Waiver and Defence-Caused Delay

• Author: Tracy Kozlowski/Joanne Stuart
• Pages: 87-102

87

 6

Waiver and Defence-Caused Delay

A. WAIVER

Delay to be subtracted from the calculation of the total delay in a pros-

ecution to take account of defence conduct or inaction can be charac-

terized either as (1) waiver; or (2) defence-caused delay. The accused may

agree that some period of delay ought not to be counted toward the

ceiling count. Such delay is frequently waived in circumstances where

the defence requires an adjournment for some purpose (excluding

legitimate preparation time), or where counsel of choice cannot accept

earlier dates. Waiver of some period of delay can be either explicit or

implicit. Explicit waiver is easy to identify. Either on record or in writ-

ing, the accused will indicate that a particular period of delay is waived.

That period of delay will accordingly not be included in the calculation

of net delay. It will be deducted from the total delay. It must always be

recollected that waiver refers to waiver of a particular segment of time,

not to overall waiver of the section 11b Charter right.

Importantly, the Supreme Court has indicated that there are lim-

its to the extent that an accused may be permitted to waive delay. As

all justice system participants are tasked with ensuring that trials are

concluded within a reasonable period of time, trial judges are obliged

to take action where delay is simply too long, notwithstanding that it

is waived. Trial judges must assess the legitimacy of steps taken by the

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]; see R v Conway, 1989

CanLII 66 (SCC) at para 47; R v Jordan, 2016 SCC 27 at para 61 [Jordan].

88 A Proactive Practitioner’s Guide to Section 11(b) of the Charter

parties as a means to prevent delay and as part of the overall shi in

courtroom culture commanded by R v Jordan. For example, notwith-

standing that delay caused by an adjournment is waived, a court may

deny such request where it would result in an unacceptably long period

of delay. In another matter, a conict may arise as between right to

counsel of choice and the judge’s obligation to prevent unreasonable

delay pursuant to section 11b of the Charter. It remains to be seen

whether in all cases an accused will be permitted to delay a trial until

counsel of choice is available to oer representation, or whether there

is some time limit in that regard. In some jurisdictions, the issue has

already been anticipated. In Manitoba, for example, the Practice Direc-

tions of the Court of King’s Bench in that province indicate that in order

to accommodate an accused’s counsel of choice, the accused is permit-

ted to waive as much as six months of delay so long as the Crown con-

sents. By necessary implication, any waiver of more than six months

would not be permitted having regard to the judge’s duty to prevent

unreasonable delay, notwithstanding the accused’s choice of counsel.

Similarly, circumstances may arise where one co-accused insists upon

counsel of choice and oers a waiver of the resultant delay, but the delay

is not acceptable to the other accused. The judge will have to consider

whether either the rst accused must be forced on with or without

counsel of choice or whether severance is the solution. What is clear

is that post-Jordan, “judges cannot passively sit back and let the Crown,

or the accused — even if they are self-represented — ‘rag the puck’ and

unnecessarily prolong criminal proceedings.”

1) Implicit Waiver

The authority predating the Supreme Court’s decision in Jordan allowed

that waiver may be inferred where the defence agreed to the setting of

a particular date, so long as acceptance of that date did not amount

2 Jordan, above note 1; see also R v Thanabalasingham, 2020 SCC 18 at para 9 [Thana-

balasingham]; R v Cody, 2017 SCC 31 at paras 36–42 [Cody].

3 Cody, above note 2 at para 37; Thanabalasingham, above note 2 at para 9.

4 R v Morris, 2018 MBQB 85 at para 32; Practice Directions — Manitoba Court of King’s Bench.

5 See, for example: R v Gatt, 2017 ONSC 3563 at para 73; R v Kumar, 2020 ONSC 694.

6 R v Nowack, 2018 ONCA 784 at paras 11–13, leave to appeal dismissed (without reasons)

[2018] SCCA No 444.