Disclosure issues counted as defence delay
R v Anderson, 2025 ONCA 172: For 11(b) purposes, failure to set an early JPT can convert Crown disclosure issues into defence delay.
A very troubling judgment. Defence delay under Jordan is delay caused "solely or directly by the defence". The purpose of deducting defence delay from the presumptive ceiling is to stop the defence from benefiting from its own delay-causing conduct. But where the delay stems from the Crown failing to disclosing important items--like in this case, where seven months passed before the Crown disclosed important witness statements and search warrant information--it should be laid squarely at the feet of the prosecution. This judgment reflects a troubling doctrinal trend of converting attributable delay to defence delay after the fact. In my view, this trend is contrary to the spirit of Jordan and unfairly penalizes defence lawyers for declining to be conscripted in the prosecution of their own client.
As an aside, it is interesting that this judgment was penned by Justice Michael Code, a Toronto Superior Court judge sitting ad hoc on a panel at the Court of Appeal. Justice Code is one of Ontario's most respected trial-level judges, having written dozens of authoritative decisions that are treated effectively as appellate guidance. His significant experience as a trial judge is clear from his very practical approach to the delay problems in our criminal justice system.
In the Morin era, Justice Code wrote a number of influential 11(b) decisions. The most influential was perhaps R v Lahiry, the case that caused defence lawyers in the old days to put all their available dates on record every time they set a trial. I was an articling student at the peak of this era. Every time we set a trial, we literally would say "And for the record, counsel could have conducted this trial on March 10, 11, 12 (etc -- through to the first date offered)". Set date courts were full of lawyers and agents pointlessly recounting counsel's prior availability to avoid the time before the first date offered being converted into defence delay.
This "micro-counting" exercise was explicitly rejected by the Supreme Court in Jordan. One wonders whether the new rule in Anderson will similarly result in pro forma exercises taking up court time and actually causing delay. I can see a world in which, faced with disclosure problems, defence counsel begin scheduling pro forma JPTs being to avoid the Crown's disclosure problems being converted into defence delay. I suppose time will tell!