The Supreme Court of Canada Institutes a New Framework for Unreasonable Delay
How much delay will the justice system tolerate before justice delayed becomes justice denied? Drawn out court proceedings are the cause of great distress for both the accused and the complainant. Not only is it in the public interest that cases are resolved expeditiously, it is also a constitutionally entrenched right. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that any person that is charged with an offence has the right to be tried within a reasonable time. Nonetheless, Canadian courts have been plagued by consistent and lengthy institutional delays. Consequently, in the recent landmark case of R v Jordan, the Supreme Court of Canada established a new framework for determining whether an unreasonable delay has occurred.
To begin with, any delay that surpasses the ceiling is presumptively unreasonable. For cases heard in provincial court, the presumptive ceiling is 18 months, whereas the ceiling for cases tried in the superior court is 30 months. Delays that are caused by the defence are not counted towards the presumptive ceiling. Upon exceeding the ceiling, the burden shifts to the Crown to disprove the presumption of unreasonableness by showing that exceptional circumstances caused the delay. The only basis upon which the Crown can justify a delay that exceeds the ceiling is by showing that there was an exceptional circumstance. Therefore, justification for the delay cannot be grounded in the seriousness of the offence, persistent institutional delay, or the lack of prejudice.
Exceptional circumstances are those that go beyond the Crown’s control as they are reasonably unforeseen, unavoidable or cannot be reasonably remedied. For instance, delays relating to discrete events, such as illnesses, family emergencies or an unexpected event at trial (such as a recanting witness) are subtracted from the reasonableness calculation. Furthermore, a delay is considered reasonable if the exceptional circumstance is caused by the case’s complexity. The nature of the evidence and/or the legal issues involved contributes to the complexity of a case. For example, in regards to evidence, there may be voluminous disclosure, a large number of witnesses, the need for expert evidence, or the charges cover an extended period of time. The presence of novel legal issues, and numerous charges and pre-trial applications will also add to a case’s complexity.
A delay can still be unreasonable even if it falls below the presumptive ceiling. In these situations, the defence must establish two criteria in order for the delay to be deemed unreasonable, namely: 1) it took meaningful steps that illustrate a continuous effort to expedite the proceedings; and 2) the case took significantly longer than it reasonably should have. First, minor effort on part of the defence, such as requesting an earlier trial date, is not sufficient to demonstrate a sustained effort to accelerate proceedings. Rather, the defence must show that it endeavoured to set the earliest possible hearing dates, was responsive and cooperative with the court and the Crown, promptly notified the Crown when an issue with delay arose, and produced all applications efficiently and prudently. Second, a case may take longer than it reasonably should have due to the complexity of the case, local concerns, and absence of reasonable steps taken by the Crown to advance the proceedings.
For cases that are currently in the system, the Supreme Court held that the new framework must be applied in a contextual and flexible manner. The reason for this variation is the notion that it is unfair to impose these requirements on parties that had no notice of these standards. Hence, in cases where the ceiling is exceeded, a transitional exceptional circumstance will apply where the Crown demonstrates that the time it has taken to complete the case is justified based on the parties’ reliance on the previous state of the law. Furthermore, in cases where the delay falls below the ceiling, the defence need not show that it took steps to expedite matters for the period of delay preceding R v Jordan. However, the trial judge may take into consideration action or inaction by the accused that may have impeded a timely trial in the assessment of reasonable delay.
This decision will have a significant impact on the way the justice system operates. It will encourage the Crown to seriously evaluate which cases it wishes to prosecute and for what, and resolve those matters which unnecessarily use up precious court time. Likewise, under this new regime, Crown counsel must be extremely diligent when delivering on their disclosure obligations. They must formulate plans for complicated prosecutions, and proactively collaborate with the defence when appropriate. The previous Morin framework was criticized for its retrospective inquiry, as its assessment of delay ensues only after the delay has occurred. On the other hand, this decision works not only to redress the delay, but also to prevent it from happening in the first place.
It remains to be seen how the stakeholders in the justice system react to this bold decision from the Supreme Court. Crown Attorneys and police might have to weed out smaller, less serious cases from the system. More cases will have to be diverted. More lenient sentencing positions might be forthcoming, in minor cases. Peace bonds in first-time domestic cases might make a welcome return. Either way, the Supreme Court has, in this one decision, likely changed the way the criminal justice system will operate from now on.