Aug 1, 2018

R. v. MacIsaac, 2018 ONCA 650 - Summary

R. v. MacIsaac, 2018 ONCA 650 (CanLII)

This case addresses the interplay between the R. v. Jordan, 2016 SCC 27, ceilings and re-trials.

An accused was found guilty after a trial, then a new trial was ordered on appeal. This new trial was not scheduled for 17 months, so he brought an application for a stay under s. 11(b) of the Canadian Charter of Rights and Freedoms alleging a breach of his right to be tried within a reasonable delay. The application was dismissed (par. 3). After his second trial, the accused was again found guilty. The Court of Appeal for Ontario intervened to enter a stay.

The (second) trial judge dismissed the stay application by noting that the new trial was held under the 18-month presumptive Jordan ceiling (par. 10). On appeal, however, the Court held that "[t]he Jordan principles must be applied in a manner consistent with the Crown’s duty to re-try cases as soon as possible." (par. 23), relying on previous case law on this duty (par. 24).

Though the parties on the appeal had proceeded with the assumption that the Jordan ceilings applied to a re-trial (par. 26), the Court did not share this assumption. Instead, it commented that "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." (par. 27). (It still decided the case under this assumption, since no argument was raised to support its comment: par. 28. But the door is now well opened for future cases.)

To calculate the delay to compare to the 18-month ceiling, the Court first had to fix its starting point. It held that in the case of a re-trial, the delay started at the appeal court decision to order a new trial (par. 31) and not when the accused was issued a summons. As for the end, since it could decide the case without deciding, it left open the question of whether it should include the time when a judgment is under reserve, or end at the close of the trial (par. 37).

As such, the Court established two scenarios: the first, where the time when the trial judge's judgment was under reserve is included for a total of 19 months, and the second, where it is no, for a total of 17 months (par. 41).

Under the first scenario, where the burden is on the Crown, the Court held that both discrete exceptional events raised by the Crown were not really discrete exceptional events. First, it found that:
"[The time the decision was under reserve] 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." (par. 48)

It also found that:
"[51] The decision whether to seek leave to appeal to the Supreme Court is not an unforeseeable or unavoidable event of the sort contemplated by Jordan. On the contrary, 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.
[52] The duty to re-try a case as soon as possible imposes no great burden on the Crown, even assuming there may be good reason to consider seeking leave to appeal to the Supreme Court in a particular case. It would be a relatively simple matter to take the steps required to set a re-trial in train while a leave application is being considered."

It also considered that no transitional case argument was available to help the Crown (par. 53-56)

Under the second scenario, where the burden is on the defense, the Court held that a delay of 17 months would still be unreasonable. It focused in part on the fact that the Crown asked for 10 consecutive days (par. 61), rather than accepting disjointed trial dates. When faced with the s. 11b) application, the Crown took minimal actions to try and expedite the case, stopping simply after being told that no earlier date was available (par. 62). This did not go well with the Court:
"[63] In these circumstances, it is no answer to the appellant’s delay argument that the trial co-ordinator would not agree to provide earlier dates. The Crown cannot simply take “no” for an answer in the context of a re-trial. A greater sense of urgency is required, lest the culture of complacency the court warned of in Jordan be condoned.
[64] The 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. It had to make whatever arrangements were necessary to commence and complete the re-trial as soon as reasonably possible, even if that required accepting trial dates it considered suboptimal."

In summary, it can be said that re-trials should be a priority held to higher delay standards than first trials. This will in the future likely result in lower presumptive ceilings, but even until then, the Crown must do everything it can to ensure that those being re-tried do not suffer avoidable delays, even in parallel to its consideration of whether to appeal or not the decision to grant a new trial. In complex or lengthy cases, this may lead the Crown to conclude that charges should be stayed if it thinks that it cannot fulfil its constitutional obligations.