Delay – The New Framework to be Tried within a Reasonable Time
R v Jordan and section 11(b) of the Charter of Rights and Freedoms
What is Section 11(b) of the Charter of Rights and Freedoms?
Section 11(b) of the Charter of Rights and Freedoms states that “any person charged with an offence has the right to be tried within a reasonable time”. This section provides the right to what is often known as a speedy trial.
The Old Framework for a Section 11(b) Challenge
Prior to the Supreme Court of Canada’s decision in R v Jordan, 2016 SCC 27, the framework established to be tried within a reasonable time was established in R v Morin,  1 SCR 771. The Morin framework required the courts to balance four factors to determine if a breach of section 11(b) of the Charter of Rights and Freedoms occurred: 1) the length of the delay; 2) defence waiver; 3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional deal, and other reasons for delay; and 4) prejudice against the accused’s interests in liberty, security of the person, and a fair trial.
According to the Supreme Court of Canada, in R v Jordan, the Morin framework suffers from a number of doctrinal shortcomings. The major problem with the Morin framework is its unpredictability. It has been interpreted to permit endless flexibility. This makes it difficult to assess when an actual breach has occurred. Determining whether a breach occurred led to complex applications that placed a burden on the legal system.
Another issue with the Morin framework is the determination of whether the accused suffered from prejudice. The treatment of prejudice by the courts has become confusing, leaving courts to determine whether prejudice is actual or inferred. According to the majority in Jordan, prejudice using the Morin test may not be easy to distinguish.
The new framework is simplified and rather establishes presumptive ceilings for unreasonable delay – to the exception of defence delays, between the time that charges are laid and trial.
The new ceilings are 18 months for charges going to trial in provincial court, and 30 months for charges going to superior court (Jordan, at para 49). At para 105, under the heading, “Concluding Comments on the New Framework”, summarize the 11(b) framework as follows:
There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.
Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.
The majority justifies this new framework by describing the problems with the test applied in Morin explained above.
Below, is a quick review of the new procedure used for analysing a section 11(b) issue:
(A) Is an unreasonable delay inquiry justified?
(B) What is a reasonable time for the disposition of a case like this one?
(1) Institutional delay
(2) The inherent time requirements of the case
(3) Conclusion on objectively reasonable time requirements
(C) How much of the delay that actually occurred counts against the state?
(1) Delay attributable to the accused
(2) Extraordinary and unavoidable delays that should not count against the state
(D) Was the delay that counts against the state unreasonable?
(1) Can the delay beyond what would have been reasonable be justified?
(2) The role of prejudice in the analysis
(3) Extraordinary reasons for the delay
(4) Are there especially strong societal interests in the prosecution on the merits of the case?
It is noteworthy to mention that delay below the presumptive ceiling may still be considered a breach of s. 11(b), however, the accused bears the onus to prove that the delay was unreasonable. In this situation, the accused must show that; 1) meaningful steps were taken by the accused to demonstrate a sustained effort to expedite the proceedings; and 2) the case took longer that it should have in a reasonable situation.
The Supreme Court of Canada also clarified that the proper remedy for a breach of 11(b) is a stay of proceedings. Although the court did not directly comment on a stay of proceedings as the proper remedy, the court determined in this case that it is the appropriate.
R v Jordan is an important decision for all members of the criminal justice system. The new framework puts pressure on all actors, including, Crown counsel, defence counsel and the court system as a whole. Although constitutional challenges will continue to surround 11(b) of the Charter, for now, delay must remain below the presumptive ceiling detailed within this new framework.
We Can Help
Having a thorough understanding of the law is critical to a successful defence. At Smordin Law, we are experienced and know your rights. Do not let a delay prejudice your case. One example of how delay can impact you personally is being kept on bail for an unnecessarily long time. If you are experiencing an unnecessary wait with a legal matter, contact the experts at Smordin Law for a free consultation.