In one of the first decisions in Canada applying the Supreme Court of Canada’s new Jordan framework for the measurement of unconstitutional Crown delay to prosecutions for breach of securities law, the Superior Court of Quebec has upheld a stay issued by the provincial Court of Quebec in Autorité des marchés financiers c. Desmarais. The stay had been issued on grounds that the case was not sufficiently complex to require an extension of time for the Crown before trial and that the presumptive 18-month ceiling on Crown delays should be enforced.
In Desmarais the Autorité des marchés financiers (AMF) charged six defendants with a variety of offences, including failing to issue a prospectus in connection with a distribution of securities and providing false or misleading information to investors. The offences were punishable by a maximum fine of $5,000,000 and a maximum term of imprisonment of 5 years less one day.
The Jordan decision, which imposes an 18-month ceiling on trial delays attributable to the Crown in provincial courts (30 months in Superior Courts), permits extensions only in cases of sufficient complexity or in other exceptional circumstances. In the Desmarais decision, the Superior Court of Quebec, sitting in appeal of the provincial court’s decision, found that there was no palpable and overriding error in the provincial court’s finding that the proceeding did not rise to the level of a “particularly complex case” as required in Jordan, even despite the submissions of the AMF that the trial would feature 131 charges against 6 defendants, 35-40 witnesses, and a forensic accounting expert. In coming to the decision the provincial court judge had concluded the case did not have many different elements that would be difficult to disentangle, the issues in the case would become focused once evidence was gathered, and the defences of the multiple defendants were very similar. The judge wrote as well that neither the length of the trial nor the number of motions and witnesses necessarily rendered the questions in the litigation more complex for the purposes of the Jordan analysis.
The Supreme Court of Canada’s 2016 decision in R. v. Jordan significantly altered the framework for determining unconstitutional delay under s. 11(b) of the Charter of Rights and Freedoms, in the prosecution of criminal offences. The previous framework, set out in R v. Morin, required a contextual balancing of four factors: (1) the length of the delay; (2) waiver of time periods by the defendant; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and the right to a fair trial. Jordan, however, moved away from this contextual balancing approach which focused on “prejudice”, and set instead a clear ceiling for trial delays attributable to the Crown, set at 18 months in the provincial courts and 30 months in the superior courts, except in exceptional circumstances. (Crown delay is calculated as the time between the charge and the actual or anticipated end of trial, subtracting for any delays waived or caused solely by the defendant). If more than 18 months (30 months in Superior Court) are required, the Crown bears the onus of demonstrating the presence of exceptional circumstances, which may arise either from “discrete events” (medical emergencies of participants in the trial, for example), or “particularly complex cases”.
The early jurisprudence under Jordan suggests the new framework may apply not only to criminal offences but also regulatory offences punishable by imprisonment, and to corporations as well as individuals. In R v. Live Nation Canada Inc., for example, Nakatsuru J. applied the framework to offences under Ontario’s Occupational Health and Safety Act, in ruling explicitly that the Jordan framework may apply to regulatory offences under provincial statutes as well as criminal offences, and also to corporate as well as the individual defendants. In Jeux sur mesures Maxima inc. c. Québec (Autorité des marchés financiers), the Court applied the new framework in the context of a prosecution alleging breach of securities law, granting an extension in that case pursuant to a separate transitional scheme set out in Jordan to deal with cases where the charges pre-dated the Supreme Court’s decision.
The author would like to thank Fahad Diwan, Student-At-Law, for his contribution to this article.