In R. v. MacIsaac, the Ontario Court of Appeal recently made some important comments on the Jordan framework for unreasonable delay in criminal proceedings in the context of re-trials that could have much broader implications for the criminal and regulatory justice system. The Court indicated that:

1. a lower presumptive ceiling should apply for re-trials (without suggesting what that ceiling should be);
2. when a judge reserves their decision following trial, the delay clock may not stop until a judgment is released; and
3. if Crown counsel requests a later block of consecutive trial dates (within the presumptive ceiling) where there are earlier non-consecutive dates, that may constitute an unreasonable delay.

While most of these suggestions were made in obiter, if followed they raise the prospect of:

1. re-trials being placed at the front of the line for trial dates, potentially at the expense of other trials being bumped;
2. Crown counsel needing to build in time for the trial judge to write reasons when scheduling trial dates;
3. trial judges who are already under scheduling pressure for trials and re-trials feeling pressure to release decisions at an accelerated rate in order to not create unreasonable delay; and
4. further fragmentation of criminal and regulatory trials.

Background: A Dirty Hit or an Accidental Collision on the Ice?

Mr. MacIsaac was charged with aggravated assault following a collision in the final seconds of a non-contact recreational hockey game in a senior men’s league in Ottawa. The witness testimony varied with some suggesting that Mr. MacIsaac had left his feet and delivered an intentional blindside, head-high hit in retribution for a trip by the complainant earlier in the game, and others suggesting that it was an accidental, unavoidable collision around the puck. The complainant suffered severe injuries including lacerations to his face, two missing front teeth, and a concussion.

The history of the proceedings leading to the re-trial were as follows:

• March 15, 2012: The incident occurred.
• July 11, 2012: The accused was charged with aggravated assault.
• December 13, 2013: The accused was convicted following an eight-day trial in the Ontario Court of Justice (17 months after charges were laid).
• August 31, 2015: The Ontario Court of Appeal quashed the conviction and ordered a new trial, holding that the trial judge had engaged in impermissible speculative reasoning in reaching her verdict.
• October 16, 2015: The Crown decided not to seek leave to appeal to the Supreme Court of Canada.
• November 6, 2015: The summons for re-trial was issued and was served on the accused a few weeks later.
• February 3, 2016: The trial was scheduled for February 6 to 17, 2017 as that was the soonest 10 consecutive trial days were available.
• October 26, 2016: The accused’s application for a stay of proceedings under s. 11(b) of the Charter due to delay was dismissed.
• February 16, 2017: The trial concluded and Justice Kehoe reserved her decision (17 months after the re-trial was ordered).
• April 18, 2017: Justice Kehoe released a 206-page judgment finding the accused guilty of aggravated assault (19 months after the re-trial was ordered).

Application of the Jordan Framework

i. Overview of Jordan Framework

In R. v. Jordan, the Supreme Court of Canada overhauled the framework that is applied to determine whether an accused has been tried within a reasonable time as required by s. 11(b) of the Charter. For a detailed outline of the Jordan framework and its previous application by the Ontario Court of Appeal, please see our prior articles here and here.

In the two years since Jordan was released, provincial trial and appellate courts have grappled with the application of the new framework to different situations that Jordan did not offer any guidance on, such as direct indictments,[1] intervening appeals,[2] cases involving multiple accused[3] and regulatory prosecutions against a corporate accused.[4] The Supreme Court has only issued one s. 11(b) decision in the intervening two years, which did little more than reiterate its commitment to the Jordan framework.[5] This has resulted in considerable uncertainty in the application of the Jordan framework with lower courts being forced to apply pre-Jordan principles in the post-Jordan world with little in the way of guidance from above.

This was the task facing the Ontario Court of Appeal in MacIsaac as they dealt with the application of Jordan to re-trials.

ii. Presumptive Ceiling: Is it Shorter for Re-Trials?

Justice Huscroft, writing for the unanimous Court of Appeal, stated that the Jordan framework “must be applied in a manner consistent with the Crown’s duty to re-try cases as soon as possible” and indicated that a shorter presumptive ceiling than 18 months may be warranted for re-trials in the Ontario Court of Justice.[6] However, since he had concluded that the delay was unreasonable regardless of the presumptive ceiling, he stated that the issue was being left open for another day:

In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a re-trial. Re-trials must receive priority in the system, and in the normal course re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for re-trials.

We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown’s duty to re-try cases as soon as possible. [emphasis added][7]

Later in the judgment, the Court concluded that the defence had met its burden in demonstrating that a 17-month net delay for the re-trial (below the ceiling) was unreasonable. Under Jordan, in order to make such a finding, the Court had to conclude that it was a “clear case” that the 17-month delay was “markedly longer than it reasonably should have [been.]”[8] The Court stated that “re-trials must receive priority in the system, and that this should normally result in a delay well under the 18-month presumptive ceiling established in Jordan.”[9]

Following MacIsaac, it appears that the presumptive ceiling for re-trials in the Ontario Court of Justice is effectively less than 18 months in Ontario, but exactly how much less is anyone’s guess.

iii. Clock Starts When Re-trial is Ordered

The trial judge had held that the delay clock for the re-trial did not begin to run until the appeal period had elapsed and the summons for re-trial was issued. The Court of Appeal disagreed with this conclusion, holding that it runs from the date of the appeal decision ordering the re-trial:

The trial judge concluded that the clock did not begin to run until the summons for re-trial was issued, November 6, 2015, rather than the date this court ordered a re-trial, some nine weeks earlier on August 31, 2015. She erred in doing so. The right to be tried within a reasonable time arises on being charged with an offence. This court’s order quashing the appellant’s conviction left him in the position of being a person charged with an offence: see R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908. Accordingly, the clock should have run from the date of this court’s decision.[10]

iv. When Does the Clock Stop?: End of Trial or Release of Decision?

In Jordan, the Supreme Court stated that the total delay was calculated from the date of the charge to “the actual or anticipated end of trial.”[11] The Supreme Court did not address whether, in the context of a trial before a judge alone, the “end of trial” meant the end of the hearing of evidence and argument, or the rendering of the verdict and thus includes time that a decision is under reserve. The Court in MacIsaac noted that prior to Jordan, the time a judgment was under reserve was typically considered to be part of the inherent time requirements of a case, but some judicial delays in rendering a decision were considered unreasonable and warranted a stay.[12]

If the time that the judgment was under reserve was included, the net delay in MacIsaac was 19 months, just above the presumptive ceiling. If this time was excluded, the net delay was 17 months, just below the ceiling. The Court ultimately held that the delay was unreasonable regardless of whether these two months were included, so it left the issue “for resolution in a future case, with a fuller evidentiary record and argument.”[13]

v. Crown Not Entitled to Deduct Time Waiting for Trial Decision and Considering Appeal

If the net delay was 19 months (above the ceiling), the Court held that the Crown had not established that there were periods of delay owing to exceptional circumstances which should be subtracted from the net delay to bring it within the 18-month ceiling.

While the Court declined to decide whether reserve time was part of the total delay, it did hold that a delay while a decision is under reserve is not an unforeseen discrete event that should be subtracted as an exceptional circumstance.

Lower courts had split on this issue since Jordan. On one side, the Alberta Court of Queen’s Bench held that “delays occasioned by judges reserving decisions are discrete events which constitute exceptional circumstances. The decision by presiding judges to reserve decisions are both unforeseen and unavoidable.”[14]

On the other side, the Ontario Superior Court of Justice and Quebec Superior Court held that the length of the decision and the time it was under reserve may support an argument that the case was particularly complex, but do not constitute an unforeseen discrete event as “[t]here is nothing ‘exceptional’ about a judge reserving a decision; in fact, it is likely the norm… except in the simplest of cases.”[15]

In MacIsaac, the Court of Appeal adopted the latter approach holding that “time is required to provide the parties with reasonably intelligible reasons the trial judge considers sufficient to provide a basis for meaningful appellate review is to be expected. It is not, in itself, a discrete exceptional event, nor does it become such an event in this case by virtue of the length of the reasons provided or the issues involved.”[16]

Additionally, the Court held that the time the Crown spent deciding whether to appeal was not an unforeseen discrete event as “it is a routine matter that arises in every case in which an appeal from conviction succeeds. A decision allowing an appeal and ordering a re-trial may well be unexpected in particular circumstances by the Crown, but it is not an unforeseeable event on that account. It is always a possibility and the Crown must be prepared to consider its appeal option in every case.”[17]

vi. Crown May Not Be Entitled to Prefer Later Consecutive Trial Dates

As noted above, if the total delay was 17 months (below the ceiling), the Court held that the defence had met its burden in demonstrating that the delay was unreasonable. In addition to its comments about expecting re-trials to be completed more quickly, the Court criticized the Crown for requesting 10 consecutive days for the trial over earlier non-consecutive dates. The Court held that “[t]he Crown’s duty to re-try the appellant as soon as possible meant that the Crown could not maintain its preference for consecutive trial dates” and had to schedule earlier non-consecutive trial dates.[18]

Takeaways: Speed Over Substance?

The comments of the Court of Appeal in MacIsaac, while mostly made in obiter, have the potential to have a significant impact on the scheduling of trials, and re-trials.

While it remains an open question whether the time a judge spends writing reasons for judgment counts towards the overall delay, the mere possibility may alter the behaviour of Crown counsel and judges. Crown counsel may be required to start estimating and building in time for the trial judge to write reasons when scheduling trial dates, which may be very difficult in the earlier stages of the case when the trial is being scheduled. If the Crown does not build in enough time, the trial judge may feel compelled to release their reasons before the expiry of the presumptive ceiling. This may strain already burdened judicial resources, and may affect the care that judges can exercise in crafting their reasons if they are preparing them under the pressure of contributing to unreasonable delay.

Additionally, the criticism in MacIsaac of the decision by the Crown to select consecutive trial dates that are within the presumptive ceiling where there are earlier non-consecutive dates may result in Crown counsel feeling compelled to schedule the first available non-consecutive dates going forward. This would lead to greater fragmentation of trials, burdening judges with a greater number of trials in progress at any one time. Having single trial days spread out over weeks or months is less efficient and more costly, as counsel need to re-prepare before each separate court date, and is likely to cause increased stress and anxiety for witnesses, victims and the accused.

The Supreme Court developed the Jordan framework to enhance “clarity and predictability” in the application of s. 11(b) of the Charter.[19] It will be interesting to see how the Supreme Court deals with the application of s. 11(b) in the context of re-trials when called upon to consider the issue, and to see whether the evolving jurisprudence includes the time for judges to prepare reasons in the presumptive limits prescribed by Jordan.

Case Information

R. v. MacIsaac, 2018 ONCA 650

Docket: C63910

Date of Decision: July 18, 2018

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[1] See e.g. R v. Schenkels, 2017 MBCA 62 at paras. 43-50.

[2] See e.g. R. v. Windibank, 2017 ONSC 855 at paras. 57-70.

[3] See e.g. R. v. Gopie, 2017 ONCA 728 at paras. 128-142.

[4] See e.g. Missisauga (City) v. Uber Canada Inc., 2016 ONCJ 746 at paras. 78-89.

[5] R. v. Cody, 2017 SCC 31.

[6] R. v. MacIsaac, 2018 ONCA 650 at para. 23 [MacIsaac].

[7] MacIsaac at paras. 27-28.

[8] R. v. Jordan, 2016 SCC 27 at para. 48 [Jordan].

[9] MacIsaac at para. 59.

[10] MacIsaac at para. 31.

[11] Jordan at para. 47.

[12] MacIsaac at para. 35.

[13] MacIsaac at para. 37.

[14] R v Lavoie, 2017 ABQB 66 at para. 38.

[15] R. v Tsega, 2017 ONSC 3090 at para. 61; Industries Garanties limitée c. R., 2017 QCCS 1504 at paras. 14-16.

[16] MacIsaac at para. 48.

[17] MacIsaac at para. 51.

[18] MacIsaac at para. 64.

[19] Jordan at para. 108.