



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacIsaac, 2018 ONCA 650

DATE: 20180718

DOCKET: C63910

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gordon MacIsaac

Appellant

Frank Addario and James Foy, for the appellant

Katie Doherty, for the respondent

Heard: February 21, 2018

On appeal from the conviction entered on April 18, 2017
    and the sentence imposed on May 19, 2017 by Justice Catherine A. Kehoe of the Ontario
    Court of Justice.

Huscroft J.A.:


OVERVIEW

[1]

The appellant was charged with one count of
    aggravated assault arising out of a collision with the complainant during the
    final seconds of a recreational, non-contact hockey game in a senior mens league
    in Ottawa. The complainant suffered severe injuries including lacerations to
    his face, two missing front teeth, and a concussion. The Crowns theory at
    trial was that the appellant delivered a blindside, head-high hit on the
    complainant with intent to injure him, in retaliation for the complainants
    having tripped the appellants teammate earlier in the game. The appellant
    argued that his collision with the complainant was an unavoidable accident.

[2]

The appellant was convicted of the offence, but
    this court concluded that he did not receive a fair trial because the
trial
    judge engaged in impermissible speculative reasoning in reaching her verdict.
    His conviction was
quashed and a new re-trial was ordered:
R.
    v. MacIsaac
, 2015 ONCA 587, 337 O.A.C. 190.

[3]

The appellants re-trial was not scheduled to
    take place for over 17 months following this courts order. The appellant
    brought an application for a stay under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, but his application was
    dismissed by the trial judge and the re-trial proceeded as scheduled. Following
    the re-trial, the trial judge reserved her decision. She released a 206-page
    judgment two months later and the appellant was convicted of aggravated assault
    for a second time.

[4]

The appellant returns to this court and argues
    that the charge against him
should
    be

dismissed for delay. In the
    alternative, he argues that the trial judge erred in convicting him and that a
    new trial should be ordered.

[5]

For the reasons that follow, I conclude that the
    appeal must be allowed, the convictions quashed, and a stay entered. As a
    result, there is no need to consider the other grounds of appeal.

BACKGROUND

Timeline

[6]

The appellant was charged with aggravated
    assault on July 11, 2012. He elected trial in the Ontario Court of Justice and
    was convicted on December 16, 2013, following an eight-day trial.

[7]

On August 31, 2015, this court quashed the
    conviction and ordered a new trial. The appellants counsel was served with a
    summons for the re-trial on November 30, 2015. On February 3, 2016 a ten-day
    re-trial was scheduled to run from February 6 to 17, 2017.

[8]

On August 25, 2016, the appellant brought an
    application for a stay of proceedings under s. 11(b) of the
Charter
. That application was dismissed on October 26, 2016 and the
    re-trial went ahead as scheduled.

[9]

The trial judge reserved her decision following
    the last day of trial, which was February 16, 2017, one day earlier than
    scheduled. On April 18, 2017, the trial judge released her judgment finding the
    appellant guilty of aggravated assault.

The trial judges stay decision

[10]

The trial judge dismissed the appellants
    application for a stay of proceedings under s. 11(b) of the
Charter
. In her reasons she reviewed the entire proceedings, beginning with
    the first trial. She found that the net delay on the first trial was 17 months
    to the end of sentencing, thus below the presumptive ceiling of 18 months
    established by
Jordan
. Similarly, the re-trial
    also was expected to fall below
Jordan
s
    presumptive 18-month ceiling.

[11]

The trial judge made the following findings
    concerning the second trial:

·

August 31, 2015  re-trial ordered

·

October 16, 2015  Crown decides not to seek
    leave to appeal to Supreme Court

·

November 6, 2015  summons for re-trial issued

·

November 6, 2015 to November 30, 2015  defence
    delay of three weeks incurred because appellant could not be served due to
    invalid address

·

December 1, 2015  summons served on appellants
    counsel

·

December 2, 2015 to February 3, 2016  defence
    delay of one month incurred for adjournment requests concerning the pre-trials
    and related issues; Crown delay of one month incurred to allow for consultation
    with complainant

·

February 3, 2016 to February 6, 2017 
    institutional delay

[12]

The trial judge calculated delay from issuance
    of the summons for re-trial on November 6, 2015 until the last day scheduled
    for trial, February 17, 2017, a period of over 15 months. She did not take into
    account the time that would be required to write her judgment, which in the
    event took two months.

[13]

The trial judge subtracted seven weeks of delay that
    she attributed to the defence, arriving at a net delay of 13 months and 1 week
     well under the presumptive ceiling of 18 months. The trial judge concluded
    that the defence could not establish that the delay was in any event
    unreasonable, and so dismissed the appellants s. 11(b) application.

THE ARGUMENTS ON APPEAL

The appellant

[14]

The
    appellant contends that the delay in the re-trial was over 19 months, and so
    exceeds the presumptive 18-month ceiling established in
Jordan
for
    proceedings in the provincial court. The appellant submits that there are no
    exceptional circumstances and that a stay should be granted.

[15]

The
    appellant argues that the trial judge erred in calculating the total and net
    delay in three ways:

1.

by failing to
    consider the Crowns obligation to expedite a re-trial;

2.

by discounting
    delay from the time this court ordered a re-trial until a summons was issued;
    and

3.

by
    misclassifying essential steps in the trial process as defence delay.

[16]

The
    appellant does not accept that either the period during which the Crown was
    considering appealing this courts first decision to the Supreme Court or the
    period during which the trial judge reserved her judgment are exceptional
    circumstances that should be deducted from the net delay.

[17]

In
    addition, the appellant argues that the transitional framework for cases
    already in the system when
Jordan
was decided cannot save this case
    because the delay would have been unreasonable under the pre-
Jordan
case law. The
Morin
guidelines were that 8-10 months of institutional
    delay was tolerable: see
R. v. Morin
, [1992] 1 S.C.R. 771, at p. 799.
    In this case, the time between setting the second trial date and the start of
    the trial was 12 months. Moreover, the
Morin
guidelines had to be
    adjusted downward because this was a re-trial, and as a result should have
    taken place faster than a first trial. The appellant submits that the trial
    judge erred in looking for proof of prejudice rather than inferring prejudice
    from the total delay in this case.

[18]

Finally,
    the appellant submits that the delay was unreasonable even if it fell under the
    presumptive ceiling of 18 months, because neither the courts nor the Crown
    fulfilled their obligation to schedule the re-trial as soon as possible.

The Crown

[19]

The Crown
    submits that delay in completing the re-trial did not exceed the 18-month presumptive
    ceiling and that the delay was not unreasonable in any event.

[20]

The Crown
    concedes that the trial judge should not have deducted seven weeks for defence
    delay. The Crown accepts that the total delay on the re-trial was 19 months, 2
    weeks, but submits that resulting delay was only 15 months, 2 weeks, once the
    delay for two exceptional events is deducted. The first is the seven-week
    period during which the Crown was considering an appeal to the Supreme Court
    following this courts decision ordering a re-trial. The second is the two-month
    period during which the trial judges decision was under reserve.

[21]

The Crown
    submits, further, that even if the 18-month presumptive ceiling established by
Jordan
was exceeded, the presumption of unreasonableness is rebutted in the
    circumstances of this transitional case. The Crown contends that although the
    case was not among the most complex, it was a lengthy provincial court trial
    and required detailed consideration by the trial judge. The delay was not
    unreasonable under the
Morin
guidelines and the Crown took steps to
    minimize the delay in any event.

DISCUSSION

Overview

[22]

The
Jordan
methodology has been canvassed by this court in several cases. See e.g.,
R.
    v. Jurkus
, 2018 ONCA 489;
R. v Gopie
, 2017 ONCA 728, 356 C.C.C.
    (3d) 36;
R. v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433; and
R.
    v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401. There is no need to
    rehearse it here. It suffices to say that, in the usual case, total delay is
    measured from the date the charge is laid to the end of the trial. Defence
    delay is then subtracted from this period to determine the net delay. If the
    net delay falls above the presumptive ceiling the delay is presumptively
    unreasonable, but the Crown may rebut this presumption by establishing that
    there are exceptional circumstances. Conversely, if the net delay falls below
    the presumptive ceiling, then the onus is on the defence to show that the delay
    is unreasonable. When charges pre-date
Jordan
, the framework must be
    applied flexibly and contextually, taking into account the parties reliance on
    the previous state of the law.

[23]

Unlike
Jordan
,
    however, this case concerns delay in the context of a re-trial rather than a
    first trial. This is no small difference. The
Jordan
principles must
    be applied in a manner consistent with the Crowns duty to re-try cases as soon
    as possible.

[24]

This duty is
    not new. It was underscored by this court in
R. v. Yakymiw
(1993), 68
    O.A.C. 237 (C.A.), at para. 4, in which the court referred to an obligation to
    bring the matter to trial expeditiously following a decision setting aside a
    stay; in
R. v. Satkunananthan
(2001), 152 C.C.C. (3d) 321 (Ont. C.A.),
    at para. 55, in which the court said that it was incumbent on the Crown to
    take all necessary steps to ensure that [a] third trial commenced without
    further delay following a mistrial at the first re-trial; and in
R. v.
    Brace
, 2010 ONCA 689, 104 O.R. (3d) 32, at para. 16, in which the court
    emphasized the need to be cognizant of an accuseds s. 11(b) rights when
    setting a re-trial date following a mistrial.

[25]

Of course,
    the Crown is not the only duty-bound actor in the process. As the Supreme Court
    has emphasized, every actor in the justice system has a responsibility to
    ensure that an accused is brought to trial within a reasonable time: see
Jordan
,
    at para. 137;
R. v. Cody
, 2017 SCC 31, [2017] 1 S.C.R.
    659, at para. 1.

[26]

This case
    was argued on the basis of the parties agreement that the 18-month presumptive
    ceiling applies to the re-trial, and that the onus was on the appellant to establish
    that the delay was unreasonable if it did not exceed the presumptive ceiling.

[27]

In my
    view, the 18-month presumptive ceiling established for a first trial is too
    long in the circumstances of a re-trial. Re-trials must receive priority in the
    system, and in the normal course re-trials in the Ontario Court of Justice
    should occur well before
Jordan
s 18-month presumptive ceiling. It may
    be that a lower presumptive ceiling is appropriate for re-trials.

[28]

We heard
    no argument on this point and it would not be appropriate to say anything more
    in the context of this case. This case was argued on the assumption that the
    18-month presumptive ceiling applies, and I propose to deal with it on this
    basis. However, the
Jordan
criteria must be understood in the context
    of the Crowns duty to re-try cases as soon as possible.

[29]

I begin by
    reviewing the considerations raised by the parties concerning the calculation
    of delay. I conclude that the delay in this case either exceeds the presumptive
    18-month ceiling or is unreasonable in any event. In either case, the appeal
    must be allowed and a stay must be granted.

Calculation of delay

[30]

Jordan
provides that delay is measured from the date a charge was laid (para.
    47). It does not address the date from which delay should be measured in the
    case of a re-trial.

[31]

The trial
    judge concluded that the clock did not begin to run until the summons for
    re-trial was issued, November 6, 2015, rather than the date this court ordered
    a re-trial, some nine weeks earlier on August 31, 2015. She erred in doing so.
    The right to be tried within a reasonable time arises on being charged with an
    offence. This courts order quashing the appellants conviction left him in the
    position of being a person charged with an offence: see
R. v.

Potvin
,
    [1993] 2 S.C.R. 880, at p. 908. Accordingly, the clock should have run from the
    date of this courts decision.

[32]

When did the clock stop
    running?

[33]

In the case of a first trial,
Jordan
provides that the clock runs until the actual or anticipated end of trial: at
    para. 47. In the case of a jury trial, the end of the trial is essentially
    contemporaneous with the rendering of the verdict. If the trial is by judge
    alone, whether in the Superior Court or the Ontario Court of Justice, there may
    be a more significant period between the end of the trial and the verdict, when
    the decision is under reserve.

[34]

The
    appellant argued that the period during which a decision is under reserve should
    be counted in calculating total delay, while the Crown argued that it should
    not.

[35]

Prior
    to
Jordan
, the time a judgment was under reserve was typically
    considered to be part of the inherent time requirements of a case:
R. v.
    Schertzer
, 2009 ONCA 742, 255 O.A.C. 45, at para. 114, leave to appeal
    refused [2010] S.C.C.A. No. 3; e.g.
R. v. Lamacchia
, 2012 ONSC 2583,
    at para. 7;
R. v. Ferguson
(2005), 24 M.V.R. (5th) 47 (Ont. S.C.), at
    para. 213, leave to appeal refused 2008 ONCA 764, 69 M.V.R. (5th) 18. However,
    some judicial delays in rendering a decision were considered unreasonable and
    warranted a stay. Most notably, in
R. v. Rahey
, [1987] 1 S.C.R. 588,
    the Supreme Court was unanimous that an 11-month delay to issue a decision on a
    motion for a directed verdict constituted an infringement of s. 11(b). See also
R. v. Milani
, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 28, leave to
    appeal refused [2014] S.C.C.A. No. 426.

[36]

The
    appellants stay application was heard prior to commencement of the re-trial,
    and the trial judge used the final day scheduled for the re-trial  February
    17, 2017  as the end date for calculating total delay. As it happened, the
    trial ended one day earlier than expected and the appellant was not convicted
    until over two months later  April 18, 2017  when the judgment was delivered.

[37]

Jordan
did not address whether the time a judgment is under reserve in included in the
    calculation of total delay and appears to have left the matter open. On the
    view I take it is not necessary to resolve the issue of reserve time for
    purposes of this case, and I would leave the issue for resolution in a future
    case, with a fuller evidentiary record and argument.

[38]

If the time
    the decision was under reserve is included, the total delay runs from August
    31, 2015 to April 18, 2017  just over 19 months. If reserve time is not
    included, total delay is just over 17 months.

[39]

On the
Jordan
approach, once total delay is known, any delay attributable to the defence must
    then be subtracted to calculate the net delay:
Jordan
, at para. 60.

[40]

There is
    no such defence delay in this case. Although the trial judge attributed seven weeks
    of delay to the appellant,

including three weeks of delay because of
    problems serving the summons for re-trial and four weeks because of adjournment
    requests concerning the pre-trials and related issues, the Crown fairly
    concedes that these attributions were in error. The appellant was not
    responsible for difficulties encountered in serving the summons for re-trial,
    nor did the defence take illegitimate actions in responding to the re-trial
    that caused delay.

[41]

Accordingly,
    net delay is unaffected by defence delay. It is over 19 months, if reserve time
    is included; it is over 17 months if it is not. I will consider the matter
    under both scenarios.

As I explain below, assuming the presumptive
    ceiling is 18 months, the net delay in the first scenario is above the ceiling
    while the net delay in the second scenario is not. However, the delay was
    unreasonable under either scenario and a stay must be granted.

The first scenario: if delay
    is above the presumptive ceiling, it is unreasonable

[42]

Jordan
dictates that net delay above the presumptive ceiling is unreasonable unless
    the Crown can establish the presence of exceptional circumstances that rebut
    the presumption (para. 47). Exceptional circumstances are events that are
    either reasonably unforeseen or reasonably unavoidable, and cannot reasonably
    be remedied by the Crown once they arise:
Jordan
, at para. 69. As the
    Crown points out in this case, exceptional circumstances need not be rare:
Jordan
,
    at para. 69. Nor did
Jordan
establish an exhaustive list of
    circumstances that might qualify as exceptional; on the contrary, the court
    left the determination of exceptionality to the trial judges good sense and
    experience: at para. 71.

[43]

Exceptional
    circumstances generally fall into two categories: discrete events and
    particularly complex cases:
Jordan
, at para. 71. In addition, a
    transitional exceptional circumstance may arise if, as here, a case was already
    in the system when
Jordan
was decided:
Jordan
, at paras.
    94-98.

[44]

A discrete
    exceptional event must be either reasonably unforeseen or reasonably
    unavoidable, and something that cannot reasonably be remedied by the Crown once
    it arises: see
Jordan
, at para. 69. Discrete exceptional events may
    include, but are not limited to,
medical or family emergencies,
    the recantation of a witness requiring the Crown to change its case, or the
    appointment of the accuseds counsel to the bench:
Jordan
, at paras. 72-73;
Cody
, at para. 49. The
    delay caused by such events is deducted from the net delay to the extent it
    cannot be reasonably mitigated by the Crown and the justice system:
Jordan
, at paras. 73, 75;
Cody
, at para. 48.

[45]

The Crown
    submits that there are two discrete exceptional events in this case: the time
    taken while the decision was under reserve and the time taken to seek leave to
    appeal the decision of this court to the Supreme Court.

Delay while the judgment was
    under reserve

[46]

The Crown
    submits that time the decision was under reserve was a discrete exceptional
    event because [t]he extraordinary length and scope of the trial judges
    reasons evidence that a reserve was unavoidable in this case.

[47]

I would
    reject this submission.

[48]

This was a
    vigorously contested, multi-day and witness trial. That time is required to
    provide the parties with reasonably intelligible reasons the trial judge
    considers sufficient to provide a basis for meaningful appellate review is to
    be expected. It is not, in itself, a discrete exceptional event, nor does it
    become such an event in this case by virtue of the length of the reasons
    provided or the issues involved.

Delay to consider seeking leave to appeal to the Supreme Court

[49]

The Crown
    was entitled to seek leave to appeal the decision of this court ordering a
    re-trial and had 60 days in which to do so:
Supreme Court Act
, R.S.C.,
    1985, c. S-26, s. 58(1)(a). The Crown submits that the nine-week period during
    which it considered seeking leave to appeal to the Supreme Court was another
    discrete exceptional event.

[50]

There is
    no merit to this submission.

[51]

The
    decision whether to seek leave to appeal to the Supreme Court is not an
    unforeseeable or unavoidable event of the sort contemplated by
Jordan
.
    On the contrary, it is a routine matter that arises in every case in which an
    appeal from conviction succeeds. A decision allowing an appeal and ordering a
    re-trial may well be unexpected in particular circumstances by the Crown, but
    it is not an unforeseeable event on that account. It is always a possibility
    and the Crown must be prepared to consider its appeal option in every case.

[52]

The duty
    to re-try a case as soon as possible imposes no great burden on the Crown, even
    assuming there may be good reason to consider seeking leave to appeal to the
    Supreme Court in a particular case. It would be a relatively simple matter to take
    the steps required to set a re-trial in train while a leave application is
    being considered.

The transitional exceptional
    circumstance

[53]

The Crown
    further submits that if delay exceeds the presumptive ceiling, it was
    reasonable in the circumstances of this transitional case.

[54]

I would
    reject this argument.

[55]

In
Gopie
,
    at para. 178, this court outlined the relevant criteria informing the
    transitional exceptional circumstance analysis, namely: (i) the complexity of
    the case; (ii) the period of delay in excess of the
Morin
guidelines;
    (iii) the Crowns response, if any, to any institutional delay; (iv) the
    defence efforts, if any, to move the case along; and (v) prejudice to the
    accused.

[56]

These
    considerations do not avail the Crown in this case. This was a relatively
    straightforward case, as I have noted, and the delay would not have been
    reasonable under the
Morin
guidelines. I accept that the Crown took
    some steps to minimize the re-trial delay, but ultimately it stuck with its
    request for 10 consecutive trial days, knowing from information provided by the
    trial co-ordinator that this meant pushing back the trial date one full year. This
    was simply inappropriate in the context of a re-trial involving a charge that
    had been laid in 2012  over four years earlier.

[57]

In summary, the delay in this case is not affected by
    either exceptional circumstances or transitional exceptional circumstances. If
    time under reserve is included in the calculation of delay, then the net delay
    is over 19 months and exceeds the presumptive ceiling. The Crown has not rebutted
    the presumption of unreasonableness. On the first scenario, the delay is
    unreasonable and a stay must be granted.

The second scenario: if delay is below the presumptive ceiling, it is
    unreasonable

[58]

Under the second scenario, in
    which the time under reserve is not included in the calculation of delay, the
    net delay is over 17 months. In my view, even under this second scenario where
    the burden is on the defence to show that the delay is unreasonable, a stay is required.

[59]

As a preliminary matter,
I reiterate that
    re-trials must receive priority in the system, and that this should normally
    result in a delay well under the 18-month presumptive ceiling established in
Jordan
.
    However, as I indicated above, this appeal was argued on the basis of the
    parties agreement that the 18-month presumptive ceiling applies and I will
    resolve it on this basis.

[60]

When delay falls below the
    presumptive ceiling,
the onus is on the
    defence to establish that the delay is unreasonable despite not exceeding the
    ceiling:
Jordan
, at para. 82. The
    defence must establish (1) it took meaningful steps that demonstrate a
    sustained effort to expedite the proceedings, and

(2) the case took
    markedly longer than it reasonably should have.

[61]

The
    defence burden is met in the circumstances of this case. The record reveals
    that appellants trial counsel sought the earliest possible dates for the re-trial.
    For its part, the Crown sought ten consecutive days for trial. That was a
    choice it was entitled to make, but it was a choice with consequences. Large blocks
    of time will often be unavailable when setting trial dates, and in this case
    ten consecutive days were not available, according to the trial co-ordinator, for
    one full year from the time the Crown sought to set the date.

[62]

On August
    9, 2016, after the appellant filed his application for a stay, Crown counsel
    informed the trial co-ordinator that the appellant had filed the stay
    application and inquired as to the availability of an earlier date. However, the
    trial co-ordinator informed Crown counsel that no earlier date was available
    for a ten-day trial, and the Crown took no further action.

[63]

In these
    circumstances, it is no answer to the appellants delay argument that the trial
    co-ordinator would not agree to provide earlier dates. The Crown cannot simply
    take no for an answer in the context of a re-trial. A greater sense of
    urgency is required, lest the culture of complacency the court warned of in
Jordan
be condoned.

[64]

The
    Crowns duty to re-try the appellant as soon as possible meant that the Crown
    could not maintain its preference for consecutive trial dates. It had to make
    whatever arrangements were necessary to commence and complete the re-trial as
    soon as reasonably possible, even if that required accepting trial dates it
    considered suboptimal.

[65]

The bottom
    line is this: this was re-trial on an aggravated assault charge that was over four-years
    old. The appellant was already put through one trial and faced another. His re-trial
    should have been prioritized, but it was not. The consequence is that the
    appellants right to be tried within a reasonable time has been breached.

CONCLUSION

[66]

I would
    allow the appeal, quash the conviction, and enter a stay.

Released:

DW                                                  Grant
    Huscroft J.A.

JUL 18 2018                                    I agree
    David Watt J.A.

I
    agree David Brown J.A.


