Pennington v R, 2020 SKQB 198
[30] One critical distinction is that Gryba was decided before the release of the judgments in Jordan and Cody. Gryba was not faced with, and could not possibly contemplate, the presumptive ceilings established by the Supreme Court. As a consequence, Gryba has little, if any, impact on the consideration of delay. As pointed out in R v Bulhosen, 2019 ONCA 600 at para 97, 377 CCC (3d) 309 [Bulhosen]:
[97] Other than in transitional cases, …, pre-Jordan constructs have little utility in the Jordan analysis.
(b) A Review of the Case Authorities
[33] Turning to a consideration of the legal authorities, the case law offers overwhelming support for the view that delay is calculated from the date of the swearing of the Information.
[34] While there appear to be relatively few cases in Saskatchewan on point, an important example is found in R v Pastuch, 2017 SKQB 211 [Pastuch].
(d) Consideration of Jordan’s Goals
[54] A consideration of the core principles enunciated in Jordan and Cody also support the conclusion that delay should be calculated from the date the Information was sworn.
[55] As pointed out by Strathy C.J.O. in Bulhosen, the Supreme Court intended these decisions to be a siren call for change in the criminal justice system. He held, at paras. 98-99:
[98] Jordan’s goal was to promote behaviour modification and predictability by encouraging parties to “manage ‘each case in advance to achieve future compliance with consistent standards’”: Jordan, at para. 35, quoting Michael A. Code, Trial Within a Reasonable Time: A Short History of Recent Controversies Surrounding Speedy Trial Rights in Canada and the United States (Scarborough, Ont.: Carswell, 1992), at p. 117 (Emphasis in original).
[99] In so doing, Jordan departed from Morin’s [R v Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771] retrospective inquiry, which focused on institutional delay and classifying stages of a case into categories of delay that could or could not be visited upon the Crown: see R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 46. Instead, Jordan relies on presumptive ceilings. As Jordan points out, particularly at paras. 52-56, the presumptive ceilings take account of the factors that “can reasonably contribute to the time it takes to prosecute a case”: para. 53. This includes the “inherent time requirements of the case”, institutional delay in the provincial court and in the superior court following committal for trial and “the increased complexity of criminal trials since Morin”: para. 53. The Supreme Court also stressed that the presumptive ceiling includes a public interest component by giving clarity and assurance concerning the duration of trials, thereby building public confidence in the administration of justice. [Emphasis added]
[56] In my ruling on the First Indictment reported at 2019 SKQB 319 at paras. 7-8, I attempted to convey a similar message to that sent by Bulhosen:
[7] [In Jordan] the court lamented the criminal justice system had lost its way (para. 29) and it expressed concern that a culture of complacency regarding delay had grown (paras. 40-41). This was troubling, the court said, because timely trials are constitutionally required (para. 141) and the failure to deliver this erodes public confidence in the administration of justice (para. 22). In fact, this failure leads to contempt for court procedures (para. 25) and presents a threat to the legitimacy of our system:
[26] Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” (Askov [1990 CanLII 45 (SCC), [1990] 2 SCR 1199], at p. 1221).
[8] Therefore, Jordan held a change in culture was necessary (paras. 5, 44 and 112) and the court imposed specific time limits for trials to occur. While the court acknowledged the imposition of presumptive ceilings might cause discomfort in the short term (para. 134), it held this was necessary given the indisputably high stakes (para. 3). [Emphasis added]
[57] Jordan and Cody provide unmistakable direction to “promote behaviour modification and predictability”. In those cases, a presumptive ceiling was defined in order to achieve those goals. The Crown’s position – that delay in this case should be calculated from a different date, and a date the Crown chooses – is antithetical to those goals. The goals of predictability, clarity and consistency are not served by allowing the Crown to re-start the Jordan clock any time it chooses to exercise its discretion to file a direct indictment.
[58] It is clear courts have consistently ruled that all cases must now be conducted in compliance with the principles set out in Jordan. Courts have not created a special category for computer-based offences (see, for example, R v Swanson, 2017 ONSC 710 and R v Lee, 2017 ONSC 4862) or any other offences.
[59] Further, in light of the unmistakable direction given by Jordan and repeated in Cody, it is not the role of trial courts to carve out new exceptions. The doctrine of stare decisis demands adherence to those rulings and if the presumptive ceilings are to be altered in some fashion, or in some circumstances, that task properly falls to an appellate court; see, for example, R v Saskatchewan Federation of Labour, 2013 SKCA 43 at paras 60 and 68, 361 DLR (4th) 132.
(e) Summary
[60] In the end analysis, the consistent weight of the case authorities establishes Jordan delay is calculated from the date of the swearing of the Information. The filing of a direct indictment does not, in my respectful view, re-start the clock.
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