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The Supreme Court held that a 35-month net delay breached s. 11(b) of the Charter, rejected a transitional exceptional circumstance, and ordered a stay.
Net delay exceeded the Jordan presumptive ceiling but the trial judge's alternative finding that the delay was justifiable under the transitional exceptional circumstance was correct; although the trial judge erred in treating the delay as justified by particular complexity, deference to factual findings and the contextual assessment of pre-Jordan reliance, limited Crown institutional delay, defence complacency in pursuing disclosure and moving the matter along, minimal prejudice and the gravity of the offences support dismissal of the s.11(b) stay and affirming the convictions.
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Majority held there was no s.11(b) breach because the trial judge correctly characterized and apportioned defence delay and permissibly concluded that the transitional exceptional circumstance justified delay exceeding the Jordan ceiling; majority also held the jury charge, read as a whole, properly instructed on burden and W.(D.) and that the 15‑year global sentence was fit; appeal dismissed.
Source excerpt
La Cour suprême a accueilli l’appel du ministère public, annulé le sursis prononcé en appel et renvoyé l’affaire au banc d’appel pour les autres moyens.
The Supreme Court held that a late re-election of mode of trial could be treated as defence delay, and dismissed the appeal, upholding the convictions.
The court revoked a prior bail order and granted Mr. Lai new bail pending his Supreme Court of Canada appeal, finding the s. 679(3) criteria were met.
Appeal from conviction dismissed. The Court held the trial judge did not err in finding the delay justified under Jordan’s transitional exceptional circumstance.
The post-verdict delay, measured from verdict (June 27, 2018) to sentencing (February 26, 2019), exceeded the five-month presumptive ceiling but the Crown justified three months of that delay as attributable to the dangerous offender assessment (an exceptional circumstance) and the remaining net delay was just under five months; therefore there was no s.11(b) breach and the appeal is dismissed.
Source excerpt
Court of Appeal dismisses the Crown’s appeal and upholds a stay for unreasonable trial delay under s. 11(b), holding the trial judge’s delay allocation was mostly correct.
The Court held the transitional exceptional circumstance applies because the delay largely reflected reasonable reliance on pre-Jordan practices and institutional constraints; after reallocation of delays the institutional/Crown delay fell within Morin guidelines and the total circumstances did not justify a stay under s.11(b), so the convictions were upheld.
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