R. v. Thanabalasingham, 2020 SCC 18 (37984)
“T was charged with the second degree murder of his spouse in August 2012. The preliminary hearing lasted more than a year. In June 2015, T’s trial was scheduled for February 2018, but it was later rescheduled to proceed in April 2017. Shortly before his trial, T brought a motion for a stay of proceedings pursuant to s. 11 (b) of the Charter. The trial judge ordered the stay. The Court of Appeal upheld the trial judge’s order.”
The SCC (9:0) dismissed the appeal.
In view of this conclusion, we need not address the issue of defence delay. In particular, it is unnecessary to consider how the calculation of defence delay may have been impacted by efforts made by the court and the Crown to move the original trial date forward from February 12, 2018. Even if Gagnon J.A. was correct in attributing a year of delay to the defence for its inability to take up an earlier trial date, the resulting delay would still have been 45 months, as indicated.
Since most of the delay in this case accrued before Jordan was released, we must consider, as the courts below did, whether the transitional exceptional circumstance justifies the delay (see Jordan, at para. 96). Here, it bears repeating that the vast majority of the lengthy delay in this case stemmed from systemic delay that had reached epidemic proportions across many parts of this country — a key factor that motivated this Court’s decision in Jordan. Indeed, as the trial judge noted, this problem had “plagued the criminal justice system in the district of Montreal” specifically (para. 40).
With respect to the transitional exceptional circumstance, we cannot say that the trial judge erred in concluding that the Crown failed to establish that the exception applied. As this Court said in Cody, the Crown will “rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework” if the case would have warranted a stay under R. v. Morin,  1 S.C.R. 771 (para. 74). In our view, this case would certainly have qualified for a stay under the previous framework. The trial judge calculated the institutional delay in this case at roughly 43 months, which greatly surpasses the Morin guidelines (14 to 18 months). Mr. Thanabalasingham spent nearly five years in custody awaiting trial, and he accordingly suffered actual prejudice as well as inferred prejudice (trial reasons, at para. 33). With respect to the nature of the charge, the trial judge recognized that the offence charged was “very serious” and that “a woman lost her life in tragic circumstances” (para. 36). That said, we agree with Crown counsel and the amicus curiae that the trial judge erred by stating that the “seriousness of the offence charged is a factor of very limited relevance in the analysis” (para. 37). In fairness to the trial judge, he did not have the benefit of this Court’s reasons in Cody. There, the Court clarified that R. v. Williamson, 2016 SCC 28,  1 S.C.R. 741, “should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance” (para. 70) and recognized that “[u]nder the Morin framework, prejudice and seriousness of the offence ‘often played a decisive role in whether delay was unreasonable’” (para. 69, quoting Jordan, at para. 96). It would appear that the trial judge read Williamson in the manner cautioned against in Cody. However, we are of the view that, given the circumstances of this case, this error was inconsequential. Even if the trial judge had not made this error, he would have arrived at the same result. We would therefore not interfere with his determination that a stay of proceedings was warranted.
Nothing in the foregoing should be taken as a retreat from the message that Jordan sought to convey, or from the principles and policy considerations underlying it. Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, “anything goes” culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion. Crown counsel is tasked with “making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently” (Jordan, at para. 138). Defence counsel must be aware that, aside from time legitimately taken to respond to the charges, they “will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not” (Jordan, at para. 64; see also para. 65). As we did in both Jordan and Cody, we again emphasize the special role that trial judges — who are charged with curtailing unnecessary delay and changing courtroom culture — must play in this shift (Cody, at para. 37, citing Jordan, at para. 114). For example, where the defence seeks an adjournment, a court may deny it “on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay” (Cody, at para. 37). In sum, practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11 (b) of the Charter — a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well.”