There is, however, no suggestion of prejudice to Mr. Picard’s right to a fair trial.”

The court said the institutional delay did not favour a stay, determining it was only seven months in total, well below the Morin guidelines. The Court of Appeal lifted the stay and sent the case back to the Superior Court for trial.

“The charge in this case predated Jordan and was a few months from trial when Jordan was released,” the court said. “I acknowledge that this case exhibits some of the delay concerns that Jordan sought to address. Had the charges been laid and prosecuted under the Jordan regime from the outset, the overall time needed to bring the case to trial combined with the Crown’s refusal to agree to a trial on the first available dates in the Superior Court would, in my view, have resulted in a stay.”

Palma Paciocco, an assistant professor at Osgoode Hall Law School who teaches criminal law and theory, called the decision "correct," saying it illustrated why major changes were needed under s. 11(b) requirements.

“Most of this case came before Jordan, but the court noted the delay would not have happened under Jordan,” she said. “Good things seem to be happening on Jordan.”

Christopher Sherrin, professor and assistant dean (academic) at Western University School of Law, said the issue of scheduling was “the most interesting comment in the decision.”

“The Court of Appeal is sending a pretty clear message that if the Crown finds itself in a similar situation, they’re just going to have to reassign Crowns,” he said.

Sherrin said he wonders about the more systemic consequences of an issue like that.

“You’ve got Crowns with seemingly voluminous amounts of information that take months to go over,” he said. “And when they’re reassigned the new Crowns have to get up to speed which would also take time.”

“You’ve got Crowns with seemingly voluminous amounts of information that take months to go over,” he said. “And when they’re reassigned the new Crowns have to get up to speed which would also take time.”

Sherrin said it may have a “snowball effect that in the very least has significant resource implications for the government.”

“Unless they have tons of Crowns running around, you wonder if by accelerating one case [they] might actually slow the pace of other cases,” he said. “And only so many Crowns are able to do a first-degree murder case.”

Stephen Coughlan, a professor at Dalhousie University's Schulich School of Law who has done research into trial delays, said the Picard decision shows that the new requirements under Jordan “require a change of attitudes for all parties, in particular the Crown.”

“In essence what they said was there was a date the defence and judge were available and the Crown disagreed because they wanted to have particular prosecutors doing this,” he said. “Under the pre-Jordan system, everybody thought that was okay.”

Coughlan said that kind of thinking says something about the culture of complacency that Jordan is meant to end. He noted the court let this case go under the transitional exception but also signaled this sort of behaviour in the future would lead to a successful 11(b) claim.

"Prosecutors’ offices are scrambling to work out how to do these kinds of things," he said.

Some of that scrambling involves new ways of speeding up proceedings, such as a bail project in the Ottawa and Toronto College Park courthouses exploring whether the introduction of judges [with] criminal trial experience at the earliest stage of the criminal court process could reduce time to final disposition.

“The bail project at College Park and Ottawa courthouses started September 5 and is anticipated to run from 18 to 24 months,” said Kate Andrew, senior counsel and special projects lead with the Ontario Court of Justice. “All judges at the Ottawa and College Park courthouses will participate in the bail project and will be scheduled to preside in bail court as well as in trials, judicial pre-trials and all other regular judicial responsibilities.”

Coughlan said it is “hard to be sure” what kind of impact the pilot project is going to have.

“The judges would have more control over the way things are actually scheduled,” he said. “And of course you would want the people who are already in custody come to trial more quickly, both from the point of view of fairness and a possibly successful 11(b) claim.”

But there is general agreement that there is no panacea at the current time to end court delays. Paciocco said “obviously better resources are the way to deal with them” but there are other methods that could be considered, such as better charge screening by Crown attorneys before police lay charges.

“The courts are clogged with people who are being prosecuted and could be dealt with in other ways,” she said. “Also, a lot more resources need to be directed toward Legal Aid.”

But Coughlan said there is a danger in assuming court delays are nothing but a resource issue. Before Jordan, he said, there were numerous examples of situations where dates for a trial couldn’t be reached so the case was moved to the bottom of the list.

“What Jordan is insisting on is that’s just not good enough. When you see a delay claim coming, do something about it in advance,” he said. “That’s not so much a resource issue but how you prioritize things with the resources you have.”

Coughlan said, before Jordan, reasons for delay weren’t taken into consideration.

“Under the old system, courts and prosecutors were not pushed to speed things up, but rather pushed to explain why it was slow,” he said. “Jordan changes that culture. It says we don’t want explanations as to why it can’t be fast, we want it to be fast.”

Howard Krongold of Abergel Goldstein and Partners LLP, Picard’s appellate lawyer, declined to comment on the case, stating he was “not in a position to comment” as the matter was before the courts. Picard’s trial lawyer, Lawrence Greenspon of Greenspon Brown & Associates, did not respond to requests for comment.