R. v. J.F., 2020 QCCA 6662022 SCC 17 (39267)

“In February 2011, the accused was charged with seven counts involving sexual offences against his daughter. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, following a preliminary inquiry. Argument was completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, the Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, the accused was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittal and ordered a new trial. Before the retrial began, the accused filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The motion concerned the delays in the first trial and the retrial.

In assessing whether the s. 11(b) right had been infringed, the trial judge combined the delays for the first trial and the retrial. She held that the accused’s right to be tried within a reasonable time had been infringed, and she entered a stay of proceedings. The Court of Appeal dismissed the Crown’s appeal, finding that it had not rebutted the presumption that the total delay between the charges and the end of the argument at the first trial was unreasonable.”

The SCC (8:1) allowed the appeal, set aside the stay of proceedings and remanded the case to another judge of the Court of Québec for the continuation of the trial.

The Chief Justice wrote as follows (at paras. 2-4, 29, 36, 43-44, 48-49, 56, 60, 69-73):

“This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?

The first question requires this Court to determine when an accused must indicate that their right to be tried within a reasonable time has not been respected. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. That being said, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework.

The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.



To determine whether first‑trial delay may be raised under the Jordan framework after a new trial has been ordered, it is necessary to consider, first, the duty of an accused to act proactively with respect to delay and, second, the timing of an application based on unreasonable delay and the possibility of obtaining a remedy for the delay complained of.



In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.



The Crown argues that where an accused raises first‑trial delay in the course of a retrial, the accused’s failure to allege an infringement of their right to be tried within a reasonable time during their first trial or on appeal can be raised against them. In support of this argument, the Crown suggests that a court can regard an accused’s long silence or lengthy inaction as [translation] “amount[ing] to a clear and unequivocal waiver or an acceptance of the delay associated with a past trial” (A.F., at para. 24; see also para. 42).

I must reject that proposition. Although the time at which an accused raises the unreasonableness of trial delay may affect the outcome of their motion, waiver of the delay cannot be inferred solely from the accused’s silence or failure to act. This is what the Court’s jurisprudence teaches, and, in my view, it would be inappropriate to depart from it. In addition to being wrong in law, this proposition by the Crown is a needless one, because this Court has clearly established how an accused’s inaction or lateness in taking action must be assessed.

Waiver must be proved by the prosecution (Askov, at p. 1229). For a court to find that delay has been waived, the accused must therefore take “some direct action from which a consent to delay can be properly inferred” (Askov, at p. 1229). The “mere silence of the accused is not sufficient to indicate a waiver of a Charter right” (Askov, at p. 1229; see also Mills, at p. 929). To be inferable, implicit waiver “requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver” (Morin, at p. 790).

Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. In Rabba, Arbour J.A., as she then was, noted that the fact that such a motion is brought after trial “would, in most cases, be fatal” and “would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter” (p. 447). While lateness in bringing a motion for a stay of proceedings may be a relevant factor, it cannot in itself establish waiver. This is how Arbour J.A.’s comments in Rabba must be interpreted. Waiver is established on the basis of an accused’s conduct (Askov, at p. 1228), having regard to the circumstances of each case (see, e.g., Warring, at paras. 11‑13 and 27).



Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources (Jordan, at paras. 41 and 116). Because the prospective approach adopted in Jordan allows the parties to know from the outset what time is reasonable for their proceedings, they have a responsibility to take proactive measures to prevent that time from being exceeded. This responsibility lies upon both the Crown and the defence. An accused who sees delay lengthening must act reasonably and expeditiously (Jordan, at para. 85). Bringing a motion in a retrial for a stay of proceedings based on first‑trial delay is contrary to this duty and interferes with the proper administration of justice. It disregards the very reason for which a new trial was ordered, as it essentially results in a stillborn trial. Moreover, given that such a motion is generally recognized as being late if it is brought after a trial has begun, it would be illogical to permit an accused to bring it even later, in the course of a retrial.



When a new trial is ordered, the constitutional clock for calculating delay is reset to zero (Gakmakge v. R., 2017 QCCS 3279; JEV, at para. 37; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415, at para. 91). It follows that only the retrial delay can be counted when a s. 11(b) application is brought in that new trial. This is not to say, however, that a court may not consider first‑trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances.


 

The retrial context differs from that of a first trial, since normally the parties have already presented their evidence and arguments a first time. To take account of the specific nature of this context, I propose two factors that can be considered in analyzing the reasonableness of retrial delay. These factors must, of course, be applied flexibly, having regard to the circumstances of each case.

The first factor is the need to prioritize retrials when scheduling hearings. The parties are agreed on this point. Appeal courts and trial courts have also recognized it on a number of occasions (JEV, at para. 38; MacIsaac, at paras. 23‑25; J.A.L., at para. 14; R. v. Richard, 2017 MBQB 11, 375 C.R.R. (2d) 61, at para. 32). Participants in the criminal justice system, particularly the Crown and the court, must act proactively when a new trial is ordered so that dates can quickly be set for that trial, which must normally be prioritized. As mentioned above, the accused also has a role to play in this regard and must take proactive measures for this purpose.

The second factor goes hand in hand with the first: retrials are, as a general rule, to be conducted in less time than first trials. The parties are also agreed on this point. It is commonly recognized that retrials will have a shorter time frame than first trials because the parties’ respective evidence and positions have been presented a first time (JEV, at para. 38; MacIsaac, at para. 27; Masson, at para. 91). However, I note that it is not out of the question for a retrial comparable in length to the first trial to be justified in certain circumstances. For example, a change in strategy by the prosecution or the accused might mean that the work done during the first trial is no longer relevant (JEV, at para. 41; Masson, at para. 89). This is why the analysis of delay must remain contextual and take account of the specific circumstances of each case.

These two factors are grounded in the duty of all participants in the criminal justice system to act in a timely manner. In the retrial context, this means that everyone, and especially the Crown, must ensure that retrials are prioritized when trial dates are set and that retrial delay is as short as possible. Recognition of these factors is based on the objectives of s. 11(b). First, prioritizing retrials and considering that, as a general rule, retrials should be conducted in less time protects the s. 11(b) rights of accused persons and limits the negative consequences of being charged with a criminal offence (Jordan, at para. 20; Morin, at pp. 801‑3). The making of an order for a new trial prolongs the period during which the accused is a person charged with an offence as well as the stress, anxiety and stigma associated with having that status. Indeed, this Court reiterated in Jordan that lengthy delay gives rise to an inference of prejudice to the accused (paras. 34, 54 and 110). Although Jordan eliminates the concept of prejudice as an analytical factor, this concept nonetheless remains central under the new framework, because the setting of presumptive ceilings was in fact based on the presumption that significant delay is prejudicial to an accused (para. 54). Second, the adoption of these two factors reflects recognition of the fact that prolonged delay also causes prejudice to victims, witnesses and the justice system as a whole (para. 110; see also paras. 22‑27). These factors must be assessed contextually, as required by Jordan. In this regard, first‑trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first‑trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the analysis remains contextual and flexible, and it is for the court to make this determination in light of the specific circumstances of each case. The fact that this contextual element is considered does not allow an accused to raise first‑trial delay indirectly. It must be remembered that the constitutional clock for delay is reset to zero when a new trial is ordered and that, from that point on, first‑trial delay can no longer be counted. Giving too much weight to first‑trial delay would be contrary to the principles set out in Jordan, which creates, first and foremost, a prospective framework that encourages parties to act proactively. Where a s. 11(b) motion is brought in the course of a retrial, it is the delay in that trial that remains the focus of the analysis.”