Right to a Trial Within a Reasonable Time
The right to a trial within a reasonable time is guaranteed by s. 7 and 11(b) of the Charter.
Section 11(b) of the Canadian Charter entitles a "person charged with an offence ... the right ... to be tried within a reasonable time". Where there is a breach of this right, the available remedy to a court is a stay of proceedings.
The objectives of both s. 7 and 11(b) of the Charter include ensuring "the fair and timely operation of the criminal justice system".
Section 11(b) protects three individual rights:
- the accused's right to security of person by minimizing the anxiety and stigma of criminal proceedings;
- the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and
- the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.
It also protects two societal rights:
- the public's interest in having our laws enforced by having those who break the law tried quickly; and
- the public's interest in having those accused of crime dealt with fairly.
Jordan Presumptive Ceiling
The "Jordan" framework sets a presumptive acceptable period of delay between charge and conclusion of trial is 18 months for provincial court trials and 30 months for superior court trial. The period is calculated from the time of charging until the actual or anticipated end of trial, minus defence delays. Where the ceiling is exceeded there is a presumption of unreasonablness which will amount to a breach of s. 11(b) of the Charter.
Compelling "case-specific factors" are still relevant considerations to reasonableness of the delay.
Rebutting the Presumptive Ceiling
The presumption can be rebutted where the Crown can show exceptional circumstances.
Stay While Within the Presumptive Ceiling
A stay is still available while the period of time is within the ceiling, so long as the defence can establish:
- it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and
- the case took markedly longer than it reasonably should have.
A stay within the presumptive ceiling should be considered "rare" and "limited to clear cases".
Obligations on the Crown and Defence
The Crown has an obligation to bring an accused to trial and is also obligated to ensure that "the trial proceedings, once engaged, are not unduly delayed."
Seriousness Not a Factor
The seriousness or gravity of the offence does not pay in the consideration for delay.
R v Dias, 2014 ABCA 402 (CanLII)
R v Sapara, 2001 ABCA 59 (CanLII) per Russell JA
- R v Qureshi, 2004 CanLII 40657 (ON CA) per Laskin JA at paras 8 to 10
Qureshi at paras 8 to 10
- R v Jordan, 2016 SCC 27 (CanLII)
Jordan, ibid. at paras 47 and 48
Jordan, ibid. at para 68
Jordan, ibid. at para 51
Jordan, ibid. at para 47, 48, 69 to 81
Jordan, ibid. at para 48, 82, 105
Jordan, ibid. at paras 48, 69
R v Heaslip (1983), 36 C.R. (3d) 309 (Ont. C.A.) at p. 321
R v Adam et al, 2006 BCSC 350 (CanLII) The crown has an obligation to"bring the accused to trial within a reasonable time”
R v Godin, 2009 SCC 26 (CanLII) at para 11 per Cromwell J
- see R v MacDougall, 1998 CanLII 763 (SCC),  3 SCR 45 per McLachlin J (as she was) at para 49.
Jordan, supra at para 81
The shorter time to trial is necessary so that:
- the young person can better appreciate the connection between behaviour and consequences;
- the distorted perception of time by a young person compared to adults;
- the need to deal with dispositions speedily while youth is still in formative years.
Findings of fact relating to delay however are reviewed on a standard of palpable and overriding error.
The ultimate decision to stay a proceeding as a remedy under s.24(1) of the Charter on finding of a breach is owed deference. However, it is a question of law reviewable on a standard of correctness.
R v Khan, 2011 ONCA 173 (CanLII), at para 18, appeal refused  S.C.C.A. No. 195
R v Schertzer, 2009 ONCA 742 (CanLII), at para 71, appeal refused  S.C.C.A. No. 3
R v Williamson, 2014 ONCA 598 (CanLII) - the characterization of delay is the application of a legal principle to fact
R v Komstantaskos, 2014 ONCA 21 (CanLII) at para 5
R v D(C), 2014 ABCA 333 (CanLII) at para 5
R v Konstantakos, 2014 ONCA 21 (CanLII) at para 5
R v Vassell, 2015 ABCA 409 (CanLII) at paras 5 or 7
Schertzer, supra, at para 71
D(C), supra, at paras 5 to 6
R v Bellusci,  2 SCR 509, 2012 SCC 44 (CanLII)
R v Conway, 1989 canLII 66 (SCC),  1 SCR 1659 at p. 1676
R v Widdifield, 2014 BCCA 170 (CanLII),
Calculating Length of Time
Period of Consideration
The period that can be considered begins at the laying of the charge and extends until the end of trial. Delay can also apply to the point of sentencing. However, the interests implicated in a delay to sentencing are not exactly the same as those implicated to trial.
One cannot usually take into account events occurring before the charges were laid.
Start and End of Time
The period considered begins at the time the accused is charged and ends at the end of the trial. The language of s. 11(b) provides the right to a "person charged with an offence", suggesting the right will normally apply to those who have been charged only. There is exceptional circumstances where delay pre-charge may apply as well.
Anticipatory delay is generally not considered.
Where a replacement information is laid charging effectively the same offence as an initial information, the time is still calculated from the time of the first information.
Section 11(b) does not apply to delays arising from an appeal from conviction (ie. appellate delay).
The time between the discharge of an information by a preliminary inquiry judge and the re-commencement of a charge by a direct indictment does not count as delay time.
R v Kalanj, 1989 CanLII 63 (SCC),  1 SCR 1594
R v Nguyen, 2013 ONCA 169 (CanLII) at para 49
R v MacDougall, 1998 CanLII 763 (SCC), (1998), 128 CCC (3d) 483 (S.C.C.)
R v Gallant, 1998 CanLII 764 (SCC),  3 SCR 80
R v DN, 1993 CarswellYukon 6, (1993) 27 C.R. (4th) 114 (YKTC)(*no link)
- R v AK and AV (2005), 195 CCC (3d) 501 (Ont. C.A.), 2005 CanLII 11389 at 162
see R v Sanghera, 2012 BCSC 711 (CanLII) at para 39
R v Carter, 1986 CanLII 18 (SCC),  1 SCR 981, at paras 11, 13
R v Kalanj, 1989 CanLII 63 (SCC),  1 SCR 1594, at para 17
R v Morin, at para 35
R v Milani, 2014 ONCA 536 (CanLII), at para 25
- see below
R v Naderi, 1996 CanLII 8168 (ON SC), (1996), 40 CRR (2d) 312 (Gen Div)
R v Lachance, Lachance, 2002 CMAC 7 (CanLII)
- R v Norman, 1988 CanLII 5407 (NL SCTD) at para 7 ("It was an error in law to accept the anticipated delay as a breach of the respondent's right to be tried within a reasonable time")
R v Travassos,  OJ 1877 (ONCJ)(*no link)
- R v Potvin, 1993 CanLII 113 (SCC),  2 SCR 880
R v Milani, 2014 ONCA 536 (CanLII)
Application to Pre-Jordan Cases / Transitional Exception
The "Jordan" framework should be applied "contextually and flexibly for cases currently in the system".
Where the administrative guidelines are exceeded it is only a factor to consider and does not automatically compel a breach of s. 11(b) of the Charter.
The new framework does not apply strictly to traditional cases since "the analysis must be contextually sensitive to the law and the legal culture that exists at the relevant time".
The burden is upon the Crown to show that the transitional exception applies.
The Crown must show that the net time is justifiable on the basis of "reasonable reliance on the law as it previously existed".
Defence Waiver of Delay
Any period of time that has been waived by the defence must be subtracted from the total time delayed.
The burden is on the crown to prove there has been a waiver of any delay rights.
A waiver must be clear, unequivocal and with full knowledge of the right being waived.
An agreement as to a date does not amount to a waiver where the agreement is a "mere acquiescence to the inevitable". The absence of any evidence that the "consents amount to acquiescence in the inevitable, the consents constitut[e] wavier or, as actions of the accused, were attributable to him".
Jordan Delay by Defence
Delay attributable to the defence in a Jordan analysis includes all "unreasonable actions" on the part of the defence.
Unreasonable actions include:
Courts may consider "the level of diligence displayed by the accused" as a relevant factor.
Courts are directed to incentivize counsel to move matter forward in order to eliminate the "culture of complacency".
R v Sharma,  1 SCR 814, 1992 CanLII 90 (SCC) at p. 191 (CCC)
R v Morin,  1 SCR 771, 1992 CanLII 89 (SCC) at p. 15 per Sopinka J
R v White, 1998 CanLII 13319 (NL CA), (1998), 160 Nfld. & P.E.I.R. 309 (N.L.C.A.) at para 10
R v Richard, 1996 CanLII 185 (SCC),  3 SCR 525
R v Askov,  2 SCR 1199, 1990 CanLII 45 (SCC) at pp. 48l to 482 (CCC) per Cory J
Morin, supra at p. l5 (CCC)
R v Pusic, 1996 CanLII 8215 (ON SC), (1996), 30 O.R. (3d) 692 (Ont. Ct. Gen. Div.) (*no link) at pp. 70l to 702
R v Richards, 2012 SKCA 120 (CanLII) at para 25
R v Brassard,  4 SCR 287, 1993 CanLII 42 (SCC), per L'Heureux-Dube J, at p. 287, 288 (SCR) R v Nuosci, Nuosci,  4 SCR 283, 1993 CanLII 40 (SCC), per Sopkina J, at p. 284 (An “[a]greement to suggested dates cannot be characterized as acquiescing in the inevitable in the absence of evidence to that effect”)
Brassard, ibid. at p. 287 (SCR)
Jordan, supra at para 193
- Jordan, supra at para 193
Jordan, supra at para 193
Jordan, supra at para 86
Jordan, supra at paras 94 and 104
Remedy on Breach
Where a delay is unreasonable under s. 11(b) of the Charter, the only available remedy is a stay of proceedings.
The standard for a stay in only the "clearest of cases" does not apply to s. 11(b) as a stay is the only available remedy.
Where the breach is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.
Postponement of a sentencing hearing can in some circumstances result in mitigation of sentence.
The applicant must establish an evidentiary foundation for their application.
The judge should generally not raise a Charter delay issue on behalf of the accused.
Often counsel can draft an agreed statement of fact on the history of proceedings.
The applicant should also file a transcript of the previous proceedings.
The applicant must give sufficient notice to the Crown to allow them to respond with evidence.
- R v GCM, 1991 CanLII 7057 (ON CA) ("Generally, s.11(b) applications are matters for the trial court. For it to succeed, there must be an evidentiary foundation for the application. Absent evidence, the alleged violation cannot be found."
- R v Foisy, 2000 CanLII 16959 (ON CA)
- GCM ("In many cases, the history of the proceedings will best be dealt with by an agreed statement of fact.")
- R v Silveira,  O.J. No. 1622 (S.C.J.)(*no link)
R v Firth, 1992 CanLII 2585 (NS CA) per Hallett JA
GCM ("Notice should be given to the Crown. I do not think rigid rules should be established by this court concerning the amount of notice required. It should at least be reasonable - that is, sufficient to give the Crown an opportunity to respond.")