103
7
Where Delay Exceeds the Ceiling —
Exceptional Circumstances
A. DISCRETE EVENTS
1) Discrete Events Dened
In instances where, aer having deducted defence-caused delay, the
time period remains above the eighteen-month/thirty-month ceiling,
it falls to the Crown to show that the delay is reasonable because of the
presence of exceptional circumstances. Such circumstances “lie outside the
Crown’s control” in that (1) they are reasonably unforeseen or reasonably
unavoidable, and (2) the Crown cannot reasonably remedy the delays
emanating from those circumstances once they arise. The circum-
stances need not be “rare or entirely uncommon.”
There is not a closed list of circumstances that will be properly
characterized as discrete exceptional events. In R v Jordan, the Supreme
Court identied exceptional events such as family or medical emer-
gencies as qualifying as exceptional circumstances. An example of this
can be found in R v Baron, where the ten months between a scheduled
preliminary hearing, adjourned due to the illness of one of the accused
in a joint trial, and the new hearing dates, was deducted. The Court in
Jordan further identied cases with an international dimension, such
as those requiring extradition of an accused, as potentially meeting the
2 Ibid.
3 Ibid at para 72.
4 2017 ONCA 772 at para 50 [Baron].
104 A Proactive Practitioner’s Guide to Section 11(b) of the Charter
denition, depending on the circumstances. An example of this can be
found in R v Barra, where the need to extradite both accused from the
United States in one instance and the United Kingdom in the other, was
conceded to constitute a discrete exceptional circumstance, but where
delay in pursuing extradition by authorities warranted a reduction in
what portion of the delay would be attributed to the exception and
deducted from the net delay count.
The Supreme Court also identied instances of unexpected and
unavoidable developments in a case, for example, where a witness
unexpectedly recants, where a mistrial is declared, or where a trial
goes longer than reasonably expected in spite of best eorts to com-
plete the trial in the time estimated in good faith by the parties. In R v
Jurkus, for example, the Ontario Court of Appeal found that the delay
arising from the need for new preliminary hearing dates, arising from
both the Crown’s decision to call a particular witness and the defence
decision mid-hearing to call a witness, was properly treated as excep-
tional. The three months to the continuation date was deducted on that
basis. Similarly, in R v CG, though the Crown had misestimated the
length of time the trial would require, and the need for larger blocks of
time for continuation dates made for a lengthier period in setting those,
because the Crown had made its estimate in good faith, the resultant
delay was properly attributed to a discrete event and deducted.
An inadvertent oversight by the Crown might also qualify as a dis-
crete event, as there is no standard of perfection placed upon the Crown,
and mistakes happen. It will be for the trial judge, relying on their
5 Jordan, above note 1 at para 72.
7 See also: Boulachanis c R,2020 QCCA 4; Jean c R, 2020 QCCA 1455at para13; R v Stead-
man, 2021 ABCA 332 at paras 80–83.
8 Jordan, above note 1 at para 73.
9 See: R v Locknick, 2019 ONCA 625 at paras 13–18 [Locknick].
10 Jordan, above note 1 at para 73;R v Singh, 2016BCCA427 [Singh (BCCA)];R v Rai,
2019BCCA377; R v Pauls, 2020ONCA220 [Pauls], armed in the result in R v Yusuf,
11 2018 ONCA 489 at paras 37–60, leave to appeal refused (without reasons) 2018 CanLII
refused, 2019 CanLII 89653 (SCC) [Antic].
14 Jordan, above note 1 at para 90.
Chapter 7: Where Delay Exceeds the Ceiling — Exceptional Circumstances 105
good sense and experience, to determine whether a particular event is
properly determined to be exceptional.
Various other circumstances can arise through the course of a pros-
ecution that the Crown cannot anticipate or control, and as noted, there
is no exhaustive list that could possibly include them all. That said,
the following comprises some instances where provincial appellate
courts have attributed delay to a discrete exceptional circumstance and
deducted the delay resulting from the discrete event:
• Where a judge presiding over a matter was been suspended from
sitting due to an unrelated complaint to the Ontario Judicial
Council.
• Where the illness of the trial judge necessitated his replacement
for preliminary hearing dates, and the replacement judge could
not accommodate several of the previously scheduled dates.
However, where a judge became ill, but the loss of trial dates is
attributable to the inability to replace the judge due to the lack of
judges in a jurisdiction, this is not an exceptional circumstance.
• Where the preliminary hearing judge determined to assess the
content of each intercept separately, thus necessitating more time.
• Where a conict for the trial judge arose on the rst day of the
proceedings, necessitating a mistrial.
• Diculties with an interpreter requiring multiple audits to
determine the accuracy of the interpretation.
• Where the defence raised some concern, though it turned out
to be unwarranted, that an Information to Obtain could reveal
the identity of a condential informer een minutes before the
start of the preliminary hearing.
15 Ibid at para 71.
16 Antic, above note 11 at para 11.
17 R v Majeed, 2019 ONCA 422 at paras 8–9 [Majeed].
[Brown (NSCA)].
19 Locknick, above note 9 at para 12.
20 Ibid at paras 13–18.
