Tracy Kozlowski

The Crown appealed a stay of proceedings entered under s. 11(b) of the Charter for unreasonable delay in a historical sexual assault case.

The application judge had calculated a net delay of 33 months, exceeding the 30-month Jordan ceiling.

On appeal, the Court of Appeal found that the application judge made palpable and overriding errors by failing to attribute three distinct periods of delay to the defence: delay in setting a preliminary inquiry, delay due to defence unavailability for a judicial pre-trial, and delay caused by the defence being unprepared for the first judicial pre-trial.

Deducting these periods reduced the net delay to 29.4 months, below the ceiling.

The appeal was allowed, the stay set aside, and the matter remitted for trial.

The appellant was charged with manslaughter and firearms offences in December 2015.

Trial was scheduled within the Jordan ceiling but delays arose when the Crown refused to consent to a judge-alone trial, causing the net delay to reach approximately 35 months, exceeding the 30-month ceiling.

The trial judge denied a stay of proceedings by applying a transitional exceptional circumstance, finding the parties had reasonably relied on pre-Jordan law.

The Supreme Court held that no transitional exceptional circumstance applied: after Jordan was decided in July 2016, the parties could not have reasonably relied on the prior state of the law, and the delay was attributable to the Crown's refusal to adapt rather than insufficient time for the system to do so.

The Court also rejected a bright-line rule that would characterize all delay following defence counsel's rejection of a court-offered date as defence delay.