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.

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Photo of Ben Sakamoto Ben Sakamoto
Ben Sakamoto is a member of Baker McKenzie’s Litigation and Government Enforcement Practice Group in Toronto. He joined the Firm as a summer student in 2016 and completed his articles in 2018. Ben has a broad commercial litigation practice. He acts for clients
Ben Sakamoto is a member of Baker McKenzie’s Litigation and Government Enforcement Practice Group in Toronto. He joined the Firm as a summer student in 2016 and completed his articles in 2018. Ben has a broad commercial litigation practice. He acts for clients on fraud matters, internal investigations, jurisdictional disputes, class actions, insolvency and restructuring matters, and commercial arbitrations. He is a contributor to canadianfraudlaw.com and globalclassactionsblog.com. Ben also assists the Firm’s pro bono team in providing legal assistance to survivors of human trafficking and sexual exploitation.
Photo of John Pirie John Pirie

John Pirie leads Baker McKenzie’s Canadian litigation and government enforcement group and is a member of the North American group’s Steering Committee. A Chambers ranked trial lawyer, he handles complex business disputes, investigations and white-collar matters, particularly those with multi-jurisdictional aspects. John’s focus…

John Pirie leads Baker McKenzie’s Canadian litigation and government enforcement group and is a member of the North American group’s Steering Committee. A Chambers ranked trial lawyer, he handles complex business disputes, investigations and white-collar matters, particularly those with multi-jurisdictional aspects. John’s focus includes a significant fraud and financial recovery component, having pursued and defended a range of leading cases in the area. He has deep experience with emergency relief measures, including global asset freeze orders and remedies available in bankruptcy and receivership. John has acted for governments, banks, investors, multinational corporations, officers and directors, a stock exchange, a securities regulator, members of the judiciary and an array of professionals. Clients interviewed by Chambers Global say: “John Pirie has an excellent command of the law and clients’ needs and expectations” and “he is an experienced courtroom advocate who is particularly well regarded for his civil fraud expertise.”