Section 11(b) - Unreasonable Delay
Section 11(b) of the Charter protects the right to be tried within a reasonable time.
11. Any person charged with an offence has the right
(b) to be tried within a reasonable time;
PURPOSE
Section 11(b) serves to protect “presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial” (R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 at para 20).
The purpose of this provision, however, extends beyond protecting the interests of an accused. Victims of crime and their families have a similar interest in the expedient completion of a criminal proceeding, as does the overall public confidence in the administration of justice (Ibid at paras 24-25).
Lastly, as articulated in Jordan, the system has “lost its way” (Jordan, at para 29) and as such, the framework set out in R v Morin, [1992] 1 SCR 771, [1992] S.C.J. No. 25, 71 C.C.C.(3d) 1 (“Morin”) has “given rise to… a culture of delay and complacency.” As such, the SCC stated that along with the other players in the judicial system, the “Court has a role to play in changing courtroom culture and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time” (Jordan, at para 45).
JORDAN FRAMEWORK
In 2016, the Supreme Court of Canada released R v Jordan, 2016 SCC 27, establishing the new framework governing what constitutes unreasonable delay under s. 11(b) of the Charter. This framework replaced the previous Morin framework.
The Jordan framework establishes 2 presumptive ceilings beyond which delay becomes unreasonable (Jordan at para 46).
Presumptive Ceilings
18 months - Matters proceeding before the provincial court
Most recently, in R v Nguyen, 2020 ONCA 609, affirmed that the 18 month provincial court ceiling applied to Part I provincial offences.
30 months - Matters proceeding before the superior court level (or cases going to trial at the provincial level following a preliminary inquiry)
The framework in Jordan, above, is a two step process:
Step 1:
(a) calculate the total delay from the date of charge to the actual or anticipated end of trial and
(b) deduct any delay attributable to defence delay.
Step 2:
(a) If the delay exceeds the presumptive ceiling: the onus shifts to the Crown to rebut the presumptively unreasonable delay
(b) However, if the delay falls below the presumptive ceiling: the onus shifts to the defence to demonstrate why the delay is unreasonable.
Step 1(a): Calculating Delay and the Presumptive Ceiling
To calculate the delay, courts look to the date of the charge and calculate the length of time that has passed until the actual or anticipated end of trial
The SCC provides this presumptive ceiling in order to give direction to important players such as the police, Crown prosecutors, the judiciary, defence and the accused, on their constitutional obligations with regards to s 11(b) (Jordan, at para 50).
o Interestingly, the Court takes a hard stance to state that the presumptive ceiling is “…not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable” ((Jordan, at para 56).
Step 1(b): Accounting for Defence Delay
Once the total delay time is calculated, the next determination is the amount of time to be subtracted due to defence delay.
Defence delay has two components:
(1) delay waived by defence or
Waiver in this context must be clear and unequivocal with full knowledge of the consequences of the waiver.
It can be expressed either explicitly or implicitly.
(2) delay caused by the actions of defence (Jordan, at paras 60-3).
Delay attributable to defence can mean direct actions of the defence that are deliberately employed to delay trial.
The rationale being that defence should not benefit from its own delay (Jordan, at para. 60).
However, legitimate actions taken to provide defence or respond to the charges are not within the scope of defence delay (Jordan, at para 65).
Therefore, the only deductible defence delay is that which
(1) is solely or directly caused by the accused person; and
(2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. (R v Cody, 2017 SCC 31, [2017] 1 SCR 659 at para 30)
Step 2 (a): Above the Presumptive Ceiling and Rebutting the Presumptive Ceiling
If the total delay from the charge to the [actual or anticipated] end of trial, minus defence delay, exceeds the ceiling, the delay becomes presumptively unreasonable.
In this circumstance, the Crown then bears the onus to rebut the presumption and must establish the presence of exceptional circumstances (Jordan, at para 47).
Exceptional circumstances lie outside the Crown's control in the sense that
(1) they are reasonably unforeseen or reasonably unavoidable, and
(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.
So long as they meet this definition, they will be considered exceptional (Jordan, at para 69)
Step 2 (b): Below the Presumptive Ceiling
If the delay, however, falls below the presumptive ceiling, it is the defence who bears the onus in establishing that the delay is unreasonable.
This can be accomplished through:
(1) demonstrating that the defence took meaningful and sustained steps at expediting the proceedings, and;
Taken efforts to put on record that defence wanted an earlier trial date is not sufficient. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded,
The onus is on the defence to demonstrate that it “attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously” (Jordan, at para 85) That said, defence is to act reasonably, not perfectly.
This requirement reflects the practical reality that a level of cooperation between the parties is necessary in planning and conducting a trial.
(2) the case took markedly longer than reasonably should have (Jordan, at para 48).
Factors that are considered to assess the reasonable time requirements are:
The complexity of the case
Local considerations, and;
Whether the Crown took reasonable steps to expedite the proceedings (Jordan, at para 87)
TRANSITIONAL CASES
When Jordan was released, the Court acknowledged the impact swift changes to law may have in on going matters (Jordan at para 92).
The Court outlined two qualifications in applying the new framework for matters already proceeding in court prior to the release of the decision:
Cases where delay exceeds the ceiling: where charges were brought before release of the decision, a transitional exceptional circumstance may arise allowing for the Crown to satisfy to the Court that the time the case has taken is justified based on the their reasonable reliance on the law as it previously existed (Jordan at para 96). This requires a contextual assessment, and appreciation of the fact that the parties' behaviour cannot be judged against a standard of which they had no notice.
Cases currently in the system which fall below the presumptive ceiling: the criteria of defence delay must also be analyzed contextually “sensitive to the parties' reliance on the previous state of the law” (Jordan at para 99).
POST-JORDAN JURISPRUDENCE
(1) R v Cody, 2017 SCC 31.
This case stresses that every actor in the justice system has the responsibility to combat the culture of complacency and ensure that proceedings are carried out in a manner that is consistent with s. 11(b).
Further, this case reaffirms the holding in Jordan with respect to the importance of preventing delay in order to “effect real change”, as well as the role to be played by all actors in the justice system to achieve that goal. The Court stated: “All justice system participants—defence counsel included—must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter” (Cody at para 35).
(2) R v KJM, 2019 SCC 55.
In KJM, the Supreme Court of Canada confirmed that the ceilings set out in Jordan applies to youth proceedings under the Youth Criminal Justice Act. The SCC declined to set a separate lower ceiling for youth matters.
(3) R v Charley, 2019 ONCA 726.
The Court of Appeal for Ontario held that while the Jordan analysis does apply to post-verdict delay, the presumptive ceilings established in Jordan do not include post-verdict delay (Charley at para 3).
ONCA set a separate 5 month presumptive ceiling for post-verdict delay.
(4) R v KGK, 2020 SCC 7.
In KGK, the Supreme Court of Canada considered the issue of whether presumptive ceilings capture the time taken by a trial judge to deliberate and render a decision. The SCC held that although the right to be tried within a reasonable time extends beyond the end of evidence and argument at trial and encompasses deliberation time, the presumptive ceilings in Jordan do not.
The SCC held that the presumptive ceilings established in Jordan were not intended to cover the entire period of time to which s. 11(b) applies. Properly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument. Including verdict deliberation time in the Jordan ceilings would be impracticable and would reintroduce unpredictability into the 11(b) framework.
The SCC established a test for determining whether an accused’s s. 11(b) rights have been infringed by verdict deliberation. The judge must ask whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. This is a high threshold. This is an objective assessment in which the courts considers the length of the verdict deliberation time, how close to the Jordan ceiling the case was before the judge reserved judgment, the complexity of the case, communications between the judge and the parties, local considerations and length of time taken in similar cases.
(5) R v Thanabalasingham, 2020 SCC 18.
This case reaffirms Jordan and Cody in its emphasis on the role various players in the criminal legal system have with respect to ensuring that s 11(b) is protected. That is, all participants are to take “proactive measures at all stages of the trial process” (Thanabalasingham at para 9).
Specifically, Crown counsel is tasked with “making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently” (Ibid.)
Lastly, the Court makes clear that a violation of s 11(b) does not only disproportionately affect the accused, but also to the detriment of victims and society as whole (Ibid.)
Note: This post was co-written by Katherine Cinerari and Sara Little. Katherine is in her third year at Windsor Law. She is passionate about criminal law and social justice with a focus on protecting and advancing the rights of vulnerable groups. She recently finished summering with Laura Joy’s criminal defence firm and will be clerking for the SCJ in the Central East Region for her articles.