ARTICLE ● Crown ‘handed its gown trying to reduce the consequences of Jordan,’ CLA president says of decision ● THE LAWYER'S DAILY Mar 28, 2022
Crown ‘handed its gown trying to reduce the consequences of Jordan,’ CLA president says of decision
Monday, March 28, 2022 @ 12:52 PM | By Amanda Jerome
In allowing a stay for a fraud conviction, the Ontario Court of Appeal has soundly dismissed the Crown’s suggestion that the court should “revisit the remedies” for s. 11(b) violations. While upholding the framework set out in R. v. Jordan, 2016 SCC 27, the court felt “compelled” to address the language in the Crown’s factum, calling its description of stays “extreme and inappropriate.”
Justice Michael Tulloch, writing for the Court of Appeal in R. v. Charity, 2022 ONCA 226, noted that the “role of the Crown in criminal proceedings has been long established: it must execute its duties ardently but fairly and in a balanced manner.”
“In the present case, the language of the Crown in some instances exceeded this responsibility in a pejorative manner,” he added, noting that in its factum the Crown described “the issuance of stays under Jordan as ‘automatic judicial guillotines, without any nuance or balance, giving the guilty a windfall and the innocent a brushoff and depriving society of the truth.’ ”
The Crown, the court noted, also criticized the remedy as “an abdication of justice.”
“In my view,” Justice Tulloch stressed, “these are not fair characterizations of Jordan and the remedy for unreasonable delay, and the language used by the Crown goes beyond a mere difference in opinion.”
In the decision, released March 21, the judge explained that a “stay of proceedings under Jordan does not issue as of right once the presumptive ceiling has been breached.”
“At that point, the onus shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances,” he added, noting this is “uncontroversial.”
“This approach,” he wrote, “allows for the nuance and balance which the Crown mistakenly argues is missing.”
Justice Tulloch explained that the Crown’s “description of stays in such instances as ‘automatic judicial guillotines’ ” was “extreme and inappropriate.”
The judge acknowledged that “a stay of proceedings precludes a case from being determined on its merits and that this may benefit an accused person while also harming the victims of a crime.” However, he noted “the Crown’s presentation is not fair in that it is one-sided” and “[N]either is it just to the accused (who is presumed innocent), the public, or to the victims to allow a case to continue past reasonable delay, with the tepid comfort of interim measures.
“The Jordan framework is cognizant of this tension,” he wrote, noting that it “accounts for a balanced approach in the assessment of unreasonable delay; however, once that delay becomes unreasonable, there must be finality to the proceedings through a stay.”
Justice Tulloch emphasized that the “spirit of a stay of proceedings for unreasonable delay is not to give innocent parties ‘the brushoff’ or unnecessarily deprive the public of the truth, but rather to uphold public confidence in the administration of justice through a careful and intentional framework.”
“I want to be clear: counsel should not be discouraged or deterred from bringing critical perspectives of the administration of justice before the courts,” he added, noting that “[C]ritical perspectives form part of a healthy justice system.”
“Those critiques, however, must be advanced in a manner that is fair and is not needlessly incendiary. In my view, the Crown’s factum in this matter failed to achieve this balance,” he decided, with Justices Katherine van Rensburg and Ian Nordheimer in agreement.
The Crown used similar wording to criticize Jordan recently in a factum before the Supreme Court of Canada in R. v. Ste-Marie, 2022 SCC 3. As previous coverage in The Lawyer’s Daily noted, Justice Russell Brown said he was “frankly shocked” and “disappointed” by the Crown’s “misguided” written submissions.
Addressing the Crown on Feb. 10, Justice Brown said he was persuaded “more than ever, that as soon as we take away the Damoclesian sword of a stay as a remedy for a breach of the right to a trial within a reasonable time that the culture of complacency will, at least in Ontario, settle right back in.”
In other decisions released the same day as Charity, the Ontario Court of Appeal drew attention to the fact that the Crown had advanced the same argument on remedies to consider other than a stay when it comes to s. 11(b) breaches.
In R. v. Hanan, 2022 ONCA 229, Justice van Rensburg noted that “an argument made in this appeal as well as two other appeals heard the same week, R. v. Charity and R. v. Campbell, the Crown submits that, if this court concludes that there was a violation of the appellant’s s. 11(b) rights, a remedy other than a stay of proceedings should be considered.”
Although the majority dismissed the appeal in Hanan, Justice van Rensburg did note that if a s. 11(b) breach had been found she would have “ordered a stay of proceedings, for the reasons expressed in R. v. Charity ...”
John Struthers, president of the Criminal Lawyers’ Association
Commenting on the court’s decision in Charity, John Struthers, president of the Criminal Lawyers’ Association (CLA), boiled down the Crown’s argument to “a resources issue.”
“The SCC in Jordan actually gave them [the Crown] more time but made it a hard cap,” he said, noting that the “justice system has been seriously underfunded and over utilized for years.”
“If every social problem is going to be tossed into the criminal law hopper, then it would be a good idea to fund it so that matters can be dealt with inside these very generous timelines,” he explained, adding that the “attempt to water down the remedy is to eviscerate the entire point of Jordan.”
Struthers noted that the Supreme Court of Canada “repeatedly tells the provincial attorney generals the law” on Jordan and on bail and “they repeatedly ignore it.”
“The court seemingly has had enough as has the defence bar,” he stressed.
“If drug addiction, drinking and driving, domestic abuse, poverty and all social ills of any nature are all ‘criminal’ matters then defunding legal aid and the courts is going to cause huge problems which they simply don’t want to pay for,” he added.
Struthers also noted that the “pandemic backlog is a tsunami” and the Attorney General has not “culled the cases” or “provided legal aid” and “resources to deal with it.”
“Instead of taking action they [the Crown] want to make Jordan go away,” he said.
“The Crown was handed its gown trying to reduce the consequences of Jordan and will be again,” he stressed.
“There is a line in the sand now. The Attorney General must act and spend money or reduce the system’s appetite,” Struthers added.
The final decision in Charity allowed the appeal from conviction and entered a stay. The appellant, Craig Charity, had been convicted of “defrauding a business partner of $378,491.60.”
According to court documents, the crime “arose out of fraudulent invoices and receipts he tendered as legitimate business expenses.”
Charity was arrested in March 2015, but due to delays, wasn’t convicted by the trial judge, Justice Graham Wakefield of the Ontario Court of Justice, until April 2018. The trial judge’s written reasons weren’t released until August 2018.
Charity appealed to the Ontario Court of Appeal, submitting that Justice Wakefield “erred in dismissing his s. 11(b) application” and also “erred in his analysis under the third branch of R. v. W.(D.),” by “using his disbelief of the appellant’s evidence to bolster the Crown’s proof of guilt.”
The court allowed the appeal “on the basis of a s. 11(b) violation.”
Counsel for the appellant and the Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.