Right to a Trial Within a Reasonable Time

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General Principles

Section 11 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.

A breach of section 7 for delay requires proof of a "significant breach of the principle of fundamental justice".[1]

Purpose
The objectives of both s. 7 and 11(b) of the Charter include ensuring "the fair and timely operation of the criminal justice system".[2]

Section 11(b) protects three individual rights:[3]

  • 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:[4]

  • the public's interest in having our laws enforced by ahving those who break the law tried quickly; and
  • the public's interest in having those accused of crime dealt with fairly.

The Court's exercise focuses on balancing societal rights against individual rights.[5]

Burden/Onus
The burden is on the applicant to prove a breach of s.11(b) of the Charter on a balance of probabilities.[6] The Crown has the burden of proving any waiver of rights.[7] It is preferable that little influence be placed on the burden and rather the matter should turn on the facts of the case.[8]

Considerations
The length of permissible time to have a matter tried cannot be based on the mere passage of time. If it were it would effectively be a judicially created limitation period for criminal offences.[9]

Findings of delay are "extremely fact-specific".[10]

The remaining time must be considered in light of the “interests section 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused”[11]

The societal interests to continue the prosecution will increase with the seriousness of the offence.[12]

There is no duty on the part of the accused to press for a trial.[13] However, any conduct that is inconsistent with the desire for a speedy trial will be considered in the analysis of prejudice.[14]

Obligations on the Crown and Defence
The Crown has an obligation to bring an accused to trial[15] and is also obligated to ensure that "the trial proceedings, once engaged, are not unduly delayed."[16]

There are no obligations on the accused to press for a trial. However, action or inaction by the accused that is inconsistent with the desire for a speedy trial is relevant to the assessment of whether there is any prejudice.[17]

The applicant must first establish that the period raises the issue of “reasonableness”.[18] Once reasonableness has been raised, the delay that can be attributed to the applicant or waived by the applicant must be calculated to be subtracted from the overall calculation.

Remedy
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.[19]

Start and End of Time
The period considered begins at the time the accused is charged and ends at the end of the trial.[20] 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.[21] There is exceptional circumstances where delay pre-charge may apply as well.[22]

The right against delay is extinguished upon a guilty plea as it constitutes a waiver of trial rights.[23] The waiver however does not affect the right to speedy sentencing.[24]

Anticipatory delay is generally not considered.[25]

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.[26]

Gap Time
Section 11(b) does not apply to delays arising from an appeal from conviction (ie. appellate delay).[27]

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.[28]

  1. R v Dias
  2. R v Dias, 2014 ABCA 402 (CanLII)
    R v Sapara, 2001 ABCA 59 (CanLII) per Russell JA
  3. R v Qureshi, 2004 CanLII 40657 (ON CA) per Laskin JA at paras 8 to 10
  4. Qureshi at paras 8 to 10
  5. Qureshi, ibid. at para 10
  6. R v Morin, 1992 CanLII 89, [1992] 1 SCR 77 at para 14 per Sopinka J
    R v Gordon (1998), 1998 CanLII 14952 (ON SC), 130 CCC (3d) 129 (Ont. Ct. Gen. Div.) per Hill J. at para 20
    R v Durette, 1992 CanLII 2779 (ONCA) per Finlayson JA
  7. R v C.S. 1999 CanLII 18948 (NL CA), (1999), 172 Nfld. & P.E.I.R. 175 (N.L.C.A.), at para 9
    R v Buckingham, 2007 NLTD 181 (CanLII), [2007] N.J. No. 367 (S.C.), at para 18
  8. R v Smith, 1989 CanLII 12 (SCC), [1989] 2 SCR 1120 per Sopinka J at para 28
    Morin, supra, at para 33
    R v Tilden, 2009 SKQB 495 (CanLII), [2009] S.J. No. 741 (Sask. Q.B.) at para 19
  9. R v WKL, 1991 CanLII 54 (SCC), [1991] 1 SCR 1091
  10. R v George (D.P.), 2006 MBCA 150 (CanLII), at para 72
  11. C. (R.), at para 7. Also see R v Qureshi 2004 CanLII 40657, (2004), 190 CCC (3d) 453 (Ont. C.A.) at para 12
  12. Morin, supra ("As the seriousness of the offence increase so does the societal demand that the accused be brought to trial.")
    Seegmiller
  13. Morin
  14. R v MacDougall (1998) 128 CCC (3d) 483 at paras 58
  15. 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
  16. see R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45 per McLachlin J (as she was) at para 49.
  17. R v Gordon (1998), 1998 CanLII 14952 (ON SC), 130 CCC (3d) 129 (Ont. Ct. Gen. Div.) Hill J.
    R v D.G.(J.), 1999 CanLII 6234 (BC SC) at para 15
  18. See R v Morin and R v Reid
  19. R v Thomson, 2009 ONCA 771 (CanLII), (2009), 248 CCC (3d) 477 (Ont. C.A.)
  20. see R v Sanghera, 2012 BCSC 711 (CanLII) at para 39
    R v Carter, 1986 CanLII 18 (SCC), [1986] 1 SCR 981, at paras 11, 13
    R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594, at para 17
    R v Morin, at para 35
  21. R v Milani, 2014 ONCA 536 (CanLII), at para 25
  22. see below
  23. R v Naderi, 1996 CanLII 8168 (ON SC), (1996), 40 CRR (2d) 312 (Gen Div)
    R v Lachance, Lachance, 2002 CMAC 7 (CanLII)
  24. Lachance, ibid.
  25. 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")
  26. R v Travassos, [2003] OJ 1877 (ONCJ)(*no link)
  27. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880
  28. R v Milani, 2014 ONCA 536 (CanLII)

Appeals

The standard of review of the analysis of the delay factors and allocation of time periods is reviewable on a standard of correctness.[1]

Findings of fact relating to delay however are reviewed on a standard of palpable and overriding error.[2]

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.[3] However, it is a question of law reviewable on a standard of correctness.[4]

  1. R v Khan, 2011 ONCA 173 (CanLII), at para 18, appeal refused [2011] S.C.C.A. No. 195
    R v Schertzer, 2009 ONCA 742 (CanLII), at para 71, appeal refused [2010] 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
  2. Schertzer, supra, at para 71
    D(C), supra, at paras 5 to 6
  3. R v Bellusci, [2012] 2 SCR 509, 2012 SCC 44 (CanLII)
  4. R v Conway, 1989 canLII 66 (SCC), [1989] 1 SCR 1659 at p. 1676
    R v Widdifield, 2014 BCCA 170 (CanLII),

Jordan Framework

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.[1] The period is calculated from the time of charging until the actual or anticipated end of trial, minus defence delays.[2] Where the ceiling is exceeded there is a presumption of unreasonablness which will amount to a breach of s. 11(b) of the Charter.[3]

Compelling "case-specific factors" are still relevant considerations to reasonableness of the delay.[4]

Rebutting the Presumptive Ceiling
The presumption can be rebutted where the Crown can show exceptional circumstances.[5]

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:[6]

  1. it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and
  2. 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".[7]

  1. R v Jordan, 2016 SCC 27 (CanLII)
  2. Jordan, ibid. at paras 47 and 48
  3. Jordan, ibid. at para 68
  4. Jordan, ibid. at para 51
  5. Jordan, ibid. at para 47, 48, 69 to 81
  6. Jordan, ibid. at para 48, 82, 105
  7. Jordan, ibid. at paras 48, 69

Application to Pre-Jordan Cases / Transitional Exception

The "Jordan" framework should be applied "contextually and flexibly for cases currently in the system".[1]

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.[2]

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".[3]

Burden
The burden is upon the Crown to show that the transitional exception applies.[4]

Standard
The Crown must show that the net time is justifiable on the basis of "reasonable reliance on the law as it previously existed".[5]

  1. R v Jordan, 2016 SCC 27 (CanLII) at para 94
  2. R v Swaminathan, 2016 ONSC 4913 (CanLII) at para 13
  3. R v Porter, 2016 ONSC 7173 (CanLII) at para 7
    R v Cabrera, 2016 ABQB 707 (CanLII) at para 42
  4. Cabrera, ibid. at para 43
  5. Cabrera, ibid. at para 43

Length of Delay

Period of Consideration
The period that can be considered begins at the laying of the charge and extends until the end of trial.[1] Delay can also apply to the point of sentencing.[2] However, the interests implicated in a delay to sentencing are not exactly the same as those implicated to trial.[3]

One cannot usually take into account events occurring before the charges were laid.[4]

Multiple Accused
Where there are multiple co-accused or multiple charges the inherent time requirements will increase.[5]

  1. R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594
    R v Nguyen, 2013 ONCA 169 (CanLII) at para 49
  2. R v MacDougall, 1998 CanLII 763 (SCC), (1998), 128 CCC (3d) 483 (S.C.C.)
    R v Gallant, 1998 CanLII 764 (SCC), [1998] 3 SCR 80
  3. R v DN, 1993 CarswellYukon 6, (1993) 27 C.R. (4th) 114 (YKTC)(*no link)
    Gallant, supra
  4. R v AK and AV (2005), 195 CCC (3d) 501 (Ont. C.A.), 2005 CanLII 11389 at 162
  5. Rusic, supra at p. 703
    R v Faulds, 1996 CanLII 2579 (ON CA), (1996), 111 CCC (3d) 39 (ONCA)

Waiver of Delay

Any period of time that has been waived by the defence must be subtracted from the total time delayed.[1]

Burden
The burden is on the crown to prove there has been a waiver of any delay rights.

Requirements
A waiver must be clear, unequivocal and with full knowledge of the right being waived.[2]

An agreement as to a date does not amount to a waiver where the agreement is a "mere acquiescence to the inevitable".[3] 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".[4]

  1. R v Sharma, [1992] 1 SCR 814, 1992 CanLII 90 (SCC) at p. 191 (CCC)
    R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC) at p. 15 per Sopinka J
  2. 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), [1996] 3 SCR 525
  3. R v Askov, [1990] 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, [1993] 4 SCR 287, 1993 CanLII 42 (SCC), at p. 288 (SCR)
  4. Brassard, ibid. at p. 287 (SCR)

Procedure

The applicant must establish an evidentiary foundation for their application.[1]

The judge should generally not raise a Charter delay issue on behalf of the accused.[2]

Evidence
Often counsel can draft an agreed statement of fact on the history of proceedings.[3]

The applicant should also file a transcript of the previous proceedings.[4]

Notice
The applicant must give sufficient notice to the Crown to allow them to respond with evidence.[5]

  1. 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."
  2. R v Foisy, 2000 CanLII 16959 (ON CA)
  3. GCM ("In many cases, the history of the proceedings will best be dealt with by an agreed statement of fact.")
  4. R v Silveira, [1998] O.J. No. 1622 (S.C.J.)(*no link)
  5. 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.")

Specific Offences

A particularly complex case that requires lengthy documentary evidence may tolerate longer delays that normal cases.[1] The Crown must present "cogent evidence that proves the complexity of the case".[2]

  1. R v Atkinson (1991), 68 CCC (3d) 109 at p.127 (ONCA)
  2. R v Giorgio, 2004 CanLII 30094 (ON SC)

Child Pornography Offences

The Police are permitted to triage their analysis of computers by conducting preliminary analysis and then holding off on full analysis until after it was clear there would be a contest of the charges. [1]

An intake period of 9 months for child pornography charges can be reasonable given that much of the investigation occurs after charges and the frequent need for breaks while categorizing the materials.[2]

  1. R v Charbonneau, 2015 BCPC 4 (CanLII) at para 128 to 130
  2. R v Stilwell, 2014 ONCA 563 (CanLII), at para 9

Remedy on Breach of s. 11(b)

Where a delay is unreasonable under s. 11(b) of the Charter, the only available remedy is a stay of proceedings.[1]

Where the breach is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.[2] Courts are reluctant to give sentence credit for this reason, however.[3]

Postponement of a sentencing hearing can in some circumstances result in mitigation of sentence.[4]

  1. R v Mills, [1986] 1 SCR 863, 1986 CanLII 17 (SCC)
  2. R v McAulay, 1987 ABCA 44 (CanLII)
    R v Bosley, 1992 CanLII 2838 (ON CA), (1992), 18 CR (4th) 347 at p. 358
    R v Leaver, 1996 CanLII 10223 (ON CA), (1996), 3 CR (5th) 138 (ONCA)
    R v Dwyer, [2000] OJ 3598 (ONSC)(*no link)
    R v Spencer, [2003] OJ 10 (ONSC), 2003 CanLII 36890 (ON SC)
  3. R v Glykis, 1995 CanLII 1277 (ON CA), (1995), 41 CR (4th) 310 (ONCA)
  4. R v Patterson, 2000 CanLII 16873 (ON CA), [2000] OJ 73 (ONCJ)
    R v KN, [1999] OJ 4572 (ONSC)(*no link)

Morin Principles (Pre-Jordan, 2016 SCC 27)

Section 11(b) doe not impose an obligation that "one’s trial proceed according to a constitutionally mandated timetable".[1]

Factors of Delay
The factors that should be taken into account in determining if the length of delay to trial in unreasonable:[2]

  1. The Length of the Delay: The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason.
  2. Explanation for the Delay.
    1. Delays Attributable to the Crown: Delays attributable to the action of the Crown or officers of the Crown will weigh in favour of the accused. Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers, and the longer use of institutional facilities will justify delays longer than those acceptable in simple cases.
    2. Systemic or Institutional Delays: Delays occasioned by inadequate resources must weigh against the Crown. Institutional delays should be considered in light of the comparative test referred to earlier. The burden of justifying inadequate resources resulting in systemic delays will always fall upon the Crown. There may be a transitional period to allow for a temporary period of lenient treatment of systemic delay.
    3. Delays Attributable to the Accused.
  3. Waiver: If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown. An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial.
  4. Prejudice to the Accused: There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay.

The court should take into account the societal interests in trying the case on the merits. This generally considers the nature of the allegation.[3]

The court should not take a "mathematical or administrative formula" in consideration. Instead, the court should balance the interests found in s. 11(b) of the Charter.[4]

  1. R v Allen (1996) 110 CCC 3d 331 at p 345 per Doherty JA, aff’d 1997 CanLII 331 (SCC), [1997] 3 SCR 700, (“I can see nothing in the language of s 11(b) which suggests any right to have one’s trial proceed according to a constitutionally mandated timetable”.)
  2. R v Askov 1990 CanLII 45 at para 69 per Cory J
    R v Morin
  3. R v Seegmiller, 2004 CanLII 46219 (ON CA)
  4. R v Nguyen, 2013 ONCA 169 (CanLII) at para 49

Reason for Delay and Attribution

Prejudice

Prejudice is the harm caused to the accused due to the delay in resolving the matter. This does not include prejudice arising from the mere fact that the accused has been charged.[1] The more time that passes, the more likely an inference of prejudice [2]

The prejudice must arise out of the delay not simply caused by the charges being laid.[3]

A factor to consider to determine if there is prejudice include whether there has been an impact on accused’s ability to make full answer and defence.

In proving prejudice beyond what can be inferred by the passage of time, it is upon the accused to prove it.In the context of proving actual prejudice beyond that which can be inferred, the burden will be on the accused it. [4]

Prejudice can be enhanced by greater public attention that exists for offences with great stigmas in smaller communities.[5]

Financial Prejudice
Prejudice can be financial when it arises from multiple court appearances that pass while disclosure is pending.[6]

  1. R v Conway, [1989] 1 SCR 1659, 1989 CanLII 66 (SCC) per L'Heureux-Dube J ("protection is the impairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment or prejudice arising from the fact that he has been charged")
    R v Rahey [1987] 1 SCR 588, 1987 CanLII 52 (SCC)
    R v Kovacs-Tatar, (2004) 2004 CanLII 42923 (ON CA), 192 CCC (3d) 91 (Ont.C.A.) at paras 32-34
  2. Morin, 1992 CanLII 89 at para 63
  3. Kovacs-Tatar, supra
  4. R v Sharma, 1992 CanLII 90 (SCC), [1992] 1 SCR 814
  5. e.g. R v Charbonneau, 2015 BCPC 4 (CanLII) at paras 156 to 157
  6. R v Stilwell 2014 ONCA 563 (CanLII), at para 22

Defence Conduct As Evidence of Prejudice

Action or inaction on the part of the defence counsel that is inconsistent with a desire for timely trial must be considered in determining if prejudice is found.[1] The conduct of counsel may lead to the conclusion that certain delay was either neutral or defense delay[2]

Conduct short of waiver can negate prejudice.[3]

The fact that the accused did not "agitate" to move the case forward can be used as indications that the accused person is not "overly prejudiced".[4]

Alleged prejudice due to restrictive conditions of release may be negated by the failure of the accused to make application to vary the conditions.[5]

  1. R v Stillwell, 2014 ONCA 563 (CanLII) at para 53
  2. R v Dias 2014 ABCA 402 (CanLII) at para 20
  3. R v Morin, 1992 CanLII 89 at p. 802
  4. R v Dias, at para 21
    R v Stillwell at paras 46 to 60
  5. R v Stilwell at para 60

See Also