Case information

Criminal law — Procedure — Election for trial — Charter of Rights — Trial within reasonable time — Legal effects of “reservation” of election of mode of trial and time when that election must actually be recorded, allowing parties to know Jordan ceiling by which to govern themselves — Manner in which impact of systemic exceptional circumstance in particular case, that is, COVID-19 pandemic in present case, must be analyzed.

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On January 27, 2020, arrest warrants were issued against the respondents; they appeared on January 31, 2020, and “reserved” their election of the mode of trial. On September 3, 2020, the charges were withdrawn; the respondents appeared on a new information (the former counts were present therein, but new charges were added). On January 15, 2021, they opted to be tried by a provincial court judge. On September 3, 2021, the trial was set for June 13, 2022, to July 25, 2022.

The trial judge established the ceiling on delay at 18 months. The 12 excess months were not justified: (1) the pandemic had no effect on the case, (2) the management of the evidence by the Crown was deficient and (3) it was not demonstrated that there were exceptional circumstances. A stay of proceedings was ordered. The Court of Appeal dismissed the appeal. The 30 month ceiling applied given the respondents’ “reservation”. At the time of the re election on January 15, 2021, the Crown did not ask that the delay be waived. In taking into account the two start dates (January 31, 2020, and September 3, 2020), the 18 month period had nonetheless been exceeded. The case was in “preparatory” mode at the beginning of the pandemic; it weathered the consequences of the discrete exceptional event without being affected by it. The Court of Appeal refused to intervene on the issues surrounding the respondents’ responsibility vis-à-vis the delays and the complexity of the matter, deferring to the trial judge’s decision.