In R. v. Ghraizi, 2022 ABCA 96, March 17, 2002, the accused was charged with the offence of assault. The time period between the laying of the charge and his trial in the Provincial Court was twenty months. The trial judge concluded that this delay breached section 11(b) of the Charter and entered a stay of proceedings. This stay was overturned by the summary conviction appeal court. The accused was granted leave to appeal to the Court of Appeal.
The Alberta Court of Appeal reinstated the stay entered by the trial judge. It concluded that though the delay caused by COVID-19 was an “exceptional circumstance”, the Crown failed to make reasonable efforts to mitigate the delay (at paragraphs 12 to 15):
…Crown counsel illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan, at paras 74-75, once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system”.
The trial judge found, and the trial Crown conceded, that no steps were taken by the Crown to address the delay resulting from either delay period. The Crown had therefore failed to meet its onus of establishing it took reasonable steps to overcome any exceptional circumstance. The summary conviction appeal judge, however, appeared to overlook that key factual finding, instead concluding that there was nothing anyone could do to have the matter rescheduled for trial between March 17 and July 31, 2020. That approach, in our view, applied an overly restrictive assessment of whether the Crown met its obligation to take reasonable steps to address the delay. Reasonable steps are not simply measured in the context of securing a new trial date. Nor is it necessary that the Crown establish the steps taken would have been successful in reducing or mitigating delay. As but one example offered, Crown counsel took no steps to try to shorten the trial by reviewing whether the evidence of two police officers could be dispensed with.
Crown counsel’s argument on this appeal is infused with a similar sense of defeatism; that nothing could be done between March 17 and July 2, 2020 when the provincial court resumed partial bookings. The Crown also suggests on appeal that so long as the initial trial date is within the Jordan ceiling, the Crown need do nothing further. Such an approach is incongruous with the overarching message in Jordan and the jurisprudence following. The fact of the matter is that unforeseen circumstances do happen. Counsel illness or witness unavailability or trial over-runs are simply part of the vagaries of running a trial. There is an obligation on all parties to work toward a sufficient resolution of trials. As succinctly stated in Jordan, at para 56: the presumptive ceiling “is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling”.
In summary, we find no error in the trial judge’s analysis and restore the stay of proceedings.
