View source for Morin Framework (Pre-Jordan 2016)

{{LevelZero}}{{HeaderDelay}}

==General Principles==
{{seealso|Right to a Trial Within a Reasonable Time}}

Section 11(b) does not impose an obligation that "one’s trial proceed according to a constitutionally mandated timetable".<ref>
R v Allen (1996) 110 CCC (3d) 331, [http://canlii.ca/t/6hzz 1996 CanLII 4011] (ON CA){{perONCA|Doherty JA}}, at p 345, aff’d [http://canlii.ca/t/1fqxf 1997 CanLII 331] (SCC), [1997] 3 SCR 700{{perSCC|Sopinka J}} (“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”.)
</ref>

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.<ref>
''R v WKL'', [http://canlii.ca/t/1fsl0 1991 CanLII 54] (SCC), [1991] 1 SCR 1091{{perSCC|Stevenson J}}
</ref>

The Court's exercise focuses on balancing societal rights against individual rights.<ref>
{{ibid1|Qureshi}} at para 10<br>
</ref>

Findings of delay are "extremely fact-specific".<ref>
''R v George (D.P.)'', [http://canlii.ca/t/1q4b3 2006 MBCA 150] (CanLII){{perMBCA|Steel JA}}{{at|72}}
</ref>

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”<ref>C. (R.), at para 7. 
Also see ''R v Qureshi'', [http://canlii.ca/t/1j6q5 2004 CanLII 40657], (2004), 190 CCC (3d) 453 (Ont. C.A.){{perONCA|Laskin JA}} at para 12</ref>

The societal interests to continue the prosecution will increase with the seriousness of the offence.<ref>
''R v Morin'', [http://canlii.ca/t/1fsc6 1992 CanLII 89],  [1992] 1 SCR 77{{perSCC|Sopinka J}} at para 14, ("As the seriousness of the offence increase so does the societal demand that the accused be brought to trial.")<br>
Seegmiller<br>
</ref>

There is no duty on the part of the accused to press for a trial.<ref>
Morin</ref> 
However, any conduct that is inconsistent with the desire for a speedy trial will be considered in the analysis of prejudice.<ref>
R v MacDougall (1998) 128 CCC (3d) 483, [1998] 3 SCR 45, [http://canlii.ca/t/1fqpr 1998 CanLII 763] (SCC){{perSCC|McLachlin J}}{{at|58}}<br>
</ref>

'''Burden/Onus'''<br>
The burden is on the applicant to prove a breach of s.11(b) of the Charter on a balance of probabilities.<ref>
{{supra1|Morin}}<br>
''R v Gordon'' (1998), [http://canlii.ca/t/1wcvg 1998 CanLII 14952] (ON SC), 130 CCC (3d) 129 (Ont. Ct. Gen. Div.){{perONSC|Hill J}} at para 20<br>
''R v Durette'', [http://canlii.ca/t/1npnk 1992 CanLII 2779] (ONCA){{perONCA|Finlayson JA}}<br>
</ref> 
The Crown has the burden of proving any waiver of rights.<ref>
R v C.S. [http://canlii.ca/t/27pwv 1999 CanLII 18948] (NL CA), (1999), 172 Nfld. & P.E.I.R. 175 (N.L.C.A.){{perNLCA|Gushue JA}}{{at|9}}<br>
''R v Buckingham'', [http://canlii.ca/t/1tc15 2007 NLTD 181] (CanLII), [2007] N.J. No. 367 (S.C.){{perNLSC|Adams J}}{{at|18}}</ref>
It is preferable that little influence be placed on the burden and rather the matter should turn on the facts of the case.<ref>
''R v Smith'', [http://canlii.ca/t/1ft1f 1989 CanLII 12] (SCC), [1989] 2 SCR 1120{{perSCC|Sopinka J}} at para 28<br>
{{supra1|Morin}}{{at|33}}<br> 
''R v Tilden'', [http://canlii.ca/t/275cq 2009 SKQB 495] (CanLII), [2009] S.J. No. 741 (Sask. Q.B.){{perSKQB|Dufour J}} at para 19<br>
</ref>

'''Standard of Proof'''<br>
A breach of s. 7 of the Charter for delay requires proof of a "significant breach of the principle of fundamental justice".<ref>
''R v Dias'', [http://canlii.ca/t/gffjg 2014 ABCA 402] (CanLII){{TheCourtABCA}}<br>
</ref>

'''No Obligation on Defence'''<br>
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.<ref>
''R v Gordon'' (1998), [http://canlii.ca/t/1wcvg 1998 CanLII 14952] (ON SC), 130 CCC (3d) 129 (Ont. Ct. Gen. Div.){{perONSC|Hill J}}<br>
R v D.G.(J.), [http://canlii.ca/t/1d2v5 1999 CanLII 6234] (BC SC){{perBCSC|Romilly J}} at para 15</ref>

The applicant must first establish that the period raises the issue of “reasonableness”.<ref>See R v Morin and {{supra1|Reid}}</ref>
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.

'''Adult vs Youth Prosecutions'''<br>
The Morin guidelines remain the same whether the prosecution is for a youth as opposed to an adult.<ref>
R v D(RC), [http://canlii.ca/t/1n51q 2006 BCCA 211] (CanLII){{perBCCA|Hall JA}}<br>
''R v RDR'', [http://canlii.ca/t/fn7gv 2011 NSCA 86] (CanLII){{perNSCA|Beveridge JA}}, leave refused [2011] SCCA No. 515<br>
</ref>

; History
In 1986, the initial approach to s. 11(d) rights was that a breach would result in a variety of remedies, including damages in addition to a stay.<ref>
''R v Mills'', [1986] 1 SCR 863, [http://canlii.ca/t/1cxmx 1986 CanLII 17] (SCC){{perSCC|McIntyre J}} ("remedy will vary with the circumstances")<br>
</ref> Shortly after the framework was developed with main factors: wavier, inherent time requirements, and limitations of resources.<ref>
''R v Rahey'', [http://canlii.ca/t/1ftp7 1987 CanLII 52] (SCC), [1987] 1 SCR 588{{Plurality}}<br>
''R v Conway'', [http://canlii.ca/t/1ft4d 1989 CanLII 66] (SCC), [1989] 1 SCR 1659{{perSCC|L'Heureux‑Dubé J}}<br>
</ref>

In 1990, delay guidelines were set for between 6 to 8 months between committal and trial to be on the "outside limit of what is reasonable".<ref>
''R v Askov'', [1990] 2 SCR 1199, [http://canlii.ca/t/1fsrp 1990 CanLII 45] (SCC){{perSCC|Cory J}}<br>
Morin{{infra}} (In Askov the Court "went on to suggest that "a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable" (p. 1240).  It is the interpretation and application of this statement that resulted in the large number of stays and withdrawals to which I have referred.")
</ref>

In 1992, the framework was again modified to put the onus on the accused to prove the prejudice caused by the delay.<ref>
''R v Morin'', [1992] 1 SCR 771, [http://canlii.ca/t/1fsc6 1992 CanLII 89] (SCC){{perSCC|Lamer CJ}} (dissent) summarizing the position of the majority stating ("Both of my colleagues in their reasons, McLachlin J. somewhat more so than Sopinka J., place the onus on the accused to prove prejudice.  This is a fundamental change to the position that this Court has taken.")<br>
</ref>

In 2016, the framework to delay was changed to remove focus on prejudice and instead concern itself with overall repute of the administration of justice.<ref>
''R v Jordan'', [http://canlii.ca/t/gsds3 2016 SCC 27] (CanLII){{perSCC|Moldaver, Karakatsanis and Brown JJ}}
</ref>

{{Reflist|2}}

==Factors of Delay==
The factors that should be taken into account in determining if the length of delay to trial in unreasonable:<ref>
''R v Askov'', [http://canlii.ca/t/1fsrp 1990 CanLII 45] (SCC){{perSCC|Cory J}} at para 69<br>
''R v Morin'', [http://canlii.ca/t/1fsc6 1992 CanLII 89], [1992] 1 SCR 77{{perSCC|Sopinka J}}</ref>
#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.
# Explanation for the Delay.
## 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.
## 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.
## Delays Attributable to the Accused.
# 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.
# 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.<ref>
''R v Seegmiller'', [http://canlii.ca/t/1jdvw 2004 CanLII 46219] (ON CA){{perONCA|Cronk JA}}</ref>

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.<ref>
''R v Nguyen'', [http://canlii.ca/t/fwl92 2013 ONCA 169] (CanLII){{perONCA|Watt JA}} at para 49<br>
</ref>

{{Reflist|2}}

===Reason for Delay and Attribution===
* [[Reasons for Delay (Morin Framework Only)]] Under Morin Framework

===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.<ref>
''R v Conway'', [1989] 1 SCR 1659, [http://canlii.ca/t/1ft4d 1989 CanLII 66] (SCC){{perSCC|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")<br>
R v Rahey [1987] 1 SCR 588, [http://canlii.ca/t/1ftp7 1987 CanLII 52] (SCC){{Plurality}}<br>
''R v Kovacs-Tatar'', (2004) [http://canlii.ca/t/1j99g 2004 CanLII 42923] (ON CA), 192 CCC (3d) 91 (Ont.C.A.){{TheCourtONCA}} at paras 32-34<br>
</ref>
The more time that passes, the more likely an inference of prejudice <ref>''R v Morin'', [http://canlii.ca/t/1fsc6 1992 CanLII 89] (SCC){{perSCC|Sopinka J}} at para 63</ref>  

The prejudice must arise out of the delay not simply caused by the charges being laid.<ref>Kovacs-{{supra1|Tatar}}</ref>

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.

'''Proof of Prejudice'''<br>
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. <ref>''R v Sharma'', [http://canlii.ca/t/1fsc8 1992 CanLII 90] (SCC), [1992] 1 SCR 814{{perSCC|Sopinka J}}</ref>

Prejudice can be enhanced by greater public attention that exists for offences with great stigmas in smaller communities.<ref>
e.g. ''R v Charbonneau'', [http://canlii.ca/t/gg34g 2015 BCPC 4] (CanLII){{perBCSC|Brecknell J}} at paras 156 to 157
</ref>

; Financial Prejudice
Prejudice can be financial when it arises from multiple court appearances that pass while disclosure is pending.<ref>
''R v Stilwell'', [http://canlii.ca/t/g84zj 2014 ONCA 563] (CanLII){{perONCA|Pepall JA}}{{at|22}}
</ref>

; Evidential Prejudice
The passage of time has a recognized prejudice upon the quality of evidence in a case whereby witnesses memories fade, their health fades and they move away. All contributing to their evidence being lost forever.<ref>
{{supra1|Askov}} at p. 298<br>
</ref> 

{{reflist|2}}
====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.<ref>''R v Stillwell'', [http://canlii.ca/t/g84zj 2014 ONCA 563] (CanLII){{perONCA|Pepall JA}} at para 53<br>
</ref> 
The conduct of counsel may lead to the conclusion that certain delay was either neutral or defense delay<ref> 
''R v Dias'', [http://canlii.ca/t/gffjg 2014 ABCA 402] (CanLII){{TheCourtABCA}} at para 20<br>
</ref>

Conduct short of waiver can negate prejudice.<ref>
''R v Morin'', [http://canlii.ca/t/1fsc6 1992 CanLII 89] [1992] 1 SCR 771{{perSCC|Sopinka J}} at p. 802 
</ref>

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".<ref>
{{supra1|Dias}}{{at|21}}<br> 
{{supra1|Stillwell}} at paras 46 to 60<br>
</ref>

Alleged prejudice due to restrictive conditions of release may be negated by the failure of the accused to make application to vary the conditions.<ref>
{{supra1|Stillwell}} at para 60<br>
</ref>

'''Co-Accused Caused Delay'''<br>
Delay caused by a co-accused should be treated as neutral time.<ref>
''R v Whylie'', [http://canlii.ca/t/1mwnw 2006 CanLII 9037] (ON CA){{perONCA|Laskin JA}}{{at|24}}<br>
''R v LG'', [http://canlii.ca/t/1t0t5  2007 ONCA 654] (CanLII){{perONCA|Simmons JA}} at para 62 to 63<br>
''R v Zvolensky'', [http://canlii.ca/t/h311t 2017 ONCA 273] (CanLII){{perONCA|Watt JA}}, at paras 245 and 255<br>
</ref>

{{Reflist|2}}