Criminal Law Notebook

Morin Framework (Pre-Jordan 2016)

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General Principles

See also: 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".[1]

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.[2]

The Court's exercise focuses on balancing societal rights against individual rights.[3]

Findings of delay are "extremely fact-specific".[4]

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”[5]

The societal interests to continue the prosecution will increase with the seriousness of the offence.[6]

There is no duty on the part of the accused to press for a trial.[7] However, any conduct that is inconsistent with the desire for a speedy trial will be considered in the analysis of prejudice.[8]

Burden/Onus

The burden is on the applicant to prove a breach of s.11(b) of the Charter on a balance of probabilities.[9] The Crown has the burden of proving any waiver of rights.[10] It is preferable that little influence be placed on the burden and rather the matter should turn on the facts of the case.[11]

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".[12]

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.[13]

The applicant must first establish that the period raises the issue of “reasonableness”.[14] 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.[15]

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.[16] Shortly after the framework was developed with main factors: wavier, inherent time requirements, and limitations of resources.[17]

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".[18]

In 1992, the framework was again modified to put the onus on the accused to prove the prejudice caused by the delay.[19]

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.[20]

  1. ↑ R v Allen (1996) 110 CCC (3d) 331, 1996 CanLII 4011 (ON CA), per Doherty JA, at p. 345, aff’d 1997 CanLII 331 (SCC), [1997] 3 SCR 700, per 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”.)
  2. ↑ R v WKL, 1991 CanLII 54 (SCC), [1991] 1 SCR 1091, per Stevenson J
  3. ↑ R v Qureshi, 2004 CanLII 40657, (2004), 190 CCC (3d) 453 (Ont. C.A.), per Laskin JA, at para 10
  4. ↑ R v George (D.P.), 2006 MBCA 150 (CanLII), per Steel JA, at para 72
  5. ↑ R v Morin, 1992 CanLII 89 (SCC), per Sopinka J, at para 32
    Also see Qureshi, supra, at para 12
  6. ↑ R v Morin, 1992 CanLII 89, [1992] 1 SCR 77, per Sopinka J, at para 14, ("As the seriousness of the offence increase so does the societal demand that the accused be brought to trial.")
    R v Seegmiller, 2004 CanLII 46219 (ON CA), per Cronk JA
  7. ↑ Morin
  8. ↑ R v MacDougall (1998) 128 CCC (3d) 483, [1998] 3 SCR 45, 1998 CanLII 763 (SCC), per McLachlin J, at para 58
  9. ↑ Morin, supra
    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
  10. ↑ R v CS, 1999 CanLII 18948 (NL CA), (1999), 172 Nfld. & P.E.I.R. 175 (N.L.C.A.), per Gushue JA, at para 9
    R v Buckingham, 2007 NLTD 181 (CanLII), [2007] N.J. No. 367 (S.C.), per Adams J, at para 18
  11. ↑ 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.), per Dufour J, at para 19
  12. ↑ R v Dias, 2014 ABCA 402 (CanLII), per curiam
  13. ↑ R v Gordon (1998), 1998 CanLII 14952 (ON SC), 130 CCC (3d) 129 (Ont. Ct. Gen. Div.), per Hill J
    R v DG(J), 1999 CanLII 6234 (BC SC), per Romilly J, at para 15
  14. ↑ See Morin and Reid, supra
  15. ↑ R v D(RC), 2006 BCCA 211 (CanLII), per Hall JA
    R v RDR, 2011 NSCA 86 (CanLII), per Beveridge JA, leave refused [2011] SCCA No. 515
  16. ↑ R v Mills, [1986] 1 SCR 863, 1986 CanLII 17 (SCC), per McIntyre J ("remedy will vary with the circumstances")
  17. ↑ R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588
    R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, per L'Heureux‑Dubé J
  18. ↑ R v Askov, [1990] 2 SCR 1199, 1990 CanLII 45 (SCC), per Cory J
    Morininfra (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.")
  19. ↑ R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), per 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.")
  20. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ

Factors of Delay

The factors that should be taken into account in determining if the length of delay to trial in unreasonable:[1]

  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.[2]

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.[3]

  1. ↑ R v Askov, 1990 CanLII 45 (SCC), per Cory J, at para 69
    R v Morin, 1992 CanLII 89, [1992] 1 SCR 77, per Sopinka J
  2. ↑ Seegmiller, supra
  3. ↑ R v Nguyen, 2013 ONCA 169 (CanLII), per Watt JA, 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.

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. [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]

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.[7]

  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.), per curiam, at paras 32 to 34
  2. ↑ R v Morin, 1992 CanLII 89 (SCC), per Sopinka J, at para 63
  3. ↑ Kovacs-Tatar, supra
  4. ↑ R v Sharma, 1992 CanLII 90 (SCC), [1992] 1 SCR 814, per Sopinka J
  5. ↑ e.g. R v Charbonneau, 2015 BCPC 4 (CanLII), per Brecknell J, at paras 156 to 157
  6. ↑ R v Stilwell, 2014 ONCA 563 (CanLII), per Pepall JA, at para 22
  7. ↑ Askov, supra, at p. 298

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]

Co-Accused Caused Delay

Delay caused by a co-accused should be treated as neutral time.[6]

  1. ↑ R v Stillwell, 2014 ONCA 563 (CanLII), per Pepall JA, at para 53
  2. ↑ R v Dias, 2014 ABCA 402 (CanLII), per curiam, at #par20 para 20
  3. ↑ R v Morin, 1992 CanLII 89 [1992] 1 SCR 771, per Sopinka J, at p. 802
  4. ↑ Dias, supra, at para 21
    Stillwell, supra, at paras 46 to 60
  5. ↑ Stillwell, supra, at para 60
  6. ↑ R v Whylie, 2006 CanLII 9037 (ON CA), per Laskin JA, at para 24
    R v LG, 2007 ONCA 654 (CanLII), per Simmons JA, at paras 62 to 63
    R v Zvolensky, 2017 ONCA 273 (CanLII), per Watt JA, at paras 245 and 255

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, including trial fairnes.[2] Section 7 violations are generally considered only in exceptional circumstances.[3]

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.[4]

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".[5]

Pre-Charge Delay Causes Personal Harm

The accused must present "actual evidence" of "psychological trauma" from pre-trial delay.[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 the 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 only on the basis of trial fairness on the abuse of process doctrine.[11]

Delay at the appeal phase of proceedings must be brought before the court of appeal.[12]

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).[13]

  1. ↑ R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594, per McIntyre J
    R v WKL, [1991] 1 SCR 1091, 1991 CanLII 54 (SCC)
  2. ↑ R v Stymiest, 1993 CanLII 6881 (BC CA), (1993), 79 CCC (3d) 408, per Legg JA
    WKL, supra
  3. ↑ R v Young, 1984 CanLII 2145 (ON CA), (1984) 13 CCC (3d) 1 (ONCA), per Dubin JA
  4. ↑ R v Finn (1996) 106 CCC (3d) 43, 1996 CanLII 6632 (NL CA), per Marshall JA
    e.g. R v National Steel Car Ltd., 2003 CanLII 30223 (ON CA), per Weiler JA
  5. ↑ R v R(GW), 1996 CanLII 427 (ON CA), (1996), 112 CCC (3d) 179 (ONCA), per Osborne J
  6. ↑ R v G(AD), 2001 NSCA 28 (CanLII), per Saunders JA
  7. ↑ R(GW), ibid.
  8. ↑ R v Grandjambe, 1996 CanLII 10578 (AB QB), (1996), 108 CCC (3d) 338, per McMahon J
  9. ↑ R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594, per McIntyre J: 8 months delay for complicated conspiracy charges
  10. ↑ R v Hunt, 2016 NLCA 61 (CanLII), per Hoegg JA (in dissent) (2:1), at para 114, adopted in 2017 SCC 25 (CanLII), per Abella J
  11. ↑ R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880, per Sopinka J
  12. ↑ Potvin, ibid.
  13. ↑ Potvin, ibid.
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