Aggravated assault

Ontario Superior Court Orders Stay of Proceedings After 40-Month Delay

Written on behalf of Barrison Law
Hour glass representing a stay in proceedings

In the Canadian justice system, criminal proceedings are expected to unfold with a sense of urgency to ensure a timely resolution and justice is reached for all parties. However, the reality often falls short of this ideal. The issue of delay has become a persistent concern within the Ontario court system. When cases are left to languish in the system, both complainants and accused individuals are left in a state of limbo.

In a recent case before the Ontario Superior Court of Justice, the accused asked the court to dismiss criminal proceedings against him due to a delay of over 40 months. The Court assessed the circumstances surrounding the delay and explained the test for determining whether such a delay could be justified.

Applicant seeks to have criminal proceedings dropped after 1,227-day delay

In the case of R. v. Tebbs, the applicant/defendant (the “applicant”) sought to dismiss the criminal proceedings against him due to delay. He claimed that the “severe” delay in bringing his case to trial violated his rights under section 11(b) of the Canadian Charter of Rights and Freedoms, which protects an accused’s right to have a trial within a reasonable time.

Although the applicant was initially charged on January 5, 2017, the matter was set for trial from January 8 to February 5, 2024. Therefore, the net delay had been 1,227 days, equivalent to 40 months and 27 days. The lawyer for the applicant argued the delay in this case was “nearly 11 months past the presumptive ceiling of 30 months,” as set out by the Supreme Court of Canada in R v. Jordan.

The matter was brought before the Ontario Superior Court of Justice, which noted, “the delay is clearly problematic and needs to be addressed. It is well beyond what s. 11(b) of the Charter permits unless there is some further explanation.” As such, the Court was asked to determine whether this was a “particularly complex” case and whether “exceptional circumstances” were applicable.

Delay may be reasonable when case is “particularly complex”

Referring to the decision of R v. Jordan, the Court explained that “unreasonable delays can be made reasonable in the “exceptional circumstance” that the case before the Court is “particularly complex”. A case may be particularly complex based on the nature of the evidence or the issues in dispute or if it requires an inordinate amount of trial or substantial preparation time such that the delay is justified. However, the Court acknowledged that few cases meet this test.

The Court determined that the case before it was not “particularly complex” factually, as the appellant faced charges of “aggravated assault, choking, forcible confinement, and robbery regarding allegations that, following a consensual sexual encounter, he assaulted, choked and robbed the Complainant, a sex worker.” The prosecution’s case rested purely on the Complainant’s testimony, and potential expert witnesses were “not predicted to add any elements of complexity to the trial.”

Court backlog cannot fall on accused to shoulder

Regarding “exceptional circumstances,” the prosecution identified general factors to be considered, including the overall backlog of court cases and COVID-19-related delays. While the Court accepted that the COVID-19 pandemic resulted in an exceptional circumstance temporarily while the courts were shut down, in this case, the substantial portion of delay had occurred after the re-opening of the courts. As such, the delay in this case was “not a price that an accused person should have to pay.”

The Court acknowledged the issue of court backlogs but stated:

“While it is not the Crown’s fault that the backlog has occurred, it is certainly not the [a]pplicant’s. The extra months of waiting for trial is a societal issue. A modest exception beyond Jordan’s presumptive ceiling might be reasonable for the [a]pplicant to bear, but nearly a year’s delay time – that is, a year beyond what the Supreme Court has said the system cannot go beyond – is a state-imposed burden that section 11(b) of the Charter guarantees will not fall on the [a]pplicant to shoulder.”

Court orders stay of proceedings due to unjustifiable delay bringing case to trial

The Court referenced the recent case of R. v. Harrison, in which the delay involved was due to all parties placing the case on the back burner. In contrast, the present case was not left dormant and was actively pursued by the applicant’s counsel, who did not receive responses to their inquiries from Spring 2022. Email correspondence from the Crown showed that an earlier trial date was available, but due to scheduling conflicts, trial dates for September were requested. The court’s administrative office didn’t answer this request, and as such, a trial date years later was the only option left. The Court raised the point that none of these communications were shared with the applicant or his counsel, and the mitigation that the applicant deserved to have explored “was prevented by institutional unresponsiveness.”

After its analysis, the Court determined that the applicant’s rights under section 11(b) of the Charter were “breached in a case that is not particularly complex and under circumstances that cannot be characterized as exceptional.” As a result, the Court found the Crown could not justify the unreasonable delay in this matter and ordered a stay of the proceedings.


Contact the Oshawa Criminal Defence Lawyers at Barrison Law for Trusted Advocacy in Charter of Rights and Freedoms Cases

The skilled criminal defence lawyers at Barrison Law provide comprehensive advice to clients facing various criminal charges, including aggravated assault and sexual assault, across Oshawa, the Greater Toronto Area, and Durham Region, including Pickering, Ajax and Whitby. Our office is conveniently located across the street from the Durham Consolidated Courthouse, and we offer a 24-hour phone service for your convenience. If you are seeking exceptional representation against criminal charges, we can help. Contact us online or call our office at 905-404-1947 to learn how we can assist you.