R. v. Hanan, 2022 ONCA 229, 2023 SCC 12 (40097)

The SCC (5:0) allowed the appeal, set aside the convictions and entered a stay of proceedings.

Justices Côté and Rowe wrote as follows (at paras. 1-10):

“This is an appeal as of right from a judgment of the Court of Appeal for Ontario which affirmed the appellant’s convictions by a jury for manslaughter, discharging a firearm with intent to wound, and possession of a loaded restricted firearm without a licence. Two grounds of appeal are raised: first, a violation of the appellant’s right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms that would justify a stay of proceedings and, second, an error in the charge to the jury that would require a new trial. We are of the view that the first ground is dispositive, so we decline to address the second.

The events giving rise to the charges occurred on December 23, 2015. The appellant was charged the next day with various offences. The case was eventually scheduled for trial by jury in November 2018, which both parties agreed would be within the ceiling set by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, on the eve of trial, changes to the Crown’s case threatened to adjourn the proceedings. The defence offered to agree to a trial by judge alone, but the Crown refused. It is not disputed that had the Crown agreed to proceed by judge alone as proposed, the trial would have concluded within the Jordan ceiling. Because the Crown did not agree, the trial judge offered a trial date in June 2019, but defence counsel was unavailable. The trial was therefore rescheduled to the autumn of 2019, beginning on October 28, and it ultimately ended on November 28.

The appellant applied for a stay of proceedings. The trial judge calculated total delay as about 47.5 months. He deducted about 10 months for defence delay before committal for trial, and another 1.5 months as a discrete exceptional circumstance relating to issues with the Crown’s evidence. After finding that the complexity of the case did not warrant further delay, the trial judge concluded that the net delay was about 35 months.

Even though the net delay exceeded the Jordan ceiling, the trial judge denied the stay. Applying a transitional exceptional circumstance, he found that the parties had reasonably relied upon the law as it had been before Jordan was decided. He also suggested that while the parties were aware of Jordan, they had not yet developed a “full understanding of the lessons of Jordan” (2019 ONSC 320, at para. 277 (CanLII)).

In our respectful view, the trial judge erred in holding that a transitional exceptional circumstance applied, and the majority of the Court of Appeal erred in upholding his decision.

First, the parties could not have reasonably relied upon the pre-Jordan state of the law after Jordan had been decided in July 2016. Nor did the parties actually rely upon the pre‑Jordan state of the law, as they consciously scheduled a trial within the Jordan ceiling. Rather, as this Court held in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the focus for delay that accrues after Jordan was decided “should instead be on the extent to which the parties and the courts had sufficient time to adapt” (para. 71). As noted by Nordheimer J.A. in dissent, “only a very small portion of the delay in this case preceded the decision in Jordan and most, if not all, of that delay has been laid at the feet of the defence” (2022 ONCA 229, 161 O.R. (3d) 161, at para. 143). Therefore, the trial judge erred in concluding that the delay in this case was “justified based on the parties’ reasonable reliance on the law as it previously existed” (para. 278).

Second, as Nordheimer J.A. correctly observed, the Crown had “ample time” to adapt to Jordan (para. 148). The delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier. Were it not for the Crown’s decision, the trial would have occurred within the ceiling. This clearly demonstrates that there was enough time for the parties and system to adapt.

We conclude that no transitional exceptional circumstance applies in this case. The result is that the net delay of about 35 months is an unreasonable delay contrary to s. 11(b) of the Charter.

Like the majority and the dissent below, we reject the Crown’s proposed “bright‑line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136). We would therefore allow the appeal, set aside the convictions, and order a stay of proceedings.”