The Law’s Delay: R v Hanan
In R v Hanan, 2023 SCC 12 [Hanan], the Supreme Court (“SCC”) found that transitional exceptional circumstances did not excuse an excess delay of proceedings under s 11(b) of the Canadian Charter of Rights and Freedoms [Charter].
On December 23, 2015, the accused was charged with first degree murder, attempted murder, and firearms-related offences in connection with the shooting of two individuals, killing one and paralysing the other (Hana, para 2). The preliminary inquiry judge discharged the accused on the first degree charge and committed him to trial on second degree murder, attempted murder, and various firearm charges (Ibid). On October 28, 2019 trial by judge and jury commenced, concluding after four weeks (Ibid). Mr. Hanan was acquitted of second degree murder and attempted murder, but convicted of manslaughter and firearm charges contrary to ss 234, 95(1), and 244(1) of the Criminal Code, RSC 1985, c C-46, respectively (Ibid). He was subsequently sentenced to 15 years in custody, less credit for pre-sentence custody and restrictive bail conditions.
Ontario Superior Court
In R v Hanan, 2019 ONSC 320 [Hanan ONSC], Mr. Hanan brought an application under s 11(b) of the Charter, alleging that his rights to a timely trial were violated. He was arrested on December 23, 2015, the Information was sworn the next day but replaced with a new Information adding six firearms charges sworn on March 10, 2016 (Hanan ONSC, para 3). The case spent almost two full years in the Ontario Court of Justice before his preliminary hearing on December 12, 2017 (Hanan ONSC, para 4). The preliminary inquiry concluded after eight days and the case was scheduled for a six week jury trial in the Ontario Superior Court of Justice commencing on November 5, 2018 (Hanan ONSC, para 4). On consent of both parties, the trial was adjourned with a new date set for October 28, 2019 and an anticipated completion of December 6, 2019 (Hanan ONSC, para 4). From these dates, the total delay from the laying of the information to the anticipated completion of the trial was 47 months and 12 days, which exceeds the presumptive ceiling set in R v Jordan, 2016 SCC 27 [Jordan] by 17 months and 12 days (Hanan ONSC, para 5).
Given the s 11(b) Charter application, the ONSC began by recognizing Mr. Hanan’s case as a transitional case since it was pending at the time that Jordan was decided (Hanan ONSC, para 15). The Superior Court’s calculation was as follows: the total delay from the laying of the information to the anticipated completion of the trial was calculated at 47 months and 12 days; then, the defence delay was subtracted producing a net delay of 37 months and 10 days; next, to rebut exceeding the presumptive ceiling exceptional circumstances by way of discrete events and particularly complex cases are subtracted, producing a remaining delay of 35 months and 7 days; and finally the case is considered in terms of transitional exceptional circumstances which the ONSC find to justify the delay above the Jordan ceiling (Hanan ONSC, para 279). Thus, at the ONSC level, Mr. Hanan’s s 11(b) application is dismissed (Hanan ONSC, para 280).
Ontario Court of Appeal
Mr. Hanan appeals the ONSC decision to the Ontario Court of Appeal in R v Hanan, 2022 ONCA 229 [Hanan ONCA] on two grounds: first, he contends that the ONSC judge erred in his assessment of defence delay, stating that there was in fact 40 months and 7 days of delay not 35 months and 7 days; and second, he asserts that the trial judge erred in his application of the transitional exceptional circumstance since only six months of the case occurred pre-Jordan and the Crown erred after Jordan which resulted in a trial delay of almost a year. Conversely, the Crown submitted that the ONSC judge erred by not attributing more of the delay to the defence, arguing that the net delay was in fact 32 months (Hanan ONCA, para 4). Notably, the Crown also made arguments that even if the court concludes that there was a violation under s 11(b) of the Charter, a remedy other than a stay of proceedings should be considered.
At the appellate level, the bench was split two-to-one. The majority paid deference to the trial judge’s finding, stating that they would not accept either Mr. Hanan’s submission nor Crown’s argument that there was an error in his treatment of the transitional exceptional circumstance or the defence delay. Since they agreed with the trial judge’s finding, they did not comment on the Crown’s submission to revisit a stay of proceedings as the only remedy for a breach of s 11(b). The Ontario Court of Appeal did, however, abide by the remedy in R v Charity, 2022 ONCA 226, citing the principle of stare decisis as precluding them from acceding to the Crown’s request (R v Charity, para 36).
The dissent departs from the majority on their confirmation of the trial judge’s finding that the transitional exceptional circumstance could be relied upon as a justification for excess delay (Hanan ONCA, para 139). Nordheimer J finds that there is no basis for applying the transitional exception circumstance in Mr. Hanan’s case since it is clear that the parties were not relying on the state of the law pre-Jordan (Hanan ONCA, para 140). Specifically, he finds the fact that the ONSC judge warned the Crown about the s 11(b) consequences of not consenting to a judge-alone trial as evidence for the Crown’s knowledge of the state of the law (Hanan ONCA, para 145).
Issue on Appeal
At the SCC level, the question before the court was there a violation of Mr. Hanan’s right to be tried within a reasonable time under s 11(b) of the Charter that would justify a stay of proceedings? (Hanan, para 1)
In a brief 10 paragraph decision, Côté and Rowe JJ find that the trial judge erred in holding that a transitional exceptional circumstance applied, and the appellate justices similarly erred in upholding his decision (Hanan, para 5). Their reasoning for such a finding is two-fold. Firstly, the SCC finds that the parties could not have relied on the pre-Jordan state of the law: only a small portion of the delay preceded the Jordan decision, and the parties had ample time to adapt to the ceilings (Hanan, para 6). Secondly, they find that delay was not due to a “lack of time for the system to ameliorate ingrained institutional delays” but due to the Crown’s refusal to agree to a judge-alone trial despite being warned of the consequences of delay. Since the transitional exceptional circumstance standard did not apply, the net delay of about 35 months remained an unreasonable delay contrary to s 11(b) of the Charter. As such, the SCC allows the appeal, sets aside the convictions, and orders a stay of proceedings.
There are two concerns that arise from my understanding of the Hanan decision. Firstly, the decision creates a basis for courts to approach defence delays with laxity and Crown delays with undue scrutiny – such was the case in R v Osifo, 2023 ONCJ 416 [Osifo]. Osifo related to a June 2023 adjournment of trial caused by staffing shortages, and since the court found that the Crown is responsible for the provision of facilities and staff to ensure a timely trial, the delay caused was deemed as a Crown delay and the s 11(b) application was successful. There are two issues with Osifo. First, in finding the Crown responsible for institutional delay, the ONCJ cites R v Askov 1990, 2 SCR 1199, and R v Godin, 2009 SCC 26 , both of which are pre-Jordan decisions to support a post-Jordan delay calculation. Second, Osifo relies on Hanan to ignore the balancing of interests at the core of s 11(b); namely, the accused’s right to a fair trial and society’s interest in prosecuting serious crimes.
Secondly, and perhaps more importantly, Hanan will only worsen delays in the post-Jordan justice system. As a response to the Jordan ceilings, many jurisdictions across Canada funnelled resources from civil courts to handle top priority criminal cases within the appropriate time frame. This has overburdened civil courts to an almost unthinkable degree. In Think Research Corporation v M Medical, 2023 ONSC 6910 [Think Research Corp], Koehnen J recognizes how it is currently taking between 14 and 20 months to schedule a simple motion, stating: “Civil courts have become burdened by their own procedures to the point that those procedures impede the very justice civil courts are tasked to administer. As a result, civil courts are atrophying and risk harming our democracy and economy. In response, courts must develop proportionate procedures tailored to the needs of the particular case.” In recognizing such delays, and the immense toll they take on the justice system and our wider society, Koehnen J went on to apply the principle of proportionality in civil procedures. Hanan, by narrowing the already restrictive Jordan framework, will only draw away more scarce resources from civil proceedings which will worsen the administration of justice broadly.
These concerns have to do with the practical consequences of Hanan and Jordan more broadly, so some might suggest the problem is at the feet of the legislature and executive to introduce law(s) or appoint judges to alleviate systemic burdens. This might very well be the case, but their silence on this front should not justify the judiciary turning a blind eye to the interest of society. The right to be tried within a reasonable time is foundational to the administration of justice, but is the same not true of the public interest? Surely, the judicial answer cannot be to ignore the nuances of an overburdened system, heighten the Crown’s responsibility, and abandon the public interest altogether. Hanan and Osifo might be an indication to revisit Jordan to strike a balance between the two interests by way of either considering a remedy other than a stay of proceedings, or by granting criminal courts with interpretive tools that grant them flexibility as in Think Research Corp.
In Hanan, the SCC allowed Mr. Hanan’s application under s 11(b) of the Charter and ordered a stay of proceedings, finding that the transitional exceptional circumstances from Jordan do not rebut the excess delay. In doing so, the Court further exacerbated widespread delays across the justice system. Procedures serve courts, not the other way around, and as stated by Strathy CJA (as he then was), to allow courts to become burdened by their own procedures would impede the very justice they are meant to enact.
This article was edited by Ariel Noemi Montana.