November 08, 2017
Thibault, Bich, Bouchard
Appeals from convictions. Allowed; a stay of proceedings is ordered.
On July 10, 2015, the appellants were convicted on four counts of possession of a controlled good, in violation of s. 37 of the Defence Production Act (R.S.C. 1985, c. D-1), and four counts of exporting goods or technology included in an Export Control List, in violation of ss. 13 and 19(1) of the Export and Import Permits Act (R.S.C. 1985, c. E-19). On July 16, 2015, the judge dismissed the appellants’ motion for a stay of proceedings for unreasonable delay in light of the law as it then stood.
The new analytical framework for applications under s. 11(b) of the Canadian Charter of Rights and Freedoms applies to cases that were already in progress when R. v. Jordan (S.C. Can., 2016-07-08), 2016 SCC 27, SOQUIJ AZ-51302609, 2016EXP-2173, J.E. 2016-1212,  1 S.C.R. 631, was rendered, as in this case. This analytical framework is based on 2 ceilings beyond which the total delay is presumed to be unreasonable: 18 months for cases tried in provincial court and 30 months for cases tried in Superior Court. The total delay to be considered in this case is that between September 15, 2011, date of the first information, and July 10, 2015, when the jury returned its verdict. As for whether it is appropriate to use one of the charges of which the appellants were acquitted as the starting point, doing so would ignore the actual situation of the appellants, who, in actual fact, faced three series of intimately related charges arising from a single police investigation. It therefore appears from the first step of the analysis set out in Jordan that the total delay is 1,393 days, or just over 46 months.
Once the total delay has been calculated, the second step of the analysis is to subtract the delay attributable to the defence. After this is done, the overall remaining delay is 1,194 days, or 39 months. Because the presumptive ceiling of 30 months is exceeded, the third step of the test requires that the Crown rebut the presumption of the unreasonableness of the delay on the basis of exceptional circumstances and by demonstrating that reasonable steps were taken to avoid the delay. Nothing of the sort appears in the record, however.
Finally, it must be determined whether the overall delay can nevertheless be justified by applying a transitional exceptional circumstance, given that the charges were laid before Jordan was rendered and the conduct of the parties should not be judged too strictly, against a standard of which they had no notice. In this respect, the Crown must establish that the delay is justified because it reasonably relied on the state of the law as it previously existed, as established in R. v. Morin (S.C. Can., 1992-03-26), SOQUIJ AZ-92111050, J.E. 92-517,  1 S.C.R. 771. According to that judgment, the prejudice suffered by the accused, the gravity of the offence, or the fact that some judicial districts with significant institutional delay problems may justify exceeding the presumptive ceiling. As for the gravity of the offence, the crimes of possession of controlled goods and export of goods or technology included in an Export Control List are punishable by 10 years’ imprisonment. At first glance, these offences are serious. However, the military hardware targeted by the federal legislator is quite varied and includes a wide range of objects. In this case, it is difficult to conclude that the possession and export of night vision goggles is a very grave offence. Therefore, the application of the transitional exceptional circumstance and the consequent weighing the factors required by the law as it existed before Jordan, favour a stay of proceedings.
An RSS feed allows you to keep up to date with any recent updates published on a website. By subcribing to our RSS feed, you will automatically receive the latest news related to your RSS feed and view them at any time.