[September 11, 2024] Domestic Assault: Extrinsic Misconduct [Reasons by Kalmakoff J.A. with Leurer C.J.S. and Drennan J.A. concurring]
AUTHOR’S NOTE: In domestic assault trials, one recurring issue is the introduction of extrinsic misconduct allegations by complainants, which can unduly influence the trier of fact. These allegations often involve the complainant attacking the accused for past behavior unrelated to the specific charges being tried. Extrinsic misconduct is presumptively inadmissible, and it requires a voir dire to assess its relevance and admissibility under recognized exceptions before it can be considered in the trial.
In this case, the Court of Appeal highlighted the trial judge’s failure to exercise their gatekeeping role effectively. The judge did not conduct an admissibility hearing to evaluate the relevance or admissibility of extrinsic misconduct evidence. As a result, improper evidence influenced the trial, and a new trial was ordered. This case emphasizes the necessity of a careful and deliberate judicial approach to such evidence, as failure to do so can lead to miscarriages of justice.
I. INTRODUCTION
[1] After a trial in Provincial Court, Adam Stettner was convicted of eight Criminal Code offences arising from events that occurred during two separate incidents in late 2021. The trial judge found that, in the course of those events, Mr. Stettner had committed various forms of assault against a woman who was his domestic partner at the time, and that he had damaged her property. At the conclusion of the trial, Mr. Stettner was found guilty of two counts of assault, two counts of assault by choking, one count of assault causing bodily harm, two counts of mischief, and one count of breaching a probation order. He was acquitted on a charge of uttering a threat to cause damage to the complainant’s property.
[4] Mr. Stettner has appealed against his convictions in relation to the matters that went to trial, and against his sentence.
[5] In the conviction appeal, Mr. Stettner alleges that the trial judge erred by admitting evidence of misconduct on his part that was extrinsic to the offences charged and relying on that evidence in convicting him, and by determining that the offence of assault by choking, contrary to s. 267(c) of the Criminal Code, is an offence included in the offence of attempting to overcome resistance to the commission of an indictable offence, contrary to s. 246(a). He also asserts that his conviction was the product of a miscarriage of justice, because he did not receive competent representation from his lawyer at trial.
[7] For the reasons that follow, I would allow Mr. Stettner’s conviction appeal and order that there be a new trial on the charges from which the conviction appeal was brought….
A. The charges at trial
[9] In the matters that proceeded to trial, Mr. Stettner had been charged with a total of nine offences, contained in four informations, relating to two separate incidents involving A.R., who was his domestic partner at the time.
4. The Trial Decision
[15] At the conclusion of the trial, the trial judge found Mr. Stettner guilty on eight of the nine counts he was facing. She reached this conclusion, in large measure, because she accepted the testimony of A.R. as credible and reliable. As mentioned above, Mr. Stettner was found guilty of the charges as they were worded in relation to the counts charging assault, assault causing bodily harm, mischief and breach of probation. With respect to the counts charging attempt to overcome resistance to the commission of an indictable offence, contrary to s. 246(a) of the Criminal Code (count 2 on Information 90456666 and count 2 on Information 90456655), she found Mr. Stettner guilty of the included offence of assault by choking, contrary to s. 267(c).
III. ANALYSIS
A. Conviction Appeal
1. The improper admission and use of evidence of extrinsic misconduct
a. The impugned evidence
[36] Mr. Stettner argues that the trial judge improperly admitted and relied upon evidence of extrinsic misconduct in finding him guilty. In this regard, he points to several junctures in the trial where Crown witnesses gave evidence which suggested that he had behaved violently towards A.R. on occasions other than the incidents which formed the subject matter of the charges.
b. The reference to the impugned evidence during closing submissions
[41] During closing submissions, Crown counsel argued that A.R. was a credible and reliable witness, and that her evidence should be accepted, including what she had said about Mr. Stettner choking her to the point that she could not breathe and feared she was going to die. As part of those submissions, Crown counsel twice referred to A.R.’s description of Mr. Stettner’s “signature move”. First, in relation to the September incident, Crown counsel said:
There, you’ll recall, [A.R.] told the Court that the assault continued. She said she had blood on her face and she was hysterical, screaming and crying. She testified that he dragged her to the bathroom and basically held her up against the wall, wiping the blood off her face because he was worried that the police would see her bloodied. She also said because — or she perceived that because she was calling for help, yelling loudly, he administered his — what she described as his signature move on her, her words, choking her from behind with both arms and lifting her kind of under the chin, around the neck, so forcefully that she’s lifted into the air. She described that she couldn’t breathe and thought she was going to die. You’ll recall her testimony about that being both compelling and, I thought, very tragic and — and difficult to — to hear.
(Emphasis added)
[42] Then, when discussing A.R.’s account of the November incident, Crown counsel said:
So you’ll recall, now getting to the first assault, after [A.R.] wouldn’t disconnect the call at Mr. Stettner’s urging, Mr. Stettner took and smashed her phone and then she described him repeatedly punching her in the back of the head, primarily. She said she was down on the ground in the fetal position and was struck a number of times, she thought at least ten times, primarily in the head. She said that he was also dragging her around by the hair. And on this occasion, too, did his what she sort of heartbreakingly described as his almost signature move on her again, lifting her up from behind, by the neck, for long enough time that she, in this — on this date, said she was — felt like she was drifting off to space, seeing stars, and, again, thinking she was going to die.
(Emphasis added)
[43] In his closing submissions, Mr. Stettner’s trial counsel argued that, for several reasons, A.R.’s evidence was unreliable and should not be accepted. Those reasons included her alcohol and drug use during the relevant events, her admittedly unclear recollection of certain portions of those events, her admission that she may have blended certain events together, and the lack of any evidence of observable injuries that would confirm her account of having been choked.
c. The trial judge’s decision
[44] The trial judge ultimately accepted A.R.’s evidence as credible and reliable. In her reasons, the trial judge began by laying out the charges that Mr. Stettner was facing and summarizing the testimony of the Crown’s witnesses. As part of that summary, she said the following about A.R.’s account of the November incident:
So after the call ended, [D.R.] called 911 and reported her concerns. [A.R.] said [Mr. Stettner] was afraid that [D.R.] would call police, so he was upset. He struck [A.R.] at least 10 times in the head. She was down on the ground in a turtle position, she said. [Mr. Stettner] grabbed [A.R.] by the hair, and later on, lifted her off the ground with his elbow around her neck, much like the previous such incident. She almost passed out, she said, and had passed out on other similar occasions. She called it his signature move.
(Emphasis added)
[45] Immediately after this summary of the evidence, the trial judge framed what she viewed as the main issue in the case, and expressed her conclusion with respect to that issue, in the following way:
The main issue is credibility and reliability of [A.R.]’s evidence and whether the Crown has proven the charges beyond a reasonable doubt. With respect to the evidence of [A.R.], in the Court’s opinion, she presented as endeavoring to tell the truth and answered questions directly. She acknowledged when she did not recall or was unsure. She testified in a logical fashion, in some detail, and was not shaken on cross-examination. Her evidence was supported in various respects by other evidence, including the testimony of other witnesses. Her evidence was uncontroverted. I accept her evidence as credible and reliable.
[47]….the trial judge determined that her acceptance of A.R.’s evidence meant that the Crown had proved the case against Mr. Stettner beyond a reasonable doubt….
d. Analysis
i. General principles
[49]…Mr. Stettner contends that the trial judge’s error in this case was permitting the introduction of evidence that he had committed acts of violence against A.R. on occasions other than those for which he was being tried, and relying on that evidence for an impermissible purpose to decide whether the Crown had proven the case against him beyond a reasonable doubt. He says the trial judge failed to recognize that the evidence pertaining to discreditable conduct outside of the events forming the subject matter of the charges for which he was being tried was presumptively inadmissible and, because of that, she failed to conduct the necessary analysis before receiving it and relying on it to find him guilty.
[50] Evidence of an accused person’s discreditable acts that do not form part of the charges for which they are on trial is presumptively inadmissible. This is because there is a danger that a trier of fact may assume, from the acceptance of evidence of extrinsic misconduct, that the accused is a bad person who is more likely to have committed the offence with which they are charged. Accordingly, there is an exclusionary rule against evidence of general propensity, disposition or bad character (Handy at para 36; Ukabam at paras 72–74; R v Bone, 2024 SKCA 21 at para 69; R v Z.W.C., 2021 ONCA 116 at para 96, 402 CCC (3d) 427 [Z.W.C.].; R v A.L., 2020 BCCA 18 at para 138, 385 CCC (3d) 407). Such evidence is inadmissible if it does no more than show that the accused is the type of person likely to have committed the offence, or if it is tendered to establish the accused’s bad character as circumstantial proof of their conduct in relation to the present charges (Handy at para 31; Z.W.C. at para 96; R v J.H., 2020 ONCA 165 at para 53 [J.H.]; R v Roks, 2011 ONCA 526 at paras 87–89, 274 CCC (3d) 1).
[51] As with many other general rules of exclusion, this rule has exceptions. Evidence of extrinsic misconduct may be admitted if it is relevant, material (in the sense that it can properly be used to prove a point in issue other than the accused’s character), and the Crown establishes, on a balance of probabilities, that its probative value outweighs its prejudicial effect (Handy at paras 41, 55, and 69–73; Ukabam at para 75; J.H. at paras 52–54; Z.W.C. at para 96; R v Durant, 2019 ONCA 74 at para 83, 372 CCC (3d) 66).
[52] The determination of whether evidence of extrinsic misconduct will be admitted or excluded is one that must be made by the trial judge applying the law to the circumstances of an individual case. While such evidence is not admissible simply to prove propensity or bad personhood, it may on occasion be admitted in domestic violence cases because it can be probative in several different ways, as explained in J.H.:
[54] Like other admissibility rules, this general rule of exclusion capitulates on occasion. It yields where the probative value of the proposed evidence exceeds its prejudicial effect: Handy, at para. 55; Luciano, at para. 222; and J.A.T., at paras. 51, 54. Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.
[55] Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:
i. as part of the narrative of relevant events;
ii. to provide context for other evidence;
iii. to facilitate understanding of the nature of the relationship between the principals;
iv. to demonstrate motive or animus on the part of the accused for committing the offences;
v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and
vi. to rebut a claim of fabrication.
See R. v. F., D.S. (1999), 43 O.R. (3d) 609 (C.A.), at pp. 616-17; R. v. R., B.S. (2006), 81 O.R. (3d) 641 (C.A.), at para. 38.
[53] While I agree that extrinsic misconduct evidence may properly be admitted for the purposes described in J.H., before that happens, the evidence must always be carefully assessed by the trial judge to determine whether its probative value exceeds its prejudicial effect. And, where such evidence is admitted, the trial judge must ensure that it is used only for a permissible purpose (R v Giesbrecht, 2019 MBCA 35 at paras 76–78, 373 CCC (3d) 70). Even where the charges at issue in the trial concern allegations of violence in the context of a domestic relationship, evidence of extrinsic misconduct is not automatically admissible under the rubric of context or narrative, or for the purpose of facilitating an understanding of the parties’ relationship. Extrinsic misconduct evidence remains inadmissible if it does no more than establish a pattern of bad conduct to show that the accused is more likely to have committed the offence charged (R v Klymson (1994), 91 CCC (3d) 161 at para 63 (BCCA)).
[54] Because evidence of extrinsic misconduct is presumptively inadmissible, where the Crown seeks to introduce such evidence, it must identify the basis upon which it purports to have the evidence admitted and the use to which it suggests the evidence should be put, so that the accused may have an opportunity to respond and the trial judge can conduct the proper admissibility assessment (see: for example, R v Tsigirlash, 2019 ONCA 650 at paras 23–27; and R v Nolan, 2019 ONCA 969 at para 35, 150 OR (3d) 647 [Nolan]). [PJM Emphasis]
[55] It is an error of law for a trial judge to admit evidence of extrinsic misconduct, and to rely on it in deciding on the accused’s guilt, without first conducting an inquiry into its admissibility (R v MRS, 2020 ONCA 667 at para 66, 396 CCC (3d) 172 [MRS]; Nolan at para 41). That said, the failure of a trial judge to hold a voir dire with respect to the admission of such evidence will not inevitably be fatal to a conviction on appeal. A conviction may properly be upheld, even in the face of this sort of error, by applying the curative proviso in s. 686(1)(b)(iii), if the accused suffered no prejudice as a result. This will be the case either where it is clear from the record that the evidence had no effect on the verdict, or where the evidence would have been properly admitted if the necessary inquiry had been conducted and the accused had a meaningful opportunity at trial to respond to its use (see, for example: R v Manitopyes, 2016 SKCA 61 at para 32, 336 CCC (3d) 386; R v R.K.K., 2022 BCCA 17 at para 65; MRS at para 66; Nolan at paras 36–39). [PJM Emphasis]
[56] I would also note that the fact defence counsel did not object to the admission of extrinsic misconduct evidence at trial is not determinative of the issue. A trial judge’s gatekeeper function requires them, even in a judge-alone trial, to ensure that only properly admissible evidence is received and considered when rendering a verdict. Presumptively inadmissible extrinsic misconduct evidence “does not magically become admissible” simply because there is silence by the defence at the time it is tendered (R v Settle, 2021 ABCA 221 at para 42, 407 CCC (3d) 154).
ii. Applying the principles
[57] In this case, I am persuaded that the trial judge erred in law by admitting evidence of Mr. Stettner’s bad conduct that was extrinsic to the charges upon which he was being tried without analysing whether it was properly admissible, and by relying on that evidence to conclude that he was guilty of offences arising out of the September and November incidents.
[58] As seen in the excerpts of her testimony reproduced above, D.R. testified about other occasions where Mr. Stettner had been violent with A.R., by describing that, in the fighting “that they usually do”, the “physical was [Mr. Stettner] on [A.R.] until I would phone the police”. She also described that the cut she observed on A.R.’s face after the November incident was “one of the minor ones … that she’s had from him”. The clear implication from this testimony was that Mr. Stettner had assaulted A.R. on other occasions, including some where he had inflicted injuries.
[59] More significantly, as noted above, after describing choking as Mr. Stettner’s “signature move”, A.R. gave evidence comparing the effect that the choking had on her in the November incident to not only that which she had experienced during the September incident, but also to other previous incidents that were not part of the trial by saying, “I have passed out other times, but not that time”.
[60] I see no reasonable way of understanding this testimony other than as being evidence of extrinsic misconduct on Mr. Stettner’s part. As such, it was presumptively inadmissible. The Crown may not have intended to lead this extrinsic misconduct evidence as part of its case. Indeed, some of it came out only in cross-examination. However, the most significant portion – A.R.’s description of the “signature move” and her reference to previous incidents of choking – was provided in response to questions asked by Crown counsel in examination-in-chief. Once this evidence was adduced, the Crown did not acknowledge that it was presumptively inadmissible, request a ruling on its admissibility, or identify a purpose for which it could properly be considered by the trial judge. Accordingly, no voir dire was held, and the trial judge was not called upon to assess its admissibility. In fact, the extrinsic misconduct evidence was not addressed in any way until Crown counsel made his closing submissions, at which point he twice mentioned A.R.’s description of the “signature move” when suggesting that her evidence, as a whole, should be believed. By doing so, the Crown effectively invited the trial judge to use the evidence for the improper purpose of propensity reasoning by asserting that, because Mr. Stettner had acted in a certain way in the past – i.e., choking A.R. until she passed out – it was more likely that A.R. was telling the truth when she said he choked her on the occasions that formed the subject matter of the charges.
[61] As I have already noted, I recognize that the failure to hold a voir dire is not solely determinative of whether the trial judge erred by admitting evidence of extrinsic misconduct. But I can see no indication in the trial judge’s reasons that she turned her mind to the question of whether the extrinsic misconduct evidence should be admitted in Mr. Stettner’s case, or, if so, for what purpose. In other words, there was an absence of any self-instruction on the part of the trial judge about the permissible and impermissible uses of the evidence, and a corresponding absence of the necessary analysis. [PJM Emphasis]
[62] In any event, apart from the question of the admissibility of this evidence, when I review the trial judge’s decision as a whole, and in the context of the entire record, I can see no way of reading her reasons other than that she used the extrinsic misconduct evidence, including A.R.’s reference to choking being Mr. Stettner’s “signature move”, as a propensity-based makeweight when assessing the credibility and reliability of A.R.’s testimony. This was an improper purpose and, as such, an error of law, even if the evidence might have been admissible for some other purpose.
[63] I am also cognizant of the fact that a trial judge’s reasons must be read with the presumption that they know the law, and that it is unnecessary for trial judges to recite the law to demonstrate that they have applied it correctly. On the other hand, as the Ontario Court of Appeal recently noted in R v Morin, 2024 ONCA 562, this presumption “does not entitle appellate courts to ignore what trial judges actually say in their reasons” (at para 41). Notably, in this case, the trial judge referred to A.R.’s testimony about the “signature move” immediately before she stated that the key issue in the case was the credibility and reliability of A.R.’s evidence. She then stated that she accepted all of A.R.’s evidence, which, in my respectful view, can only be taken as including A.R.’s testimony about the “signature move” and the previous incidents of choking. The trial judge also stated that she found A.R.’s evidence to be credible and reliable because it “was supported in various aspects by other evidence, including the testimony of other witnesses”. Again, read in the context of the trial record as a whole, this must be taken as including the testimony D.R. gave about other occasions where Mr. Stettner had caused injuries to A.R. or had otherwise been physically violent with her. This is problematic, because it shows that the trial judge based her conclusions about the credibility and reliability of A.R.’s testimony, at least in part, on extrinsic misconduct evidence…. [PJM Emphasis]
[65] Accordingly, the conviction appeal must succeed. The convictions entered at trial must be set aside, and a new trial must be held in relation to those charges.
[June 27, 2024] Charter s.11(b): Stay Under 30 Months – Trial Adjourned for Lack of Judge [Kent J. Teskey J.]
AUTHOR’S NOTE: R v Jordan was intended to set a clear standard for addressing delays in criminal trials, establishing firm ceilings—18 months for provincial court trials and 30 months for superior court trials or cases tried after a preliminary inquiry. However, despite its goal of expediting the criminal justice process, the concerns raised by the Supreme Court about rising delays have materialized. The average delay has crept dangerously close to the 30-month threshold, and stays of proceedings for delays exceeding this ceiling remain relatively rare.
Stays for delays falling below the ceiling, as outlined in Jordan, have become almost impossible to secure unless there is strong evidence of exceptional circumstances. However, in this rare case, the court granted a stay just shy of the 30-month ceiling due to an adjournment caused by the unavailability of resources, suggesting that a rigid adherence to the ceiling is not always enough to prevent a stay. The court highlighted that where the trial could have proceeded earlier but was postponed due to system inefficiencies, such delays may still warrant a stay of proceedings, reinforcing the idea that staying just below the Jordan ceiling is not enough and that systemic delays remain a serious issue.
Introduction
[1] The Accused brings an application alleging a breach of their right under s 11(b) of the Charter to have a trial within a reasonable time.
[2] They are charged with drug offences arising out of a multi-month investigation in Fort McMurray. The matter proceeded through preliminary inquiry in September 2023 and pretrial motions in February 2024. While the matter was scheduled to proceed to trial in April 2024, the Court adjourned the matter due to the unavailability of a Justice to hear the case. It has now been rescheduled for trial on July 17 and 18, 2024.
[3] While the ultimate time to trial amounts to one week less than the 30-month presumptive ceiling, the defence argues that the unique circumstances of this case render the delay unreasonable.
Procedural History
[5] The history of this case can be summarized as follows:
January 25, 2022- Accused arrested
January 26, 2022- Information Sworn
March and April 2022- The Accused appear at their early appearances with Counsel retained. The Crown suggests that the matter be adjourned to June 2022 for disclosure.
June 14, 2022- All five co-accused appear with Counsel, who indicated they were ready to set dates. Crown requested that the matter be adjourned to July 12, 2022, for additional disclosure to be received from the RCMP.
July 12, 2022- All Counsel ready to set preliminary inquiry dates. The matter is adjourned until July 26, 2022, for common dates to be provided to the Court. Defence notes that the initial Crown estimate for a preliminary inquiry was three days but indicated that they believed that it could be concluded in a half-day
July 26, 2022- Counsel set a half-day preliminary inquiry. Counsel notes that the first common date for the Court and Counsel is September 2023. The Crown (not Mr. Lieslar) comments that they had earlier dates, but no specifics are offered.
September 6, 2023- Preliminary inquiry conducted.
September 12, 2023- First appearance in Arraignments. The matter is set for a four-day trial in November 2024
October 24, 2023- The matter is brought forward in Arraignment Court. The Crown severs one of the Accused from the Indictment, and the trial time is reduced to two days. The matter is reset for April.
April 10, 2024- First day of the scheduled trial. The presiding Justice indicates that there is no Justice available to hear the trial due to a “lack of judicial resources.” 13 witnesses were subpoenaed and ready to appear, including three via CCTV. Many witnesses, the Accused and Counsel all travelled significant distances for this trial.
July 17 & 18, 2024- Rescheduled date for trial
[6] The time from charge to July 18, 2024, is 29.8 months.
Net Delay
[8] Crown fairly concedes that it cannot point to a time that should be directly subtracted from the 29.8 months….
[9] This is a case of some complexity, but not what I would frame as “particularly complex” (Jordan at para 71). To the extent that the Supreme Court characterized the complexity of the Jordan itself case as “moderate,” it would be difficult to suggest that the complexity of this matter approaches that. All Counsel agreed on this point.
Section 11(b)- The Right to Trial within a Reasonable Time
[11] In R v Jordan, the Supreme Court of Canada set a presumptive ceiling for a Superior Court trial of 30 months. Where an Accused alleges a violation of 11(b) for a case that does not exceed this threshold, they bear the burden of demonstrating that they took meaningful steps that demonstrate a sustained effort to expedite the proceeding and that the case took markedly longer than it reasonably should have.
Have the Accused’s demonstrated a sustained effort to expedite the proceedings?
[14] When I review the history of this proceeding, I find significant evidence of the Accused making sustained efforts to expedite this proceeding.
[15] First, Counsel was retained quickly and appeared at the first appearance, having requested disclosure.
[16] Second, immediately after receipt of disclosure, the Accused entered an election of King’s Bench Judge Alone and sought to set a preliminary inquiry date. Notably, the Crown’s initial estimate of time for preliminary inquiry was three days. Counsel for the Accused proactively offered to make admissions to reduce the required time to half a day.
[17] Third, at arraignments, the Accused and Crown agreed to reduce trial time from 5 days to 2.
[18] Last, pretrial motions were litigated efficiently and concisely before trial.
[19] The defence is not required to immunize the state from failing to adequately resource the justice system to provide a timely trial date. Still, it is necessary to move diligently and reasonably toward trial. While it is not required to solve a resourcing gap, it must be part of the solution, not part of the problem. [PJM Emphasis]
[20] The Crown fairly conceded that the conduct of the defence in this matter was focused and efficient. He acknowledged that the defence acted diligently and cooperatively. He suggests, however, that they failed to show a sustained effort to advance the matter because of an inability to agree to earlier common dates when the April trial was set. As a result, the Court should find that they have failed to make the sustained effort required under the first stage of the test.
[21] After preliminary inquiry, dates were offered between late January and June 2023. Two out of three Counsel were available in February, while Mr. Moreau was only available starting in April. As a result, April was selected.
[22] Delay must be understood contextually and reasonably. Defence Counsel is not required to hold themselves in a state of perpetual availability” (R v Godin, 2009 SCC 26 at para 23); rather, they must adhere to a standard of reasonable availability and cooperation. I find that the fact that Mr. Moreau was not available for the February dates does not detract from the otherwise expeditious conduct of the defence. [PJM Emphasis]
[24] It would not have been reasonable for Mr. Moreau to rearrange his professional calendar to bridge the scheduling gap. It would not have been sensible, nor would it have likely been successful for Mr. Johnson to apply for severance. This is a classic example of the inevitable delay that a prosecution of multiple accused can naturally and understandably create. This is highlighted by the fact that the Crown proactively severed one of the accused in this matter, yet delay remained an issue. There are certainly examples where the conduct of the defence needs to be scrutinized, but these are not those facts.
[27] I am satisfied that the defence was diligent and focused in their duty to provide full answer and defence to their clients and their obligation to the administration of prompt justice. I can find very little to fault in the conduct of this defence. To the extent that I could, I would likely be engaging in the examination with the benefit of hindsight, which I am directed to avoid.
Has this case taken markedly longer than it reasonably should have?
[28] The question of whether a case has taken “markedly longer than it reasonably should have” requires that the Court draw upon its knowledge of the local jurisdiction, “including how long a case of that nature typically takes to get to trial” (Jordan at 89)
[29] The difficulty in this case is that, to the extent that this case falls under the presumptive ceiling, it does so by inches rather than miles. While one might question the practical difference to the accused of a delay of 29.8 months rather than 30 months, it remains an important distinction as to whether the delay is presumptively unreasonable.
[31] Moreover, I reflect that most criminal cases in the Superior Court in Alberta now generally fall toward the limits of the Jordan ceiling. In an effort to keep cases under 30 months, the average time to trial has risen toward the ceiling. The Supreme Court was explicit that 30 months was not to be “an aspirational target” (Jordan at para 56) and noted, “There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.”
[33] The Defence urges me to find that the adjournment in April is attributable to the failure of the federal government to appoint Superior Court judges promptly. They point to the decision of the Ontario Superior Court of Justice in R v Alli, 2023 ONSC 5829, as evidence of a systemic failure of timely judicial appointments. [PJM Emphasis]
[34] Like Ontario, judicial appointments in Alberta have historically been slow and inconsistent. However, since April 2023, there have been 17 appointments to this Court, and now the Court complement is effectively full. While this is progress, new Justices need to be onboarded and integrated into the Court. This is especially challenging when these new appointees represent almost a quarter of the Court’s complement. Moreover, trials are set months in advance based on the judicial complement available at the time, not on assumptions and hopes about future appointments.
[36] In Alberta, scheduling is premised on the assumption that trials may collapse. As a result, Justices may be redeployed across the province to handle an unallocated trial based on the collapse of their original assignment. It is not uncommon that a Justice scheduled for a trial that collapses in Calgary on a Monday could be reassigned to Fort McMurray to hear a trial on a Wednesday. The fact that the Court did not have a Justice available to hear this trial is rare. It does, however, speak directly to a Justice system working at the margins of its capacity.
[38] While I understand the scheduling policies that caused this adjournment, the effect in this rare case was to leave parties, witnesses, and the public without a Justice to hear an important trial. This engages questions of public confidence at the core of the Jordan decision. The adjournment of this trial date was not an unfortunate inconvenience; it was “an unreasonable delay that deni[ed] justice to the accused, victims and the public as a whole.” (Jordan at para 19)
[39] The April adjournment as a discrete event is a serious matter. It is an important factor in my consideration of whether this is a “rare case” where a breach is found below the presumptive ceiling. The public reasonably expects a trial date to have an available judge. People, whether criminal or civil litigants come before the Court with serious issues that require adjudication. When we fail in this obligation due to the unavailability of a trial judge because of resourcing issues, it is an affront to public confidence in the administration of justice. [PJM Emphasis]
“As McLachlin J. (as she then was) put it in Morin”, “delays are of consequence not only to the accused but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov, at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221). (Jordan at para 25)
Conclusion
[40] In considering my decision, I have reflected on the comments of Justice Thomas in R v Vader, 2016 ABQB 489, where he surveyed trial scheduling delays in Alberta shortly after the release of the Jordan decision in 2016 and noted,
“…the functionality of the Alberta Court of Queen’s Bench has been badly compromised by inadequate court personnel staffing and a judicial complement that is woefully understrength on a per-capita basis when compared to other provincial superior courts in Canada. This fact is notorious and has been repeatedly emphasized by the administrative justices of this Court. Escalating pretrial delays are the inevitable result of this ongoing neglect of and support for the Court.” (Vader at para 95).
[41] He concluded, “Simply put, the well is dry.” (Vader at para 96). In my view, the structural problems that Justice Thomas identified in 2016 in Alberta remain significant challenges in 2024. The Trial Courts, both provincial and federal in Alberta, have made considerable efforts to comply with the direction in Jordan. Yet, the presumptive ceiling continues to be a significant threat to criminal cases. This is an issue of resources rather than resolve.
[42] It is contrary to the public interest that a case such as this should effectively take 30 months to adjudicate, especially eight years after Jordan. It is unreasonable and markedly longer than it ought to have taken. To endorse this delay would be to turn 30 months into the aspirational target that the Supreme Court explicitly cautioned against.
[43] I direct a stay of proceedings.
