La réoption exige toutefois le consentement du poursuivant, en vertu de l’article 561(1) du Code criminel, mais ce dernier peut poser comme condition à son consentement qu’il y ait renonciation à invoquer les délais occasionnés par ce nouveau choix de l’accusé

R. v. Wookey, 2021 ONCA 68

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[67] Writing for the court, Paciocco J.A. relied upon the passages from Jordan cited above to conclude that the 18-month presumptive ceiling applied in that case. Justice Paciocco rejected a "case-by-case approach" to determine "whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay": Shaikh, at para. 54. He held that such an approach is at odds with the "bright line structure for s. 11(b) cases" meant to displace the Morin approach that engendered uncertainty, complexity, and unpredictability: Shaikh, at para. 54, citing Jordan, at paras. 31-37.

[68] In Shaikh, as in this case, the Crown at trial submitted that it was prejudiced by the late re-election. In that case, the re-election was made after the preliminary inquiry was originally scheduled to proceed; in this case, the accused re-elected on the scheduled commencement date for the preliminary inquiry, but it was agreed upon earlier. The complaint is that a late re-election unfairly shifted the Crown into a much shorter presumptive ceiling, automatically imperilling the case for s. 11(b) purposes.

[69] The Crown need not be exposed to vulnerability in these circumstances. The solution lies in the Crown requiring a waiver by the accused person in exchange for consent to re-elect. As Paciocco J.A. said, at para. 57 of Shaikh:

The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

(Emphasis added)

See also Jordan, at para. 62 (reproduced in para. 64, above).

[70] In this case, the appellant did not offer to waive any delay, nor did the Crown request it. By November 9, 2015, the time of the formal re-election, more than two years had already elapsed from the date on which the Toronto police laid the methylone charges. Defence counsel had put the Crown on notice that delay was an issue. Moreover, Jordan (also a drug prosecution conducted by the Public Prosecution Service of Canada) was argued [page161] in the Supreme Court of Canada on October 7, 2015 and the court had reserved judgment. Still, the Crown required no waiver.

[71] Neither on appeal, nor at trial, did the Crown argue that the appellant's re-election was a "discrete event" capable of justifying the excess in delay within the meaning of Jordan (discussed below). This makes sense: given that the Crown's consent was required to facilitate the re-election in this case, as a litigation event, it could not be said to be either "reasonably unforeseen or reasonably unavoidable": Jordan, at para. 69 [emphasis in original]. It was the opposite, on both measures.