Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Hanan, 2023 SCC 12, May 5, 2023, the accused was charged with a number of offences in December, 2015.  The trial ended on November 28, 2019.  The accused applied for a stay of proceedings to be entered, arguing that a breach of section 11(b) of the Charter had occurred.  The application was dismissed.  An appeal to the Ontario Court of Appeal was dismissed.  The accused appealed to the Supreme Court of Canada.

The appeal was allowed and a stay of proceedings entered. The Supreme Court concluded that the “delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone” (at paragraphs 6 to 9):

First, the parties could not have reasonably relied upon the pre-Jordan state of the law after Jordan had been decided in July 2016. Nor did the parties actually rely upon the pre‑Jordan state of the law, as they consciously scheduled a trial within the Jordan ceiling. Rather, as this Court held in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the focus for delay that accrues after Jordan was decided “should instead be on the extent to which the parties and the courts had sufficient time to adapt” (para. 71). As noted by Nordheimer J.A. in dissent, “only a very small portion of the delay in this case preceded the decision in Jordan and most, if not all, of that delay has been laid at the feet of the defence” (2022 ONCA 229, 161 O.R. (3d) 161, at para. 143). Therefore, the trial judge erred in concluding that the delay in this case was “justified based on the parties’ reasonable reliance on the law as it previously existed” (para. 278).

Second, as Nordheimer J.A. correctly observed, the Crown had “ample time” to adapt to Jordan (para. 148). The delay beyond the ceiling was due not to a lack of time for the system to ameliorate ingrained institutional delays, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay, and despite Jordan having been decided almost two and a half years earlier. Were it not for the Crown’s decision, the trial would have occurred within the ceiling. This clearly demonstrates that there was enough time for the parties and system to adapt.

We conclude that no transitional exceptional circumstance applies in this case. The result is that the net delay of about 35 months is an unreasonable delay contrary to s. 11(b) of the Charter.

Like the majority and the dissent below, we reject the Crown’s proposed “bright‑line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan,at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).