Canada: Shepherding In A New Era In Section 11(B) Rights

In R v Jones and Schmidt, 2016 ONSC 7388, a November decision of the Ontario Superior Court of Justice, the court found that unreasonable delays in bringing the case to trial were mostly attributable to the prosecution and, as such, the constitutional rights of the accused to be tried within a reasonable time had been violated. Accordingly, Justice Laura Bird dismissed the charges brought against farmers Linda 'Montana' Jones and Michael Schmidt pursuant to the Health of Animals Act, SC 1990, c 21 (HAA) and the Criminal Code.

The case began in 2010, when a sheep in Alberta tested positive for scrapie. Scrapie is a fatal, degenerative disease that affects the nervous systems of sheep and goats, similar to BSE in cows. There is no evidence that scrapie can be transmitted to humans. The Canadian Food Inspection Agency (CFIA) claimed that the affected sheep had originated from Jones' farm in Ontario, where she bred rare Shropshire sheep, and immediately placed the farm under quarantine. Although the biopsies performed on Jones' live sheep all tested negative for scrapie, live testing is only 85% accurate; the only way to be positive that sheep are not affected is to examine the brain tissue of the dead animals. On March 23, 2012, the CFIA authorized the destruction of all of Jones' sheep.

However, when regulators arrived at Jones' farm on April 2, 2012, all 31 sheep were missing. The following sign had been left on the barn door:




Following a widespread investigation, the sheep were found on a farm approximately five hours from Jones' property. The sheep were slaughtered and tested by the CFIA, which tests found that none of the sheep had scrapie.

Jones was charged with conspiracy and violating orders made pursuant to the HAA, along with three other individuals: Schmidt, Suzanne Atkinson, and Robert Pinnell. Atkinson pled guilty to one charge under the HAA in December 2014. The charges against Pinnell were dropped in October 2016.

The proceedings against Jones and Schmidt were drawn out for several years due to perpetually slow disclosure of relevant documents by the Crown. Among the documents that the Crown failed to disclose for approximately 18 months was an internal CFIA memo that questioned the integrity of the initial positive scrapie test, which the defence claimed was crucial to its case. The Crown was also challenged for bringing an unsuccessful motion to have the defendants' lawyer removed due to a potential conflict of interest, which delayed the proceedings by a further 12.5 months.

The court relied on the recent Supreme Court of Canada decision, R v Jordan, 2016 SCC 27, which revised the framework for determining what constitutes unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms. As we wrote about in " Your Right to a Speedy Trial?", a delay exceeding 30 months is presumptively excessive for criminal cases before the Superior Court. As the total delay in this case was approximately 53.5 months, the Crown had the burden of proving that the delay was not unreasonable.

Following Jordan, delay that can be attributed to the defence does not count towards the presumptive ceiling of 30 months; however, institutional delay that is not the fault of the Crown does count. If the 30 month ceiling is exceeded, the Crown must show that either a discrete event occurred that was reasonably unforeseeable and unavoidable, or that the case was particularly complex and required an unusual amount of trial time or preparation.

Justice Bird found that the defence was responsible for approximately eight months of delay, leaving a net delay of 45.5 months. The Crown argued that its conflict of interest motion was a discrete exceptional event that could not have been foreseen or avoided, and that the facts of this case were particularly complex and required an inordinate amount of time. However, the court rejected both of these arguments, finding that "[t]he difficulties in this case arose because the CFIA did not devote sufficient resources to the management of this file."

As this case began before the Supreme Court's decision in Jordan, the court had to consider whether the delay was also unreasonable under the previous Morin framework. The court found that even under the old test, given that there had been prejudice both to the accused and to their rights to a full answer and defence, the 11(b) rights of the accused were violated and the charges ought to be stayed.

The Crown did not appeal the decision. 

The real cause of the delay in this case appears to have been the extremely slow and piecemeal disclosure received from the CFIA investigator, the only person at the CFIA tasked with reviewing and producing the documents necessary to allow the accused to make full answer and defence. While the court indicated that defence counsel's requests had been numerous and extremely detailed, the lack of resources devoted to this case was problematic in the court's view. Given the fact that the CFIA and many other regulatory agencies are currently understaffed and underfunded, we can expect to see further pressure put on the enforcement functions of regulatory agencies like the CFIA in the post-Jordan world.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Venetia Whiting
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