R v Zammit

R. v. Zammit

[2016] O.J. No. 4212
Ontario Superior Court of Justice — K.P. Wright J. | August 10, 2016

Background

Earl Zammit was charged on August 29, 2013. His case crawled through the system for nearly three years before reaching trial. The Crown completed their case at the preliminary hearing on April 8, 2015, but the matter was adjourned to December 3, 2015 — the first available date — so defence could examine three police officers. Only one officer showed up that day (another was on a course, the third was on vacation despite being notified of the court date). The remaining officers were finally examined on March 30, 2016, and trial was set to complete on August 19, 2016.

This case was decided after the Supreme Court's landmark Jordan decision, which established strict time limits for criminal proceedings. Zammit applied for a stay of proceedings under section 11(b) of the Charter, arguing his right to trial within a reasonable time had been violated.

Issues

1. Did the 36-month delay violate Zammit's Charter right to trial within a reasonable time?
2. Should the 12 months following the Crown's completion of their case be attributed to defence delay?
3. Did the transitional exception in Jordan apply to excuse the delay?

The Defence Witness Trap

The Crown made a bold argument: since they completed their case on April 8, 2015, the entire 12-month delay that followed should be blamed on the defence because defence wanted to examine police witnesses. Justice Wright firmly rejected this logic. The court ruled that "absent some evidence of tactics designed to delay, the examination of legitimate witnesses at a preliminary hearing creates delay that must weigh against the defence."

The judge found the defence examinations were "focused and very much on point" — covering legitimate topics like notebook entries and observations. Defence counsel completed all examinations in under one day, exactly as originally estimated. The real culprit? The court being overbooked caused the first eight months of delay, and inadequate court scheduling information made it impossible to blame defence for the remaining four months.

Jordan's 30-Month Ceiling

Under the Jordan framework, Superior Court cases must complete within 30 months or face a presumption of unreasonableness. At 36 months, Zammit's case sailed past this ceiling. The Crown had to prove "exceptional circumstances" justified the delay — circumstances that were unforeseeable, unavoidable, and couldn't be reasonably remedied. They failed. The judge found this was "a simple and straightforward case" with no exceptional complexity, and that institutional resource shortages don't qualify as exceptional circumstances.

Key Takeaway

Calling legitimate witnesses at a preliminary hearing doesn't count as defence delay — even if it extends the proceedings.

If you're facing unreasonable delay and the Crown tries to blame your decision to examine witnesses or present a defence, this case shows that exercising your fundamental rights cannot be held against you in a Charter application.