Wednesday, February 14, 2018
But they did say that the way juries are assembled in Canada can lead to a perception of partiality. Recognizing that and taking steps to revise the jury system to make sure it is, and is seen to be, impartial is exactly what elected officials are supposed to do. Taking lessons from cases to improve the justice system is a good thing.
Gerald Stanley has been acquitted and the Saskatchewan Minister of Justice and Attorney General will decide whether to appeal. The appeal, if heard, will be decided on the law as it existed when Gerald Stanley was tried. But for future cases the law can be changed.
Changes to make Canadians confident the jury system is fair should be encouraged. Justice must be seen to be done.
Monday, February 5, 2018
Thursday, June 22, 2017
 Used appropriately, summary judgment motions are an important tool for enhancing access to justice and achieving proportionate, timely and cost-effective adjudication: Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87. In my view, this motion for summary judgment was premature and should not have been brought until the positions of the parties and the issues were well defined. It was unclear from the pleadings and submissions whether the respondent's claim sounded in contract or unjust enrichment. Further, as noted earlier, the appellants had indicated that their pleading required amendment with respect to the payment they were prepared to make. Moreover, the legal basis for the payment remains unclear. Faced with such a motion, where the record is clearly inadequate, a judge should be reluctant to attempt to resolve the case. Substantial costs are thereby incurred, and further delay caused, with little being achieved. As stated in Baywood, at para. 45, "sometimes … it will simply not be possible to salvage something dispositive from an expensive and time-consuming, but eventually abortive, summary judgment process."
Friday, June 16, 2017
Bruff-Murphy v. Gunawardena, 2017 ONCA 502:
 In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.
 The first component requires the court to consider the four traditional "threshold requirements" for the admissibility of the evidence established in R. v. Mohan,  2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.
 The second component is a "discretionary gatekeeping step" where "the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks": para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
 The analysis under the second component is best thought of as a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed,  S.C.C.A. No. 16: "The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence." In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:
Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.
The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.
 Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness's testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert's potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.
 However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [Emphasis added.]
In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:
[A] proposed expert's independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]
 In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.'s statement that in the threshold inquiry it would be quite rare for a proposed expert's evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is "able and willing to carry out his or her primary duty to the court." The trial judge concluded that Dr. Bail met this rather low threshold requirement.
 That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail's testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.
R. v. Cody, 2017 SCC 31:
Constitutional law — Charter of Rights — Right to be tried within a reasonable time — Pre‑Jordan delay of more than five years between charges and anticipated end of trial — Whether accused's right to be tried within reasonable time under s. 11 (b) of Canadian Charter of Rights and Freedoms infringed — Framework for determining s. 11 (b) infringement set out in Jordan applied.
C was charged with drugs and weapons offences on January 12, 2010. His trial was scheduled to conclude on January 30, 2015. Before the commencement of his trial, C brought an application under s. 11 (b) of the Charter , seeking a stay of proceedings due to the delay. Because the application pre‑dated the release of R. v. Jordan, 2016 SCC 27,  1 S.C.R. 631, the trial judge applied the former framework set out in R. v. Morin,  1 S.C.R. 771. He granted the application and stayed the proceedings. A majority of the Court of Appeal applied the Jordan framework and allowed the appeal, set aside the stay of proceedings and remitted the matter for trial.
Held: The appeal should be allowed and the stay of proceedings restored.
The delay in this case was unreasonable and therefore, C's right under s. 11 (b) of the Charter was infringed. The Court of Appeal erred in its application of Jordan. From the time C was charged until his five‑day trial was scheduled to begin, fully five years passed. The Crown, the defence and the system each contributed to that delay. Under the Jordan framework, every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time. This framework now governs the s. 11 (b) analysis and, like any of this Court's precedents, it must be followed and it cannot be lightly discarded or overruled. Properly applied, this framework provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt.
After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.
After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.
Transitional considerations may be taken into account as a third form of exceptional circumstances where the case was already in the system when Jordan was decided. Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. The exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed. The parties' general level of diligence, the seriousness of the offence and the absence of prejudice are all factors that should be taken into consideration, as appropriate in the circumstances.
In this case, the total delay was approximately 60.5 months, from which the delay waived by C should be deducted (13 months). Then, two periods of time should be deducted as defence delay: the delay resulting from C's first change of counsel (1 month) and the delay resulting from C's recusal application (2.5 months). After accounting for these deductions, the delay is 44 months, which exceeds the 30‑month ceiling set out in Jordan and therefore, is presumptively unreasonable.
With respect to exceptional circumstances, the following delays should be deducted as discrete events: the appointment of C's former counsel to the bench (4.5 months) and part of the delay flowing from the McNeil disclosure issue that arose (3 months). The net delay is therefore 36.5 months. Despite the voluminous disclosure, this does not qualify as a particularly complex case.
In light of the trial judge's findings of real and substantial actual prejudice and that C's conduct was not inconsistent with the desire for a timely trial, the Crown cannot show that the net delay was justified based on its reliance on the previous state of the law. To the contrary, the trial judge's findings under the Morin framework strengthen the case for a stay of proceedings. Where a balancing of factors under that framework would have weighed in favour of a stay, the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.