R. v. Shaikh, 2019 ONCA 895
[47] Jordan established two periods for determining whether net delay is presumptively unreasonable: 18 months for trials in the provincial courts, and 30 months for trials in the superior courts: at para. 32. For more than two years, Mr. Shaikh's case proceeded as if it was a superior court matter, until his re-election to trial before the provincial court on November 28, 2016. This raises the question of whether the 30-month presumptive period applicable in superior court proceedings applies, or the 18-month period applicable to provincial proceedings. [page378]
[48] If the 30-month presumptive delay period is to be applied, Mr. Shaikh's appeal would be easily dismissed. The delay would not be presumptively unreasonable since the total delay was 30.2 months, and Mr. Shaikh has correctly conceded that the 49 days between January 18, 2016 to March 7, 2016 is defence delay (the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel to the first date set for preliminary inquiry). As explained, under the Jordan regime, this defence delay is to be deducted from the total delay in arriving at the net delay that is to be used in determining whether the delay is presumptively unreasonable. Even leaving aside other contentious periods, the maximum net delay would therefore be 870 days (or 28.6 months), which is less than the 30-month period of delay required to trigger the presumption of unreasonable delay. Mr. Shaikh has offered no evidence and made no argument that, in his case, a presumptively reasonable period of delay should nonetheless be found to contravene s. 11(b).
[49] However, on the authority of Jordan, the 30-month presumptive ceiling does not apply in this case. The 18-month presumptive ceiling does. The Jordan majority described how the appropriate ceiling is to be selected, at para. 46:
At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
(Emphasis added)
[50] Later in the decision, at para. 49, the Jordan majority repeated this:
We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.
[51] Then again in footnote three of the majority decision:
While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case. For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.
[52] Here, the re-election to provincial court did not occur after the preliminary inquiry, but before it commenced. Applying the standards expressed in Jordan, the 18-month period applies.
[53] I appreciate that Jordan did not involve a re-election, and so this issue was not directly before the court. However, Jordan was not about delay in a provincial court trial either. In the [page379] interests of certainty and simplicity, the majority nonetheless established an authoritative framework for provincial court trials as well, setting a presumptive period of unreasonable delay of 18 months. In the circumstances, I do not feel at liberty to interpret the criterion specifically identified by the Jordan majority as a passing comment when it is manifest that the majority was delineating how its presumptive delay framework was to apply.
[54] I understand the attraction of the appeal Crown's submission that, instead, a case-by-case approach should be used to determine whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay. The difference in substance between a re-election after a four-day preliminary inquiry, and a re-election during the scheduled dates but before the preliminary inquiry is completed does seem negligible. However, it would grate against the objective of Jordan to evaluate which presumptive ceiling applies on an after-the-fact, case-by-case basis during s. 11(b) motions. The Jordan majority was attempting to establish a bright line structure for s. 11(b) cases using a framework that "accounts for case-specific factors": at para. 5. The Jordan majority established the regime it did to overcome the previous, "highly unpredictable", "unduly complex" and endlessly flexible approach that does little to prevent delay by giving clear guidance in advance: Jordan, at paras. 31-37. The formula thrice stated in Jordan for when the 30-month period applies to provincial court trials must therefore be taken at face value and used as the bright line measure. Since re-election occurred before and not after the preliminary inquiry, this case falls on the wrong side of that bright line for the Crown.
[55] In advocating for a 30-month period of presumptive delay, the appeal Crown relied upon the decision in R. v. S. (D.M.), [2016] N.B.J. No. 320, 2016 NBCA 71, 353 C.C.C. (3d) 396. In S. (D.M.), on the date set for the preliminary inquiry, the accused waived his preliminary inquiry and re-elected to be tried in the provincial court. The parties agreed that in these circumstances, the presumptive ceiling was 30 months. Quigg J.A. accepted this position, commenting, at para. 17:
In my view, when an accused makes an election and requires the Provincial Court to schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived.
[56] With respect, the case-by-case approach applied in S. (D.M.) cannot be squared with the language or ethic of Jordan. This issue does not appear to have been fully litigated before the New Brunswick Court of Appeal because of the agreement between the [page380] parties, and the guidance provided by the Jordan decision as to when the 30-month presumptive period applies in provincial court trials may not have been brought to the court's attention.
[57] 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.
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