The Court of Québec recently considered whether the complexity of a white collar case justifies a departure from the presumptive 18-month limit for the prosecution of criminal offences after charges are laid. The Court’s decision affirms that white collar matters that are often thought of as “complex” are not necessarily exempt from the 18-month ceiling.
The Jordan Framework and Delay
In Agence du revenu du Québec c. Morris JA0965, 2020 QCCQ 4200, the Court of Québec dismissed a provincial tax prosecution for delay pursuant to section 11(b) of the Charter. Morris involves the application of the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Supreme Court held that section 11(b) entails a presumptive 18-month ceiling for prosecution of criminal offences. Where the prosecution has exceeded this ceiling, it may rebut the presumption of unreasonable delay by demonstrating exceptional circumstances. The Court in Morris considered what makes a case “complex” such that it constitutes exceptional circumstances.
The Court followed the framework from Jordan in attributing delay amongst the prosecution and defence, and found that the prosecution timeline and systemic delays were above the 18-month ceiling. The prosecution argued that the complexity of the case constituted exceptional circumstances justifying a departure from the presumptive ceiling.
Complexity of the Case
Jordan states that cases may be “complex” because of the nature of the evidence or the nature of the issues. The Court reviewed a number of decisions in which the Court determined that the case was sufficiently complex so as to constitute exceptional circumstances. Based on its review of these decisions, the Court held that the following factors weigh in favour of a finding that a case is “complex”:
- a large number of co-accused,
- accused who are self represented;
- a large number of charges alleged to have occurred over a long period of time;
- the nature of the charges, including where they involve complex fraud schemes;
- preliminary motions involving different legal issues;
- complex legal issues;
- a long trial is expected;
- complex and voluminous evidence from a large investigation;
- the technical nature of the evidence is complex; and
- a large number of witnesses.
The Court held that, while all these factors are to be considered, “complexity” must be assessed holistically. In Morris, the case was not sufficiently complex to justify a departure from the 18-month ceiling. While some factors militated in favour of finding the case to be particularly complex, on the whole, the matter was fairly straightforward. Moreover, the Court reiterated that the prosecution cannot rely on the complexity of the case where (as in this case) it has failed to adopt a prosecution plan to minimize delay. The Court was also of the view that the 18-month ceiling already takes into account complex cases, and as such the ceiling will apply for the majority of cases.