On behalf of Edelson Clifford D’Angelo Friedman LLP posted in Criminal Defence on July 30, 2016.

The Canadian Charter of Rights and Freedoms states that “any person charged with an offence has the right… to be tried within a reasonable time”.[1] When determining whether a trial has been unreasonably delayed, the courts have always had to balance society’s interest in pursuing charges to maintain the publics’ confidence in the justice system, with the accused’s interest in having the matter adjudicated as soon as possible. [2]

The Supreme Court of Canada looked at this issue in R. v. Askov[3] In this case, the Court came up with a four factor framework for determining delay. This test looked at (1) the length of the delay; (2) the explanation for delay, meaning could the delay be attributed to the crown, the defence, or the justice system; (3) whether the accused waived his right to be tried in a reasonable time; and (4) whether the accused was prejudiced by the delay. Askov also declared that a delay between six to eight months from committal to trial could be deemed unreasonable.

Consequently, Askov resulted in over 47,000 criminal charges being stayed or dropped, in Ontario alone, due to delay.[4]Two years later, the Supreme Court revised the law of unreasonable delay in the case of R. v. Morin. In this case, the Court re-worked the four factor test in Askov to also account for inherent time requirements of a case, limits on institutional resources, and other potential causes for delay. Morin clarified that the length of delay starts as soon as a person is charged and runs until the end of the trial. The majority in Morin also set out a new guideline for delay ranging from 14 and 18 months (eight to ten months for institutional delay in the provincial courts and six to eight months from committal to trial). [5]

The Morin framework was used for decades to determine unreasonable delay, and had been the leading authority until recently. On July 8, 2016, the Supreme Court released its decision in the case of R. v. Jordan. Justice Abella, writing for the majority, criticized the Morin framework as being “too unpredictable, too confusing, and too complex.”[6] Under Morin, the accused had the onus of proving that the delay was unreasonable and that it caused prejudice. In Jordan, the majority changed this presumption. Jordan introduced a “presumptive ceiling” of 18 months for provincial courts and 30 months for superior court cases, from the time the charge is laid to the end of the trial.[7] When calculating the time for delay, delay that can be attributed to or waived by the defence does not count towards the presumptive ceiling.

After the presumptive ceiling has been reached, the delay is presumed to be unreasonable and the Crown has the onus to rebut the presumption. This presumption of unreasonableness can only be rebutted by showing that there is an exceptional circumstance that was “reasonably unforeseen, reasonably unavoidable, and cannot reasonably be remedied”.[8] Justice Abella then created two general categories of exceptional circumstances, one being a discrete event, such as an illness, the other being for particularly complex cases where more time is reasonably required.[9]

If the delay is below the presumptive ceiling, then it is the defence that has the burden of showing that the delay is unreasonable. Defence must establish that he or she took meaningful steps to advance the proceedings and the case took significantly longer than it should have.[10]

Jordan is a significant shift in how courts determine whether delay is reasonable or unreasonable. Rather than the Morinfour factor test, that focused on prejudice to the accused, this new test puts a time limit on delay. Justice Abella commented that the Morin framework was retrospective and did not motivate parties to take active measures to prevent delay. The new Jordan regime appears to do just that. Switching the onus to the Crown puts the government on notice that we need to get these cases moving along. Additionally, by subtracting defence delay and putting the onus on the defence to show that they have made efforts to expedite the mater before delay hits the presumptive ceiling, appears to be a good way to motivate defence counsel to keep the matter moving as smoothly as possible. However, the judges in the minority and others in the legal community are worried that reducing reasonableness to a numerical ceiling is not practical and will negatively affect the administration of justice. There is concern that even with the transitional exception that the majority has put in place, that having a numerical limit on reasonable delay will result in thousands of charges being stayed or dismissed.

Whether the new system under Jordan will help alleviate the problem of delay, or if it will result in thousands of stays is unknown, but at least for now there is a numerical limit that will be guiding the court in determining unreasonable delay.

[1] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] R. v. Morin, [1992] 1 SCR 771 at paras. 85-86 [Morin]

[3] R. v. Askov, [1990] 2 SCR 1199.

[4] Morinsupra note 2 at para 7.

[5] Ibid.

[6] R. v. Jordan, 2016 SCC 27 at paras 38.

[7] Ibid at para 5.

[8] Ibid at para 105.

[9] Ibid at para 71.

[10] Ibid at para 82.