Right to a Trial Within a Reasonable Time

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General Principles

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.

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".[1]

Section 11(b) protects three individual rights:[2]

  • 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:[3]

  • 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.
  1. R v Dias, 2014 ABCA 402 (CanLII)
    R v Sapara, 2001 ABCA 59 (CanLII) per Russell JA
  2. R v Qureshi, 2004 CanLII 40657 (ON CA) per Laskin JA at paras 8 to 10
  3. Qureshi at paras 8 to 10

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]

There is some suggestion that for youth charged under the Youth Criminal Justice Act, the presumptive ceiling should be set at 12 months.[5]

The 30 month ceiling is not affected by the Crown decision to circumvent a preliminary inquiry through the use of a direct indictment under s. 577 of the Code.[6]

Rebutting the Presumptive Ceiling
The presumption can be rebutted where the Crown can show exceptional circumstances.[7]

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:[8]

  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".[9]

  1. R v Jordan, 2016 SCC 27 (CanLII) - Judgement was rendered on July 8, 2016
  2. Jordan, ibid. at paras 47 and 48
  3. Jordan, ibid. at para 68
  4. Jordan, ibid. at para 51
  5. R v JM, 2017 ONCJ 4 (CanLII), at para 136 to 138
  6. R v Wilson, 2017 ABQB 68 (CanLII), par. 71 to 78
  7. Jordan, ibid. at para 47, 48, 69 to 81
  8. Jordan, ibid. at para 48, 82, 105
  9. Jordan, ibid. at paras 48, 69

Obligations on the Crown and Defence

The Crown has an obligation to bring an accused to trial[1] and is also obligated to ensure that "the trial proceedings, once engaged, are not unduly delayed."[2]

  1. R v Heaslip (1983), 36 C.R. (3d) 309 (Ont. C.A.)(*no link) 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
  2. see R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45 per McLachlin J (as she was) at para 49.

Youth Prosecutions

There are no special rights to speedy trial different from those granted to adult accused.[1] However, recommended guidelines should be within 5 or 6 months of charge.[2]

The shorter time to trial is necessary so that:[3]

  1. the young person can better appreciate the connection between behaviour and consequences;
  2. the distorted perception of time by a young person compared to adults;
  3. the need to deal with dispositions speedily while youth is still in formative years.
  1. R v GCM, 1991 CanLII 7057 (ON CA), [1991] O.J. No. 885 (C.A.), per Osborne JA at para 45
    R v TR, 2005 CanLII 18709 (ON CA), [2005] O.J. No. 2150 (C.A.), per MacPherson JA
  2. GCM, supra at para 45
    TR, supra
  3. CGM, supra
    TR, supra
    R v DS, 1991 CanLII 7055 (ON CA), [1991] O.J. No. 1220 (C.A.), per Galligan JA, rev'd on other grounds at 1992 CanLII 58 (SCC)

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 Time Limit

There will be a presumptive breach of s. 11(b) of the Charter where the delay between the date of laying of charges and the conclusion of the trial is greater than the presumptive ceiling.[1]

The presumptive ceiling will depend on the level of court in which the matter will be heard. A trial before the provincial court will have a presumptive ceiling of 18 months. A trial before superior court will have a presumptive ceiling of 30 months.[2]

A recommended approach to Jordan analysis involves the following:[3]

  1. Calculate the total time between charge to actual or anticipated conclusion of trial[4]
  2. subtract from the total time, the defence delay, resulting in the "net delay"[5]
  3. compare the net delay to the presumptive ceiling[6]
  4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances [7]. If it cannot rebut the presumption, a stay will follow[8]. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases [9].
  5. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached[10].
  6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable[11].
  7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable[12].
  8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases")[13].
  1. R v Jordan, 2016 SCC 27 (CanLII)
  2. Jordan
  3. R v Coulter, 2016 ONCA 704 (CanLII) at paras 34 to 41
  4. Jordan, supra at para 47
  5. Jordan, supra at para 66
  6. Jordan, supra at para 66
  7. Jordan, para. 47
  8. Jordan, para. 47
  9. Jordan, para. 71
  10. Jordan, para. 75
  11. Jordan, at para. 80
  12. Jordan, para. 48
  13. Jordan, para. 96

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.[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]

Start and End of Time
The period considered begins at the time the accused is charged and ends at the end of the trial.[5] 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.[6] There is exceptional circumstances where delay pre-charge may apply as well.[7]

The right against delay is extinguished upon a guilty plea as it constitutes a waiver of trial rights.[8] The waiver however does not affect the right to speedy sentencing.[9]

Anticipatory delay is generally not considered.[10]

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.[11]

Gap Time
Section 11(b) does not apply to delays arising from an appeal from conviction (ie. appellate delay).[12]

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.[13]

  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. 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
  6. R v Milani, 2014 ONCA 536 (CanLII), at para 25
  7. see below
  8. R v Naderi, 1996 CanLII 8168 (ON SC), (1996), 40 CRR (2d) 312 (Gen Div)
    R v Lachance, Lachance, 2002 CMAC 7 (CanLII)
  9. Lachance, ibid.
  10. 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")
  11. R v Travassos, [2003] OJ 1877 (ONCJ)(*no link)
  12. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880
  13. R v Milani, 2014 ONCA 536 (CanLII)

Defence Delay

Any delay that is the cause of the defence will not be used as time against the calculation of the presumptive ceiling.[1]

Defence delay takes one of two forms. Either it is a defence waiver or it is a delay caused by the conduct of the defence.[2]

  1. R v Jordan, [2016] 1 SCR 631, 2016 SCC 27 (CanLII) at para, 21 (“Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.")
  2. R v Coulter, 2016 ONCA 704 (CanLII), per Gillese JA, at para 42

Defence 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] It does not have to be explicit however.[3]

An agreement as to a date does not amount to a waiver where the agreement is a "mere acquiescence to the inevitable".[4] 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".[5]

  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. Coulter, supra at para 43 ("Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights ")
    Jordan, supra at para 61
  4. 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), per L'Heureux-Dube J, at p. 287, 288 (SCR) R v Nuosci, Nuosci, [1993] 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”)
  5. Brassard, ibid. at p. 287 (SCR)

Defence-Caused Delay

Delay attributable to the defence in a Jordan analysis includes all "unreasonable actions" on the part of the defence.[1]

Unreasonable actions include:

  • last‑minute changes in counsel[2]
  • adjournments flowing from a lack of diligence[3]

Courts may consider "the level of diligence displayed by the accused" as a relevant factor.[4]

Courts are directed to incentivize counsel to move matter forward in order to eliminate the "culture of complacency".[5]

Trial Readiness
Where the Crown and Court are ready to proceed but the defence is not will be a delay attributable to the defence.[6] This does not include necessary "preparation time" for the defence.[7]

Applications
Defence applications to seek out evidence to which the Crown had a McNeil duty to seek out would result in the time required to obtain the records would not be attributable to the defence.[8]

Frivolous Application
Any frivolous application will be delay attributable to the defence.[9]

  1. R v Jordan, 2016 SCC 27 (CanLII), at para 193
  2. Jordan, supra at para 193
  3. Jordan, supra at para 193
  4. Jordan, supra at para 86
  5. Jordan, supra at paras 94 and 104
  6. Jordan, supra at para 64
    Coulter, supra at para 44
  7. Jordan, supra at para 65
  8. e.g. R v King (No. 5), 2017 CanLII 15296 (NL SCTD) at para 53
  9. Coulter, supra at para 44
    Jordan, supra at para 63

Efforts to Bring the Matter to Trial

In transitional cases, courts may consider whether the defence have acted with diligence in bringing the matter to trial.[1]

This would be with a view to:[2]

  • whether counsel raised the issue of delay;
  • whether counsel took active steps to move the matter forwards expeditiously by inquiring on early trial dates;
  • whether counsel met in advance of hearings to streamline the process;
  • the seriousness of the charges
  • the prejudice they delay had on the evidence
  1. R v Summerfield, 2016 MBQB 241 (CanLII)
    R. v. Amyot and Emslie, 2016 MBQB 186(*no link)
  2. Summerfield, supra at para 38

Extraordinary Circumstances

A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances".[1]

"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that;

  1. the delays are "reasonably unforeseen or reasonably unavoidable" and
  2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

Generally, there are two categories of "extraordinary circumstances":

  1. discrete events or
  2. particularly complex cases.

What type of circumstances are to be considered "extraordinary circumstances" is an open list and will depend on the "good sense and experience" of the trial judge.[2]

It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon".[3]

Seriousness Not a Factor
The seriousness or gravity of the offence does not pay in the consideration for delay.[4]

  1. R v Jordan, 2016 SCC 27 (CanLII) at para 69
  2. Jordan, ibid. at para 71
  3. Jordan, ibid. at para 69
  4. Jordan, supra at para 81

Discrete Events

The discrete events category require that the developments be "unforeseeable and unavoidable".[1]

Once the discrete event occurs the Crown then has an obligation to try to resolve the issue without causing any more delay.

The Crown must show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."[2]

Reasonable step do not have to be successful, they only need to be responsive to avoid delay.[3]

An example of reasonable steps include:[4]

  • seeking the assistance of the court;
  • seeking assistance of defence counsel to streamline evidence or issues for trial; or
  • coordinate the pre-trial applications.

An example of valid discrete events would be a recanting complainant.[5]

  1. R v Jordan, 2016 SCC 27 (CanLII) at para 73
  2. Jordan, ibid. at para 70
  3. Jordan, ibid. at para 70
  4. Jordan, ibid. at para 70
  5. Jordan, ibid. at para 73

Pre-Charge Delay

As a general rule, pre-charge time is not part of the analysis of s. 11(b).[1] Rather, it can only become an issue where the delay has an impact on the "principles of fundamental justice" under s. 7 of the Charter.[2] Section 7 violations are generally considered only in exceptional circumstances.[3]

The accused must present "actual evidence" of "psychological trauma" from pre-trial delay.[4]

It has been suggested that pre-charge delay should only be considered where it affects the right to full answer and defence or otherwise impacts trial fairness.[5]

For s. 11(b) analysis the clock is not running during the period of "withdrawing of a charge and the laying of a new information".[6]

Pre-Charge Delay Causes Lost Evidence
Where the accused alleges missing or lost evidence arising from pre-charge delay, the accused must establish that the lost evidence (e.g. memories) caused "actual prejudice" by impeding the ability to adequately cross-examine witnesses or call defence witnesses.[7]

Pre-charge delay in the range of 40 years can breach the right to full answer and defence where it is established that there was a "material loss of opportunity to garner evidence" due to key witnesses being dead.[8]

Complex Cases
Significant delays for swearing of the information can be justified where the matter involves complex investigations.[9]

Large commercial fraud allegations in jurisdictions where such offences are rare are expected to be slow in investigation since there cannot be a "standing army of expert investigators at the ready to attend" to the investigation.[10]

Delay in Appeals
Delays of appeals can only be considered as a s. 7 violation.[11]

  1. R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594
  2. R v Stymiest, 1993 CanLII 6881 (BC CA), (1993), 79 CCC (3d) 408
  3. R v Young, 1984 CanLII 2145 (ON CA), (1984) 13 CCC (3d) 1 (ONCA)
  4. R v G(AD), 2001 NSCA 28 (CanLII)
  5. R v Finn (1996) 106 CCC (3d) 43, 1996 CanLII 6632 (NL CA)
    e.g. R v National Steel Car Ltd., 2003 CanLII 30223 (ON CA)
  6. R v R(GW), 1996 CanLII 427 (ON CA), (1996), 112 CCC (3d) 179 (ONCA)
  7. R v R(GW), ibid.
  8. R v Grandjambe, 1996 CanLII 10578 (AB QB), (1996), 108 CCC (3d) 338
  9. R v Kalanj 1989 CanLII 63 (SCC), [1989] 1 SCR 1594: 8 months delay for complicated conspiracy charges
  10. R v Hunt, 2016 NLCA 61 (CanLII) at para 114, per Hoegg JA, in dissent, but adopted in 2017 SCC 25 (CanLII)
  11. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880

Application to Pre-Jordan Cases / Transitional Exception

The "Jordan" framework came into effect on July 8, 2016. It 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

Remedy on Breach

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

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.[2]

Where the breach is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.[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 Thomson, 2009 ONCA 771 (CanLII), (2009), 248 CCC (3d) 477 (Ont. C.A.)
  3. see Sentencing Factors Relating to the Offender
  4. R v Patterson, 2000 CanLII 16873 (ON CA), [2000] OJ 73 (ONCJ)
    R v KN, [1999] OJ 4572 (ONSC)(*no link)

Procedure

Judge Cannot Raise Delay
The judge should generally not raise a Charter delay issue on behalf of the accused.[1]

Evidence
The applicant must establish an evidentiary foundation for their application.[2]

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]

Timing
The trial process should generally be permitted to "run its carefully laid course" before a court should engage in an application under s. 11(b) of the Charter to stay proceedings.[6]

  1. R v Foisy, 2000 CanLII 16959 (ON CA)
  2. 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."
  3. GCM, ibid. ("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, supra ("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.")
  6. R v Fast, 2016 ONSC 6426 (CanLII) per Leach J at para 21 and 22
    R v Spears, 2017 NSPC 17 (CanLII), per Derrick PCJ at para 21
    R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J

Morin Framework (Pre-Jordan, 2016 SCC 27)

See Also