Three appeals court judges have reversed a decision to dismiss charges against a man accused of the sexual abuse of his daughter, saying the trial judge made a mistake in staying the proceedings.
The man was charged in North Bay on Oct. 10, 2020, but the trial wasn’t scheduled to begin until Nov. 14, 2023, a delay of 37.4 months.
Under what’s known as the Jordan Rule, the trial of suspects in criminal cases in Canada must begin within 30 months of charges being laid.
However, the 30-month limit doesn’t include delays attributable to the defence or events such as the COVID-19 pandemic. Courts must calculate how much delay is the fault of the defence or other factors beyond the control of the Crown and subtract it from the total to come up with the net delay.
In a decision released Oct. 31, 2023, the trial judge ruled the net delay was 33 months in this case and dismissed the case.
There is a publication ban prohibiting the publication of any information that could identify the victims in the case.
Trial judge made errors
The Crown appealed to the Court of Appeals of Ontario, arguing the trial judge made errors in calculating the net delay.
“The Crown submits … the application judge erred by attributing too little delay to the defence with respect to three distinct periods of time,” the appeals court decision said.
“Correction of these errors, the Crown says, arrives at a net delay below the 30-month Jordan ceiling.”
The Crown said the defence caused 59 days of delay when it failed to promptly set a date for a preliminary inquiry. Then the defence was unavailable for a judicial pre-trial, the Crown argued, causing 43 more days of delay. Finally, the Crown said the defence “unreasonably” required a second judicial pretrial, leading another delay of 29 days.
The appeals court ruled the trial judge made a mistake in blaming the Crown for the 59-day delay in setting a date for the preliminary inquiry because of delays in disclosing witness statements recorded on DVDs.
In fact, the delay was because the accused changed his mind and wanted an in-person hearing rather than one held on Zoom.
“In the email exchanges between the parties there was no mention at all that the need to review the DVD statements was the catalyst,” the decision said.
“Defence counsel was clear in an email on Feb. 13 that he would go back and meet with the respondent. A month later, on March 29, he advised the Crown that he was able to return to the agreement they had arrived at on Feb. 8. There was no mention of the DVDs.”
DVD with witness statements
In fact, once the Crown was made aware Feb. 23 that the DVD statements had not been handed over, they were delivered to the defence Feb. 26.
In the second delay of 43 days, the Crown was available for the judicial pretrial in September, but the defence said it wasn’t available until November.
“The Crown argues that since the Crown and the court were available for a JPT on Sept. 20, but the defence was not, the resulting delay is attributable to the defence,” the decision said.
It was unfair to hold the Crown responsible for this delay, the court heard, when they were available to hold the hearing in September.
However, the appeals court judges ruled that the defence was also not required “to hold themselves in a state of perpetual availability.”
“In my view, on the particular facts in this case, a fair and reasonable apportionment of the delay is to attribute 21 days of this period to the defence, and 22 days as institutional delay which is factored in as part of the total delay in the Jordan framework.”
Second judicial pretrial
Finally, on the third delay of 29 days, the defence admitted that it was not ready to proceed with the second judicial pretrial in January 2021, but said the delay was “to give advice and receive instructions on a complicated and potentially costly set of strategic decisions,” the court decision said.
“The defence needed to consider bringing third-party records applications involving seven different record holders.”
While the trial judge agreed the defence was primarily responsible for the delay, the work was necessary for the defence to respond to the charges.
But the appeals court judges ruled that the need for a second judicial pretrial was caused “solely or directly” by the defence because they were not ready for the first pretrial.
New total of 29.4 months
“In all the circumstances, the defence was not prepared to conduct the first JPT and ought to have been, thereby solely and directly causing further delay until the second JPT was held,” the appeal court judges ruled.
“In my view, the entire period between the first and second JPT ought to have been attributed to the defence alone and characterized as defence delay.”
Combined, the net delay would now be calculated at 29.4 months and below the 30-month limit set in Jordan.
“Accordingly, the appeal is allowed, the stay of proceedings set aside, and the matter remitted to the Superior Court of Justice for trial,” the appeals court ruled.
