In R. v. Burg and Khan, 2021 MBCA 77, September 15, 2021, the accused were charged with a number of drug-related offences. They elected to be tried in the Provincial Court.  After a trial date was set, the Crown filed a direct indictment. The Crown advised the presiding Queen’s Bench Judge that it had filed the direct indictment out of concern that the Jordan timelines would be breached if the matter remained in the Provincial Court.  The Queen’s Bench set trial dates that were within the Jordan timelines for the Superior Courts.  

The accused sought to have the direct indictment quashed. The application was dismissed. They were convicted. They appealed. 

The Manitoba Court of Appeal indicated that the “accused contend that where, as here, a direct indictment is filed for the sole purpose of moving a case from the Provincial Court (the PC) to the superior court, namely the Court of Queen’s Bench (the QB), in order to extend the presumptive ceiling and allow more time for the prosecution, there is a violation of the principles of fundamental justice and, thus, a breach of section 7.  The accused argue that there was a section 7 breach because the Crown’s exercise of discretion in filing the direct indictment was an abuse of process, and also resulted in procedural unfairness” (at paragraph 3).

The appeal was dismissed.

The Court of Appeal held that “the judge’s conclusion that there was no abuse of process constituting a breach of section 7 is supported by his unassailable findings of fact that, when the Crown sought the direct indictment, its concerns about delay were well founded and valid in light of the increasing list of pre-trial motions counsel for the accused wanted to schedule; the Crown had made efforts to expedite the proceedings throughout; and the Crown had acted in good faith, mindful of the obligation to protect the accused’s section 11(b) rights.  The judge noted that there were an exceptionally large number of pre-trial motions and that the accused had declined to waive a few months of delay…The jurisprudence recognises the use of a direct indictment as a means, on the appropriate facts, of ensuring that the Jordan ceiling is not exceeded” (at paragraphs 54 and 56).

The Court of Appeal concluded that “[g]iven all of the above, there is no basis for appellate intervention with respect to the judge’s conclusion that the preferring of the direct indictment did not involve an abuse of process” (at paragraph 57).