Illness of essential witness, pandemic exceptional circumstances justifying trial delay

A delay caused by an illness of the lead investigator in a fraud and theft case, along with the pandemic, is an exceptional circumstance in calculating whether the presumptive ceiling to hold a trial was breached, the New Brunswick Court of Appeal has ruled.

In Kelly v. R., 2022 NBCA 46, Nancy Kelly was charged with committing fraud and theft in February 2018. The case was filed before the Provincial Court, where the presumptive ceiling for a trial is 18 months.

Because of illness of the lead investigator and the restrictions implemented by the COVID-19 pandemic, trial ended in January 2021, well beyond the ceiling. However, the judge refused Kelly’s section 11(b) calculation application, stating that the investigator’s illness was an exceptional circumstance.

There was no doubt that the ceiling was exceeded and, on appeal, Kelly asserted that the causes did not constitute exceptional circumstances outside the Crown’s control. She maintained that the investigator was not an essential witness and trial could have proceeded in his absence.

The appellate court dismissed the appeal.

Severe illness, pandemic exceptional circumstances

“Determining whether circumstances are ‘exceptional’ will depend on the trial judge’s good sense and experience,” said the appellate court.

In this case, the trial judge determined that the investigator was an essential witness since they dealt with numerous documents and banking records and, further, the judge also decided that the reason for the officer’s absence – severe illness – was unforeseen, the appellate court said.

The appellate court also found that, despite the trial dates set at the earliest possible opportunity for the investigator to testify, COVID-19 – another exceptional circumstance – further delayed trial. The  court also agreed that the entire duration of the lead investigator’s absence should be excluded.

Second, the appellate court found that the delay was properly mitigated. Contrary to Kelly’s assertion, the Crown made great efforts to ensure the investigator’s attendance and Kelly’s argument that the Crown could reconfigure its case impeded on the wide discretion afforded to it in conducting its case, said the court.

The appellate court ruled that the delay was properly calculated and dismissed the appeal.