Morin Framework (Pre-Jordan 2016)

This page was last substantively updated or reviewed January 2019. (Rev. # 95209)

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General Principles

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

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.

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

Findings of delay are "extremely fact-specific."

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”

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

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

Burden/Onus

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

Standard of Proof

A breach of s. 7 of the Charter for delay requires proof of a "significant breach of the principle of fundamental justice."

No Obligation on Defence

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.

The applicant must first establish that the period raises the issue of “reasonableness”. 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

The Morin guidelines remain the same whether the prosecution is for a youth as opposed to an adult.

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. Shortly after the framework was developed with main factors: wavier, inherent time requirements, and limitations of resources.

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."

In 1992, the framework was again modified to put the onus on the accused to prove the prejudice caused by the delay.

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.

Factors of Delay

The factors that should be taken into account in determining if the length of delay to trial in unreasonable:

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.

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.

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. The more time that passes, the more likely an inference of prejudice

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

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

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.

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

Financial Prejudice

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

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.

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. The conduct of counsel may lead to the conclusion that certain delay was either neutral or defence delay

Conduct short of waiver can negate prejudice.

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."

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

Co-Accused Caused Delay

Delay caused by a co-accused should be treated as neutral time.

Pre-Charge Delay

As a general rule, pre-charge time is not part of the analysis of s. 11(b). 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, including trial fairnes. Section 7 violations are generally considered only in exceptional circumstances.

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.

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."

Pre-Charge Delay Causes Personal Harm

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

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.

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.

Complex Cases

Significant delays for swearing of the information can be justified where the matter involves complex investigations.

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

Delay in Appeals

Delays of appeals can only be considered as a s. 7 violation only on the basis of trial fairness on the abuse of process doctrine.

Delay at the appeal phase of proceedings must be brought before the court of appeal.

Delay arising from an appeal by the accused or an appeal of the Crown is not part of the calculation for delay under s. 11(d).