SUPREME
COURT OF CANADA
Between:
Barrett
Richard Jordan
Appellant
and
Her
Majesty The Queen
Respondent
- and -
Attorney
General of Alberta,
British
Columbia Civil Liberties Association and
Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon, Côté and Brown JJ.
Joint Reasons for Judgment:
(paras. 1 to
141)
Reasons Concurring in the Result:
(paras. 142 to
303)
|
Moldaver,
Karakatsanis and Brown JJ. (Abella and
Côté JJ. concurring)
Cromwell J.
(McLachlin C.J. and Wagner and Gascon JJ. concurring)
|
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631
Barrett Richard Jordan Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Alberta,
British Columbia Civil Liberties
Association and
Criminal Lawyers’ Association
(Ontario) Interveners
Indexed as: R. v. Jordan
2016 SCC 27
File No.: 36068.
2015: October 7; 2016: July 8.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Constitutional
law — Charter of Rights — Right to be tried within reasonable time — Delay of
more than four years between charges and end of trial — Whether accused’s right
to be tried within reasonable time under s. 11 (b) of Canadian Charter of
Rights and Freedoms infringed — New framework for applying s. 11 (b).
J
was charged in December 2008 for his role in a dial‑a‑dope
operation. His trial ended in February 2013. J brought an application under
s. 11 (b) of the Canadian Charter of Rights and Freedoms ,
seeking a stay of proceedings due to the delay. In dismissing the application,
the trial judge applied the framework set out in R. v. Morin, [1992] 1
S.C.R. 771. Ultimately, J was convicted. The Court of Appeal dismissed the
appeal.
Held:
The appeal should be allowed, the convictions set aside and a stay of
proceedings entered.
Per
Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: The delay was
unreasonable and J’s s. 11 (b) Charter right was infringed.
The Morin framework for applying s. 11 (b) has given rise to
both doctrinal and practical problems, contributing to a culture of delay and
complacency towards it. Doctrinally, the Morin framework is too
unpredictable, too confusing, and too complex. It has itself become a burden on
already over‑burdened trial courts. From a practical perspective, the Morin
framework’s after‑the‑fact rationalization of delay does not
encourage participants in the justice system to take preventative measures to
address inefficient practices and resourcing problems.
A
new framework is therefore required for applying s. 11 (b). This
framework is intended to focus the s. 11 (b) analysis on the issues
that matter and encourage all participants in the criminal justice system to
cooperate in achieving reasonably prompt justice, with a view to fulfilling
s. 11 (b)’s important objectives.
At
the heart of this new framework is a presumptive ceiling beyond which delay —
from the charge to the actual or anticipated end of trial — is presumed to be
unreasonable, unless exceptional circumstances justify it. The presumptive
ceiling is 18 months for cases tried in the provincial court, and
30 months for cases in the superior court (or cases tried in the
provincial court after a preliminary inquiry). Delay attributable to or waived
by the defence does not count towards the presumptive ceiling.
Once
the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on
the basis of exceptional circumstances. If the Crown cannot do so, a stay will
follow. Exceptional circumstances lie outside the Crown’s control in that
(1) they are reasonably unforeseen or reasonably unavoidable, and
(2) they cannot reasonably be remedied.
It
is obviously impossible to identify in advance all circumstances that may
qualify as exceptional for the purposes of adjudicating a s. 11 (b)
application. Ultimately, the determination of whether circumstances are
exceptional will depend on the trial judge’s good sense and experience. The
list is not closed. However, in general, exceptional
circumstances fall under two categories: discrete events and particularly
complex cases.
If
the exceptional circumstance relates to a discrete event (such
as an illness or unexpected event at trial), the delay reasonably attributable to that event is
subtracted from the total delay. If the exceptional circumstance arises from
the case’s complexity, the delay is reasonable and no further analysis is
required.
An
exceptional circumstance is the only basis upon which the Crown can discharge
its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence
cannot be relied on, nor can chronic institutional delay. Most significantly,
the absence of prejudice can in no circumstances be used to justify delays
after the presumptive ceiling is breached. Once so much time has elapsed, only
circumstances that are genuinely outside the Crown’s control and ability to
remedy may furnish a sufficient excuse for the prolonged delay.
Below
the presumptive ceiling, however, the burden is on the
defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it
took meaningful steps that demonstrate a sustained effort to expedite the
proceedings, and (2) the case took markedly longer than it reasonably
should have. Absent these two factors, the s. 11 (b) application
must fail. Stays beneath the presumptive ceiling should only be granted in
clear cases.
As
to the first factor, while the defence might not be able to resolve the Crown’s
or the trial court’s challenges, it falls to the defence to show that it
attempted to set the earliest possible hearing dates, was cooperative with and
responsive to the Crown and the court, put the Crown on timely notice when
delay was becoming a problem, and conducted all applications (including the
s. 11 (b) application) reasonably and expeditiously. At the same
time, trial judges should not take this opportunity, with the benefit of
hindsight, to question every decision made by the defence. The defence is
required to act reasonably, not perfectly.
Turning
to the second factor, the defence must show that the time the case has taken
markedly exceeds the reasonable time requirements of the case. These
requirements derive from a variety of factors, including the complexity of the
case and local considerations. Determining the time the case reasonably should
have taken is not a matter of precise calculation, as has been the practice
under the Morin framework.
For
cases currently in the system, a contextual application of the new framework
is required to avoid repeating the post‑Askov situation, where
tens of thousands of charges were stayed as a result of the abrupt change in
the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay
exceeds the ceiling, a transitional exceptional circumstance may arise where
the charges were brought prior to the release of this decision. This
transitional exceptional circumstance will apply when the Crown satisfies the
court that the time the case has taken is justified based on the parties’
reasonable reliance on the law as it previously existed. This requires a
contextual assessment, sensitive to the manner in which the previous framework
was applied, and the fact that the parties’ behaviour cannot be judged
strictly, against a standard of which they had no notice.
The
second qualification applies to cases currently in the system in which the
total delay (minus defence delay) falls below the ceiling. For these cases, the
two criteria — defence initiative and whether the time the case has taken
markedly exceeds what was reasonably required — must also be applied
contextually, sensitive to the parties’ reliance on the previous state of the
law. Specifically, the defence need not demonstrate having taken initiative to
expedite matters for the period of delay preceding this decision. Since defence
initiative was not expressly required by the Morin framework, it would
be unfair to require it for the period of time before the release of this
decision. Further, if the delay was occasioned by an institutional delay that
was, before this decision was released, reasonably acceptable in the relevant
jurisdiction under the Morin framework, that institutional delay will be
a component of the reasonable time requirements of the case for cases currently
in the system.
In
this case, the total delay between the charges and the end of trial was
49.5 months. As the trial judge found, four months of this delay were
waived by J when he changed counsel shortly before the trial was set to begin,
necessitating an adjournment. In addition, one and a half months of the delay
were caused solely by J for the adjournment of the preliminary inquiry because
his counsel was unavailable for closing submissions on the last day. This
leaves a remaining delay of 44 months, an amount that vastly exceeds the
presumptive ceiling of 30 months in the superior court. The Crown has failed to
discharge its burden of demonstrating that the delay of 44 months
(excluding defence delay) was reasonable. While the case against J may have
been moderately complex given the amount of evidence and the number of co‑accused,
it was not so exceptionally complex that it would justify such a delay.
Nor
does the transitional exceptional circumstance justify the delay in this case.
Since J’s charges were brought prior to the release of this decision, the Crown
was operating without notice of the new framework within a jurisdiction with
some systemic delay issues. But a total delay of 44 months (excluding defence
delay), of which the vast majority was either Crown or institutional delay, in
an ordinary dial‑a‑dope trafficking prosecution is simply
unreasonable regardless of the framework under which the Crown was operating.
Therefore, it cannot be said that the Crown’s reliance on the previous state of
the law was reasonable. While the Crown did make some efforts to bring the matter to trial
more quickly, these efforts were too little and too late. And the systemic
delay problems that existed at the time cannot justify the delay either. Much
of the institutional delay could have been avoided had the Crown proceeded on
the basis of a more reasonable plan by more accurately estimating the amount of
time needed to present its case. To the extent that the trial judge held that
this delay was reasonable, he erred.
All
the parties were operating within the culture of complacency towards delay that
has pervaded the criminal justice system in recent years. Broader structural and procedural changes, in addition to day‑to‑day
efforts, are required to maintain the public’s confidence by delivering justice
in a timely manner. Ultimately, all participants in the justice system must
work in concert to achieve speedier trials. After all, everyone stands to
benefit from these efforts. Timely trials are possible.
More than that, they are constitutionally required.
Per
McLachlin C.J. and Cromwell, Wagner and Gascon JJ.: This
Court’s jurisprudence for dealing with alleged breaches of s. 11 (b)
of the Canadian Charter of Rights and Freedoms over the last
30 years supplies a clear answer to this appeal. Striking out in the
completely new direction adopted by the majority is unnecessary. A reasonable
time for trial under s. 11 (b) cannot and should not be defined by
numerical ceilings, as the majority concludes.
The
right to be tried in a reasonable time is multi‑factored, fact‑sensitive,
and case‑specific; its application to specific cases is unavoidably
complex. The relevant factors and general approach set out in R. v. Morin,
[1992] 1 S.C.R. 771, respond to these complexities. With modest adjustments to
make the analysis more straightforward and with some additional clarification,
a revised Morin framework will continue to ensure that the
constitutional right of accused persons to be tried in a reasonable time is
defined and applied in a way that appropriately balances the many relevant
considerations. In order to do so, the Morin considerations should be
regrouped under four main analytical steps.
First,
the accused must establish that there is a basis for the s. 11 (b)
inquiry. The court should look to the overall period between the charge and the
completion of the trial to determine whether its length merits further inquiry.
Second,
the court must determine on an objective basis what would be a reasonable time
for the disposition of a case like the one under review — that is, how long a
case of this nature should reasonably take. The objective standard of
reasonableness has two components: institutional delay and inherent time
requirements of the case. Both of these periods of time are to be determined objectively.
The acceptable period of institutional delay is the period that is reasonably
required for the court to be ready to hear the case once the parties are ready
to proceed, and is determined in accordance with the administrative guidelines
for institutional delay set out by this Court in Morin: eight to ten
months before the provincial courts and six to eight months before the
superior courts. These guidelines set some rough limits on the point at which
inadequacy of state resources will be accepted as an excuse. The guidelines
should not be understood as precluding allowance for any sudden and temporary
strain on resources that causes a temporary congestion in the courts. The
inherent time requirements of a case, on the other hand, represent the period
of time that is reasonably required for the parties to be ready to proceed and
to conclude the trial for a case similar in nature to the one before the court,
and are to be determined on the basis of judicial experience, supplemented by
submissions of counsel and evidence. In estimating a reasonable time period,
the court should also take into account the liberty interests of the accused.
Third,
the court must consider how much of the actual delay in the case counts against
the state. This is done by subtracting the periods attributable to the defence,
including any waived time periods, from the overall period of delay. When the
accused consents to a date for trial offered by the court or to an adjournment
sought by the Crown, that consent, without more, does not amount to waiver. The
onus is on the Crown to demonstrate that this period is waived, that is, that
the accused’s conduct reveals something more than mere acquiescence in the
inevitable, and that it meets the high bar of being clear, unequivocal, and
informed acceptance. Delay resulting from unreasonable actions solely
attributable to the accused must also be subtracted from the period for which
the state is responsible, such as last‑minute changes in counsel or
adjournments flowing from a lack of diligence. It is also necessary to subtract
from the actual delay any periods that, although not fairly attributable to the
defence, are nonetheless not fairly counted against the state, including
unavoidable delays due to inclement weather or illness of a trial participant.
Fourth,
the court must determine whether the actual period of time that fairly counts
against the state exceeds the reasonable time by more than can be justified on
any acceptable basis. Where the actual time exceeds what would have been
reasonable for a case of that nature, the result will be a finding of
unreasonable delay unless the Crown can show that the delay was justified. Even
substantial excess delay may be justified and therefore reasonable where, for
example, there is a particularly strong societal interest in the prosecution
proceeding on its merits, or where the delay results from temporary and
extraordinary pressures on counsel or the court system. However, it does not
follow that in these conditions the excess period is invariably justified. The
accused still may be able to demonstrate actual prejudice. Although actual
prejudice need not be proved to find an infringement of s. 11 (b),
its presence would make unreasonable (in the particular circumstances of the
case) a delay that might otherwise be objectively viewed as reasonable. As a
result, justification may be found to be lacking.
Under
this revised Morin framework, any delay in excess of the reasonable time
requirements and any actual prejudice arising from the overall delay must be
evaluated in light of societal interests: on one hand, fair treatment and
prompt trial of accused persons and, on the other, determination of cases on
their merits. If there are exceptionally strong societal interests in the
prosecution of a case against an accused which substantially outweigh the
societal interest and the interest of the accused person in prompt trials,
these can serve as an acceptable basis upon which exceeding the inherent and
institutional requirements of a case can be justified.
This
approach is a slight reorientation of the Morin framework because the
focus is more explicitly on the period of delay which exceeds what would have
been reasonable. But there is no change in principle.
Applying
these four steps of the revised Morin framework in this case, J’s
constitutional right to be tried within a reasonable time was violated. The
49.5‑month delay from the charges to the end of the scheduled trial date
is sufficient to trigger an inquiry into whether the delay is unreasonable.
There were 10.5 months of inherent delay and 18 months of institutional delay.
These findings make it appropriate to conclude that the reasonable time
requirements for a case of this nature were 28.5 months. The case in fact
took 49.5 months. The difference is 21 months. Of that, 4 months
are attributable to the defence. The rest ― a period of 17 months —
counts against the state. In other words, this case took almost a year and a
half longer than what would be a reasonable period to prosecute a case of this
nature. This is not a close case. The time to the end of trial greatly exceeds
what would be a reasonable time to prosecute a similar case. While there are
societal interests in the trial on the merits of the serious drug crimes
alleged against J, these cannot make reasonable the grossly excessive time that
it took society to bring him to trial.
In
contrast, the majority’s new framework is not an appropriate approach to
interpreting and applying the s. 11 (b) right, for several reasons.
First, the new approach reduces reasonableness to numerical ceilings.
Reasonableness cannot be judicially defined with precision or captured by a
number. As well, the majority’s judicially created ceilings largely uncouple
the right to be tried within a reasonable time from the bedrock constitutional
requirement of reasonableness, which is the core of the right.
Moreover,
this approach unjustifiably diminishes the right to be tried within a
reasonable time. When the elapsed time is below the ceiling, an accused would
have to show not only that the case took markedly longer than it reasonably
should have but also that he or she took meaningful steps that demonstrate a
sustained effort to expedite the proceedings. This requirement has no bearing
on whether the delay was unreasonable.
The
majority’s approach also exceeds the proper role of the Court. Creating fixed
or presumptive ceilings is a task better left to legislatures. The ceilings
place new limits on the exercise of the s. 11 (b) right to a trial
within a reasonable time for reasons of administrative efficiency that have
nothing to do with whether the delay in a given case was or was not excessive.
This is inconsistent with the judicial role.
As
well, the ceilings have no support in the record in this case. What evidence
there is in the record suggests that it would be unwise to establish these
sorts of ceilings. For the vast majority of cases, the ceilings are so high
that they risk being meaningless. They are unlikely to address the culture of
delay that is said to exist and are more likely to feed such a culture.
The
majority’s approach also risks negative consequences for the administration of
justice. The presumptive ceilings are unlikely to improve the pace at which the
vast majority of cases move through the system. As well, if this new framework
were applied immediately, the majority’s transitional provisions would not
avoid the risk of thousands of judicial stays.
Moreover,
the increased simplicity which is said to flow from the majority’s new
framework is likely illusory. Even if creating ceilings were an appropriate
task for the courts and even if there were an appropriate evidentiary basis for
them, there is little reason to think these ceilings would avoid the
complexities inherent in deciding whether a particular delay is unreasonable.
The majority’s framework simply moves the complexities of the analysis to a new
location: deciding whether to rebut the presumption that a delay is
unreasonable if it exceeds the ceiling in particular cases.
Ultimately,
the majority’s new framework casts aside three decades of the Court’s
jurisprudence when no participant in the appeal called for such a wholesale
change, has not been the subject of adversarial scrutiny or debate, and risks
thousands of judicial stays. In short, the new framework is wrong in principle
and unwise in practice.
Cases Cited
By Moldaver, Karakatsanis and Brown JJ.
Overruled:
R. v. Morin, [1992] 1 S.C.R. 771; referred to: R. v. Askov,
[1990] 2 S.C.R. 1199; R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d)
396; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Williamson,
2016 SCC 28, [2016] 1 S.C.R. 741; Ontario (Attorney General) v. Fraser,
2011 SCC 20, [2011] 2 S.C.R. 3; R. v. Henry, 2005 SCC 76, [2005] 3
S.C.R. 609; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Conway,
[1989] 1 S.C.R. 1659; R. v. Elliott (2003), 114 C.R.R. (2d) 1; R. v.
Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625; R. v. Auclair, 2014 SCC
6, [2014] 1 S.C.R. 83; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R.
760; R. v. Tremblay, [1987] 2 S.C.R. 435; Canada (Attorney General)
v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Brydges, [1990] 1
S.C.R. 190; R. v. Feeney, [1997] 2 S.C.R. 117; Mills v. The Queen,
[1986] 1 S.C.R. 863; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; Lavallee,
Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3
S.C.R. 209; Canada (Attorney General) v. Federation of Law Societies of
Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; R. v. Omar, 2007 ONCA 117,
84 O.R. (3d) 493; R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74.
By Cromwell J.
Applied:
R. v. Morin, [1992] 1 S.C.R. 771, aff’g (1990), 55 C.C.C. (3d) 209; referred
to: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey,
[1987] 1 S.C.R. 588; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Smith,
[1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Godin,
2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Beason (1983), 36 C.R. (3d) 73; R.
v. Sharma, [1992] 1 S.C.R. 814; R. v. Brassard, [1993] 4 S.C.R. 287;
R. v. Nuosci, [1993] 4 S.C.R. 283; R. v. Ghavami, 2010 BCCA 126,
253 C.C.C. (3d) 74; Beavers v. Haubert, 198 U.S. 77 (1905).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 10 (b), 11 (b).
Criminal Code, R.S.C. 1985, c. C‑46,
s. 561 .
International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 14(3)(c).
Magna Carta (1215), clause 40.
Speedy Trial Act of 1974, 18 U.S.C.
§ 3161 (2012).
Authors Cited
Alberta Justice and Solicitor General. Criminal Justice
Division. “Injecting a Sense of Urgency: A new approach to delivering justice
in serious and violent criminal cases”, report by Greg Lepp, April 2013
(online: https://justice.alberta.ca/programs_services/criminal_pros/Documents/InjectingSenseUrgency.pdf).
Amsterdam, Anthony G. “Speedy Criminal Trial: Rights and
Remedies” (1975), 27 Stan. L. Rev. 525.
B.C. Justice Reform Initiative. A Criminal Justice System for the
21st Century: Final Report to the Minister of Justice and Attorney General
Honourable Shirley Bond, report by D. Geoffrey Cowper, Q.C., Chair.
Victoria: The Initiative, 2012.
British Columbia. Provincial Court. “Justice Delayed: A Report of
the Provincial Court of British Columbia Concerning Judicial Resources”,
September 14, 2010 (online:
www.provincialcourt.bc.ca/downloads/pdf/Justice_Delayed_-_A_Report_of_the_Provincial_Court_of_British_Columbia_Concerning_Judicial_Resource.pdf).
British Columbia. Provincial Court. “The Semi‑Annual Time to
Trial Report of the Provincial Court of British Columbia to March 31,
2015” (online:
www.provincialcourt.bc.ca/downloads/pdf/Time%20to%20Trial%20-%20Update%20(as%20at%20March%2031,%202015).pdf).
Canada. Department of Justice. “The Final Report on Early Case
Consideration of the Steering Committee on Justice Efficiencies and Access to
the Justice System”, 2006 (online:
www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/).
Canada. Law Reform Commission. Working Paper 67. Trial Within a
Reasonable Time: A Working Paper Prepared for the Law Reform Commission of
Canada. Ottawa: Canada Communication Group, 1994.
Code, Michael A. Trial Within a Reasonable Time: A Short
History of Recent Controversies Surrounding Speedy Trial Rights in Canada and
the United States. Scarborough, Ont.: Carswell, 1992.
Hill, Casey, and Jeremy Tatum. “Re‑Chartering an Old Course
Rather than Staying Anew in Remedying Unreasonable Delay under the Charter ”,
paper presented at the Crown Defence Conference, Winnipeg, September 2012
(online: www.crowndefence.ca/wp-content/uploads/2011/05/Justice-Casey-Hill_Remedying-Unreasonable-Delay1.pdf).
Hogg, Peter W. Constitutional Law of Canada, 5th ed.
Supp. Toronto: Carswell, 2007 (updated 2015, release 1).
Hopwood, Shon. “The Not So Speedy Trial Act” (2014), 89 Wash. L.
Rev. 709.
LaFave, Wayne R., et al. Criminal
Procedure, 5th ed. St. Paul, Minn.: West,
2009.
Lamer, Antonio. “The Role of Judges”, address to the Empire Club of
Canada, 1995 (online: http://speeches.empireclub.org/61076/data?n=1).
LeSage, Patrick J., and Michael Code. Report of the Review
of Large and Complex Criminal Case Procedures. Toronto: Ontario Ministry of
the Attorney General, 2008.
McLachlin, Beverley. “The Challenges We Face” (2007), 40 U.B.C.
L. Rev. 819.
Ruby, Clayton C. “Trial Within a Reasonable Time under
Section 11 (b): the Ontario Court of Appeal Disconnects from the Supreme
Court” (2013), 2 C.R. (7th) 91.
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Publishing, 2007.
APPEAL
from a judgment of the British Columbia Court of Appeal (Newbury, MacKenzie and
Stromberg‑Stein JJ.A.), 2014 BCCA 241, 357 B.C.A.C. 137, 611 W.A.C.
137, 313 C.R.R. (2d) 1, [2014] B.C.J. No. 1263 (QL), 2014 CarswellBC 1760
(WL Can.), affirming a decision of Verhoeven J., 2012 BCSC 1735, [2012]
B.C.J. No. 2448 (QL), 2012 CarswellBC 3655 (WL Can.). Appeal allowed.
Eric V.
Gottardi and Tony C. Paisana, for the
appellant.
Croft
Michaelson, Q.C., and Peter R. LaPrairie,
for the respondent.
Jolaine
Antonio, for the intervener the Attorney General of
Alberta.
Tim A.
Dickson and Martin Twigg, for the intervener
the British Columbia Civil Liberties Association.
Frank
Addario and Erin Dann, for the intervener
the Criminal Lawyers’ Association (Ontario).
The
judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by
Moldaver, Karakatsanis
and Brown JJ. —
I.
Introduction
[1]
Timely justice is one of the hallmarks of a free
and democratic society. In the criminal law context, it takes on special
significance. Section 11 (b) of the Canadian Charter of Rights and
Freedoms attests to this, in that it guarantees the right of accused
persons “to be tried within a reasonable time”.
[2]
Moreover, the Canadian public expects their
criminal justice system to bring accused persons to trial expeditiously. As the
months following a criminal charge become years, everyone suffers. Accused
persons remain in a state of uncertainty, often in pre-trial detention. Victims
and their families who, in many cases, have suffered tragic losses cannot move
forward with their lives. And the public, whose interest is served by promptly
bringing those charged with criminal offences to trial, is justifiably
frustrated by watching years pass before a trial occurs.
[3]
An efficient criminal justice system is
therefore of utmost importance. The ability to provide fair trials within a
reasonable time is an indicator of the health and proper functioning of the
system itself. The stakes are indisputably high.
[4]
Our system, however, has come to tolerate
excessive delays. The circumstances in this appeal are illustrative. Notwithstanding
a delay of over four years in bringing a drug case of modest complexity to
trial, both the trial judge and the Court of Appeal were of the view that the
appellant was tried within a reasonable time. Their analyses are reflective of
doctrinal and practical difficulties plaguing the current analytical framework
governing s. 11 (b). These difficulties have fostered a culture of
complacency within the system towards delay.
[5]
A change of direction is therefore required. Below,
we set out a new framework for applying s. 11 (b). At the centre of this
new framework is a presumptive ceiling on the time it should take to bring an
accused person to trial: 18 months for cases going to trial in the provincial
court, and 30 months for cases going to trial in the superior court. Of course,
given the contextual nature of reasonableness, the framework accounts for
case-specific factors both above and below the presumptive ceiling. This
framework is intended to focus the s. 11 (b) analysis on the issues that
matter and encourage all participants in the criminal justice system to
cooperate in achieving reasonably prompt justice, with a view to fulfilling s.
11 (b)’s important objectives.
[6]
Applying this new framework, including its
transitional features, we conclude that the appellant was not brought to trial
within a reasonable time. We would allow the appeal, set aside his convictions and
direct a stay of proceedings.
II.
Facts
[7]
The appellant, Mr. Jordan, was arrested in
December 2008 following an RCMP investigation into a “dial-a-dope” operation in
Langley and Surrey, British Columbia. He was eventually charged with nine other
co-accused on a 14-count information alleging various offences relating to
possession and trafficking. Mr. Jordan remained in custody until February 2009,
when he was released under strict house arrest and other restrictive bail
conditions.
[8]
The 10 co-accused made numerous appearances
through the early months of 2009 as they obtained counsel, made their
elections, and coordinated schedules. By May 2009, all counsel had agreed that
the preliminary inquiry would require approximately four days, and it was
eventually set for May 13, 14, 17 and 18, 2010. Several of the co-accused
entered guilty pleas or were severed from the information. By the time the
preliminary inquiry commenced, there were five co-accused left on the
information, including Mr. Jordan.
[9]
At the preliminary inquiry, it quickly became
apparent that the initial time estimate of four days was too low. Crown counsel
advised the preliminary inquiry judge that the Crown would be able to present
all of the evidence against the four co-accused, but that the Crown would
require significantly more court time to present the “mountain of evidence” it
had in respect of Mr. Jordan. The parties sought and obtained continuation
dates throughout 2010 and into 2011. In May 2011, Mr. Jordan (along with two
co-accused) was committed to stand trial on all 14 counts. The preliminary
inquiry — which ended up taking nine days of court time — had taken a full year
to complete. It was now two and a half years since Mr. Jordan had been charged.
[10]
Following committal, the matter moved to the
British Columbia Supreme Court. Crown counsel estimated that six weeks would be
required for trial, and the trial was set for the first available six-week
block — in September 2012. A new Crown counsel took over the file in July 2011,
and wrote to Mr. Jordan’s counsel advising of her estimate that only two to
three weeks would be needed to present the Crown’s case, and offering to seek
earlier trial dates. Mr. Jordan’s counsel did not respond to this offer. Later,
in December 2011, one of the remaining two co-accused was severed from the
information. Only Mr. Jordan and one co-accused remained.
[11]
As Mr. Jordan awaited trial, his liberty was
restricted. He spent two months in custody following his arrest in December
2008, which was followed by close to four years of restrictive bail conditions.
However, in July 2011, Mr. Jordan was convicted of prior drug charges and was
sentenced to a 15-month conditional sentence order (“CSO”), which he served
until October 2012. The conditions of the CSO were similar to the bail conditions
Mr. Jordan was under for the charges at issue in this appeal. Therefore, for 15
months of the delay, Mr. Jordan’s liberty was restricted by both the bail
conditions and the CSO.
[12]
At the start of his trial in September 2012, Mr.
Jordan brought an application for a stay of proceedings alleging a breach of
his s. 11 (b) right to be tried within a reasonable time. This
application was dismissed. The trial was adjourned, and it eventually concluded
in February 2013 with his conviction on five drug-related offences. The total
delay from Mr. Jordan’s charges to the conclusion of the trial was 49.5 months.
III.
Judgments Below
A.
British Columbia Supreme Court, 2012 BCSC 1735
[13]
The trial judge found that the delay in bringing
this matter to trial was not unreasonable, and declined to enter a stay of
proceedings. In concluding there was no s. 11 (b) breach, he applied the
framework from this Court’s decision in R. v. Morin, [1992] 1 S.C.R. 771,
including the guidelines set out in it for how much institutional delay is generally
tolerable.
[14]
The trial judge found that the inherent time
requirements for this case were 10.5 months. He also found that, of the total
delay, four months (incurred when Mr. Jordan changed counsel and requested an
adjournment of his trial) were attributable to the defence, and two months were
attributable to the Crown.
[15]
The bulk of the delay — 32.5 months — was
attributable to institutional delay, of which 19 months occurred at the
Provincial Court and 13.5 months occurred at the B.C. Supreme Court. This was,
as the trial judge noted, well outside the Morin guidelines for
tolerable institutional delay of eight to ten months in the provincial court,
and six to eight months in the superior court. However, the trial judge held
that institutional delay should be given less weight than Crown delay in the
final balancing.
[16]
The trial judge then considered the issue of
prejudice. He reasoned that if the institutional delay had been within the Morin
guidelines, the trial would have concluded by May 2011. Most of the additional
delay coincided with the term of Mr. Jordan’s CSO. The trial judge therefore
found that Mr. Jordan’s liberty interest was not significantly prejudiced by
the delay. While Mr. Jordan’s security of the person was affected, any
prejudice was minimized by the fact that he was facing other outstanding
charges for much of the delay. Finally, he found no prejudice to Mr. Jordan’s
right to make full answer and defence because the Crown’s case did not depend
on the memory of witnesses.
[17]
The trial judge balanced all of the factors and
concluded that Mr. Jordan’s s. 11 (b) right had not been infringed, due
primarily to the fact that Mr. Jordan did not suffer significant prejudice.
B.
British Columbia Court of Appeal, 2014 BCCA 241,
357 B.C.A.C. 137
[18]
Mr. Jordan appealed. He argued that the trial
judge erred in his assessment of prejudice and gave inadequate weight to the
excessive institutional delay. The Court of Appeal found that the trial judge
did not err in his attribution of the delay, or in his weighing of the
institutional delay. Further, the trial judge’s determination on prejudice was
a finding of fact that was entitled to deference. Finally, the trial judge did
not err by declining to infer prejudice based on the length of the delay alone.
The appeal was dismissed.
IV.
Analysis
A.
The Right to Be Tried Within a Reasonable Time
Is Important to Individuals and Society as a Whole
[19]
As we have said, the right to be tried within a
reasonable time is central to the administration of Canada’s system of criminal
justice. It finds expression in the familiar maxim: “Justice delayed is justice
denied.” An unreasonable delay denies justice to the accused, victims and their
families, and the public as a whole.
[20]
Trials within a reasonable time are an essential
part of our criminal justice system’s commitment to treating presumptively
innocent accused persons in a manner that protects their interests in liberty,
security of the person, and a fair trial. Liberty is engaged because a timely
trial means an accused person will spend as little time as possible held in
pre-trial custody or living in the community under release conditions. Security
of the person is impacted because a long-delayed trial means prolonging the
stress, anxiety, and stigma an accused may suffer. Fair trial interests are
affected because the longer a trial is delayed, the more likely it is that some
accused will be prejudiced in mounting a defence, owing to faded memories,
unavailability of witnesses, or lost or degraded evidence.
[21]
At the same time, we recognize that some accused
persons who are in fact guilty of their charges are content to see their trials
delayed for as long as possible. Indeed, there are incentives for them to
remain passive in the face of delay. 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 (Morin,
at pp. 801-2).
[22]
Of course, the interests protected by s. 11 (b)
extend beyond those of accused persons. Timely trials impact other people who
play a role in and are affected by criminal trials, as well as the public’s
confidence in the administration of justice.
[23]
Victims of crime and their families may be
devastated by criminal acts and therefore have a special interest in timely
trials (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1220-21). Delay aggravates
victims’ suffering, preventing them from moving on with their lives.
[24]
Timely trials allow victims and witnesses to
make the best possible contribution to the trial, and minimize the “worry and
frustration [they experience] until they have given their testimony” (Askov,
at p. 1220). Repeated delays interrupt their personal, employment or business
activities, creating inconvenience that may present a disincentive to their
participation.
[25]
Last but certainly not least, timely trials are
important to maintaining overall public confidence in the administration of
justice. As McLachlin J. (as she then was) put it in Morin, “delays are
of consequence not only to the accused, but may affect the public interest in
the prompt and fair administration of justice” (p. 810). Crime is of serious
concern to all members of the community. Unreasonable delay leaves the innocent
in limbo and the guilty unpunished, thereby offending the community’s sense of
justice (see Askov, at p. 1220). Failure “to deal fairly, quickly and
efficiently with criminal trials inevitably leads to the community’s
frustration with the judicial system and eventually to a feeling of contempt
for court procedures” (p. 1221).
[26]
Extended delays undermine public confidence in
the system. And public confidence is essential to the survival of the system
itself, as “a fair and balanced criminal justice system simply cannot exist
without the support of the community” (Askov, at p. 1221).
[27]
Canadians therefore rightly expect a system that
can deliver quality justice in a reasonably efficient and timely manner. Fairness
and timeliness are sometimes thought to be in mutual tension, but this is not
so. As D. Geoffrey Cowper, Q.C., wrote in a report commissioned by the B.C.
Justice Reform Initiative:
. .
. the widely perceived conflict between justice and efficiency goals is not
based in reason or sound analysis. The real experience of the system is that
both must be pursued in order for each to be realised: they are, in practice,
interdependent.
(A
Criminal Justice System for the 21st Century (2012), at p. 75)
[28]
In short, timely trials further the interests of
justice. They ensure that the system functions in a fair and efficient manner;
tolerating trials after long delays does not. Swift, predictable justice, “the
most powerful deterrent of crime” is seriously undermined and in some cases
rendered illusory by delayed trials (McLachlin C.J., “The Challenges We Face”,
remarks to the Empire Club of Canada, published in (2007), 40 U.B.C. L. Rev.
819, at p. 825).
B.
Problems With the Current Framework
[29]
While this Court has always recognized the
importance of the right to a trial within a reasonable time, in our view,
developments since Morin demonstrate that the system has lost its way. The
framework set out in Morin has given rise to both doctrinal and
practical problems, contributing to a culture of delay and complacency towards
it.
[30]
The Morin framework requires courts to
balance four factors in determining whether a breach of s. 11 (b) has
occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for
the delay, including the inherent needs of the case, defence delay, Crown
delay, institutional delay, and other reasons for delay; and (4) prejudice to
the accused’s interests in liberty, security of the person, and a fair trial. Prejudice
can be either actual or inferred from the length of the delay. Institutional
delay in particular is assessed against a set of guidelines developed by this
Court in Morin: eight to ten months in the provincial court, and a
further six to eight months after committal for trial in the superior court. The
Morin guidelines reflect the fact that resources are finite and there
must accordingly be some tolerance for institutional delay. Institutional delay
within or close to the guidelines has generally been considered to be
reasonable.
[31]
This framework suffers from a number of related
doctrinal shortcomings.
[32]
First, its application is highly unpredictable. It
has been interpreted so as to permit endless flexibility, making it difficult
to determine whether a breach has occurred. The absence of a consistent
standard has turned s. 11 (b) into something of a dice roll, and has led
to the proliferation of lengthy and often complex s. 11 (b) applications,
thereby further burdening the system.
[33]
Second, as the parties and interveners point
out, the treatment of prejudice has become one of the most fraught areas in the
s. 11 (b) jurisprudence: it is confusing, hard to prove, and highly
subjective. As to the confusion prejudice has caused, courts have struggled to
distinguish between “actual” and “inferred” prejudice. And attempts to draw
this distinction have led to apparent inconsistencies, such as that prejudice
might be inferred even when the evidence shows that the accused suffered no
actual prejudice. Further, actual prejudice can be quite difficult to
establish, particularly prejudice to security of the person or fair trial
interests. Courts have also found that “it may not always be easy” to
distinguish between prejudice stemming from the delay versus the charge itself
(R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d) 396, at para. 43). And
even if sufficient evidence is adduced, the interpretation of that evidence is
a highly subjective enterprise.
[34]
Despite this confusion, prejudice has, as this
case demonstrates, become an important if not determinative factor. Long delays
are considered “reasonable” if the accused is unable to demonstrate significant
actual prejudice to his or her protected interests. This is a problem because
the accused’s and the public’s interests in a trial within a reasonable time
does not necessarily turn on how much suffering an accused has endured. Delayed
trials may also cause prejudice to the administration of justice.
[35]
Third, the Morin framework requires a
retrospective inquiry, since the analysis of delay arises only after the delay
has been incurred. Courts and parties are operating within a framework that is
designed not to prevent delay, but only to redress (or not redress) it. As a
consequence, they are not motivated to manage “each case in advance to achieve future
compliance with consistent standards” (M. A. Code, Trial Within a
Reasonable Time (1992), at p. 117 (emphasis in original)). Courts are
instead left to pick up the pieces once the delay has transpired. This
after-the-fact review of past delay is understandably frustrating for trial
judges, who have only one remedial tool at their disposal — a stay of
proceedings. It is therefore unsurprising that courts have occasionally
strained in applying the Morin framework to avoid a stay.
[36]
The retrospective analysis required by Morin
also encourages parties to quibble over rationalizations for vast periods of
pre-trial delay. Here, for example, the Crown argues that the trial judge erred
in characterizing most of the delay as Crown or institutional delay. Had he
assessed it properly, the argument goes, he would have attributed only 5 to 8
months as Crown or institutional delay, as opposed to 34.5 months. Competing
after-the-fact explanations allow for potentially limitless variations in
permissible delay. As the intervener the Criminal Lawyers’ Association
(Ontario) submits: “Boundless flexibility is incompatible with the concept of a
Charter right and has proved to serve witnesses, victims, defendants and
the justice system’s reputation poorly” (I.F., at para. 12).
[37]
Finally, the Morin framework is unduly
complex. The minute accounting it requires might fairly be considered the bane
of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin,
2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the
forest for the trees (para. 18), courts and litigants have often done just
that. Each day of the proceedings from charge to trial is argued about, accounted
for, and explained away. This micro-counting is inefficient, relies on judicial
“guesstimations”, and has been applied in a way that allows for tolerance of
ever-increasing delay.
[38]
In sum, from a doctrinal perspective, the s. 11 (b)
framework is too unpredictable, too confusing, and too complex. It has itself
become a burden on already over-burdened trial courts.
[39]
These doctrinal problems have contributed to
problems in practice.
[40]
As we have observed, a culture of complacency
towards delay has emerged in the criminal justice system (see, e.g., Alberta
Justice and Solicitor General, Criminal Justice Division, “Injecting a Sense of
Urgency: A new approach to delivering justice in serious and violent criminal
cases”, report by G. Lepp (April 2013) (online), at p. 17; Cowper, at p. 4; P.
J. LeSage and M. Code, Report of the Review of Large and Complex Criminal
Case Procedures (2008), at p. 15; Canada, Department of Justice, “The Final
Report on Early Case Consideration of the Steering Committee on Justice Efficiencies
and Access to the Justice System” (2006) (online), at pp. 5-6). Unnecessary
procedures and adjournments, inefficient practices, and inadequate
institutional resources are accepted as the norm and give rise to
ever-increasing delay. This culture of delay “causes great harm to public
confidence in the justice system” (LeSage and Code, at p. 16). It “rewards the
wrong behaviour, frustrates the well-intentioned, makes frequent users of the
system cynical and disillusioned, and frustrates the rehabilitative goals of
the system” (Cowper, at p. 48).
[41]
The Morin framework does not address this
culture of complacency. Delay is condemned or rationalized at the back end. As
a result, participants in the justice system — police, Crown counsel, defence
counsel, courts, provincial legislatures, and Parliament — are not encouraged
to take preventative measures to address inefficient practices and resourcing
problems. Some courts, with the cooperation of counsel, have undertaken
commendable efforts to change courtroom culture, maximize efficiency, and
minimize delay, thereby showing that it is possible to do better. Some
legislative changes and government initiatives have also been taken. In many
cases, however, much remains to be done.
[42]
Aggravating the tolerance for delay is the
increased complexity of pre-trial and trial processes since Morin. New
offences, procedures, obligations on the Crown and police, and legal tests have
emerged. Many of them put a premium on fairness, reasonableness, and a
fact-specific analysis. They take time. They also take up judges, courtrooms,
and other resources.
[43]
Complexity is sometimes unavoidable in order to
achieve fairness or ensure that the state lives up to its constitutional
obligations. But the quality of justice does not always increase proportionally
to the length and complexity of a trial. Unnecessary procedural steps and
inefficient advocacy have the opposite effect, weighing down the entire system.
A criminal proceeding does not take place in a vacuum. Each procedural step or
motion that is improperly taken, or takes longer than it should, along with
each charge that should not have been laid or pursued, deprives other worthy
litigants of timely access to the courts.
[44]
The intervener Attorney General of Alberta
submits that a change in courtroom culture is needed. This submission echoes
former Chief Justice Lamer’s two decades-old call for participants in the
justice system to “find ways to retain a fair process . . . that can achieve
practical results in a reasonable time and at reasonable expense” (“The Role of
Judges”, address to the Empire Club of Canada, 1995 (online)).
[45]
We agree. And, along with other participants in
the justice system, this Court has a role to play in changing courtroom culture
and facilitating a more efficient criminal justice system, thereby protecting
the right to trial within a reasonable time. We accept Mr. Jordan’s invitation
— which was echoed by the Criminal Lawyers’ Association (Ontario), the British
Columbia Civil Liberties Association, and Mr. Williamson in the companion
appeal of R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741 — to revise
the s. 11 (b) analysis. While departing from a precedent of this Court
“is a step not to be lightly undertaken” (Ontario (Attorney General) v.
Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 56), as we have explained,
“there are compelling reasons to do so” (R. v. Henry, 2005 SCC 76,
[2005] 3 S.C.R. 609, at para. 44).
V.
A New Framework for Section 11 (b)
Applications
A.
Summary
[46]
At the heart of the new framework is a ceiling
beyond which delay is presumptively unreasonable. The presumptive ceiling is
set at 18 months for cases going to trial in the provincial court, and at 30
months for cases going to trial in the superior court (or cases going to trial
in the provincial court after a preliminary inquiry).
[47]
If the total delay from the charge to the actual
or anticipated end of trial (minus defence delay) exceeds the ceiling,
then the delay is presumptively unreasonable. To rebut this presumption, the
Crown must establish the presence of exceptional circumstances. If it cannot,
the delay is unreasonable and a stay will follow.
[48]
If the total delay from the charge to the actual
or anticipated end of trial (minus defence delay or a period of delay
attributable to exceptional circumstances) falls below the presumptive
ceiling, then the onus is on the defence to show that the delay is
unreasonable. To do so, the defence must establish that (1) it took meaningful steps
that demonstrate a sustained effort to expedite the proceedings, and (2)
the case took markedly longer than it reasonably should have. We expect stays
beneath the ceiling to be rare, and limited to clear cases.
B.
The Presumptive Ceiling
[49]
The most important feature of the new framework
is that it sets a ceiling beyond which delay is presumptively unreasonable. For
cases going to trial in the provincial court, the presumptive ceiling is 18
months from the charge to the actual or anticipated end of trial. For cases
going to trial in the superior court, the presumptive ceiling is 30 months from
the charge to the actual or anticipated end of trial. We note the 30-month
ceiling would also apply to cases going to trial in the provincial court after
a preliminary inquiry.
As we will discuss, defence-waived or -caused delay does not count in
calculating whether the presumptive ceiling has been reached — that is, such
delay is to be discounted.
[50]
A presumptive ceiling is required in order to
give meaningful direction to the state on its constitutional obligations and to
those who play an important role in ensuring that the trial concludes within a
reasonable time: court administration, the police, Crown prosecutors, accused
persons and their counsel, and judges. It is also intended to provide some
assurance to accused persons, to victims and their families, to witnesses, and
to the public that s. 11 (b) is not a hollow promise.
[51]
While the presumptive ceiling will enhance
analytical simplicity and foster constructive incentives, it is not the end of
the exercise: as we will explain in greater detail, compelling case-specific
factors remain relevant to assessing the reasonableness of a period of delay
both above and below the ceiling. Obviously, reasonableness cannot be captured
by a number alone, which is why the new framework is not solely a function of
time. Contrary to what our colleague Cromwell J. asserts, we do not depart from
the concept of reasonableness; we simply adopt a different view of how
reasonableness should be assessed.
[52]
In setting the presumptive ceiling, we were
guided by a number of considerations. First, it takes as a starting point the Morin
guidelines.
In Morin, this Court set eight to ten months as a guide for
institutional delay in the provincial court, and an additional six to eight
months as a guide for institutional delay in the superior court following an
accused’s committal for trial. Thus, under Morin, a total of 14 to 18
months was the measure for proceedings involving both the provincial court and
the superior court.
[53]
Second, the presumptive ceiling also reflects
additional time to account for the other factors that can reasonably contribute
to the time it takes to prosecute a case. These factors include the inherent
time requirements of the case and the increased complexity of criminal cases
since Morin. In this way, the ceiling takes into account the significant
role that process now plays in our criminal justice system.
[54]
Third, although prejudice will no longer play an
explicit role in the s. 11 (b) analysis, it informs the setting of the
presumptive ceiling. Once the ceiling is breached, we presume that accused
persons will have suffered prejudice to their Charter -protected liberty,
security of the person, and fair trial interests. As this Court wrote in Morin,
“prejudice to the accused can be inferred from prolonged delay” (p. 801; see
also Godin, at para. 37). This is not, we stress, a rebuttable
presumption: once the ceiling is breached, an absence of actual prejudice
cannot convert an unreasonable delay into a reasonable one.
[55]
Fourth, the presumptive ceiling has an important
public interest component. The clarity and assurance it provides will build
public confidence in the administration of justice.
[56]
We also make this observation about the
presumptive ceiling. It is not an aspirational target. Rather, it is the point
at which delay becomes presumptively unreasonable. The public should expect
that most cases can and should be resolved before reaching the ceiling. For
this reason, as we will explain, the Crown bears the onus of justifying delays
that exceed the ceiling. It is also for this reason that an accused may in
clear cases still demonstrate that his or her right to be tried within a
reasonable time has been infringed, even before the ceiling has been breached.
[57]
There is little reason to be satisfied with a
presumptive ceiling on trial delay set at 18 months for cases going to trial in
the provincial court, and 30 months for cases going to trial in the superior
court. This is a long time to wait for justice. But the ceiling reflects the
realities we currently face. We may have to revisit these numbers and the
considerations that inform them in the future.
[58]
Our colleague Cromwell J. misapprehends the
effect of the presumptive ceiling, asserting that this framework “reduces
reasonableness to two numerical ceilings” (para. 254). As we will explain in
greater detail, this is clearly not so. The presumptive ceiling marks the point
at which the burden shifts from the defence to prove that the delay was
unreasonable, to the Crown to justify the length of time the case has taken. As
our colleague acknowledges, pursuant to our framework, “the judge must look at
the circumstances of the particular case at hand” in assessing the
reasonableness of a delay (para. 301).
[59]
We now turn to discussing the various
case-specific factors that must be accounted for both above and below the
presumptive ceiling.
C.
Accounting for Defence Delay
[60]
Application of this framework, as under the Morin
framework, begins with calculating the total delay from the charge to the
actual or anticipated end of trial. Once that is determined, delay attributable
to the defence must be subtracted. The defence should not be allowed to benefit
from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The
purpose of s. 11 (b) is to expedite trials and minimize prejudice and not
to avoid trials on the merits” (p. 802).
[61]
Defence delay has two components. The first is
delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp.
790-91). 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. However, as in
the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11 (b),
it must be remembered that it is not the right itself which is being waived,
but merely the inclusion of specific periods in the overall assessment of
reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, per L’Heureux-Dubé
J., at p. 1686).
[62]
Accused persons sometimes, either before or
during their preliminary hearing, wish to re-elect from a superior court trial
to a provincial court trial for legitimate reasons. To do so, the Crown’s
consent must be obtained (Criminal Code, R.S.C. 1985, c. C-46, s. 561 ). Of
course, it would generally be open to the Crown to ask the accused to waive the
delay stemming from the re-election as a condition of its consent.
[63]
The second component of defence delay is delay
caused solely by the conduct of the defence. This kind of defence delay
comprises “those situations where the accused’s acts either directly caused the
delay . . . or the acts of the accused are shown to be a deliberate
and calculated tactic employed to delay the trial” (Askov, at pp.
1227-28). Deliberate and calculated defence tactics aimed at causing delay,
which include frivolous applications and requests, are the most straightforward
examples of defence delay. Trial judges should generally dismiss such
applications and requests the moment it becomes apparent they are frivolous.
[64]
As another example, the defence will have
directly caused the delay if the court and the Crown are ready to proceed, but
the defence is not. The period of delay resulting from that unavailability will
be attributed to the defence. However, periods of time during which the court
and the Crown are unavailable will not constitute defence delay, even if
defence counsel is also unavailable. This should discourage unnecessary
inquiries into defence counsel availability at each appearance. Beyond defence
unavailability, it will of course be open to trial judges to find that other
defence actions or conduct have caused delay (see, e.g., R. v. Elliott
(2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
[65]
To be clear, defence actions legitimately taken
to respond to the charges fall outside the ambit of defence delay. For example,
the defence must be allowed preparation time, even where the court and the
Crown are ready to proceed. In addition, defence applications and requests that
are not frivolous will also generally not count against the defence. We have
already accounted for procedural requirements in setting the ceiling. And such
a deduction would run contrary to the accused’s right to make full answer and
defence. While this is by no means an exact science, first instance judges are
uniquely positioned to gauge the legitimacy of defence actions.
[66]
To summarize, as a first step, total delay must
be calculated, and defence delay must be deducted. Defence delay comprises
delays waived by the defence, and delays caused solely or directly by the
defence’s conduct. Defence actions legitimately taken to respond to the charges
do not constitute defence delay.
[67]
The next step of the analysis depends upon whether
the remaining delay — that is, the delay which was not caused by the defence —
is above or below the presumptive ceiling.
D.
Above the Ceiling — Presumptively Unreasonable
Delay
[68]
Delay (minus defence delay) that exceeds the
ceiling is presumptively unreasonable. The Crown may rebut this presumption by
showing that the delay is reasonable because of the presence of exceptional
circumstances.
Exceptional Circumstances
[69]
Exceptional circumstances lie outside the
Crown’s control in the sense that (1) they are reasonably unforeseen or
reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy
the delays emanating from those circumstances once they arise. So long as they
meet this definition, they will be considered exceptional. They need not meet a
further hurdle of being rare or entirely uncommon.
[70]
It is not enough for the Crown, once the ceiling
is breached, to point to a past difficulty. It must also show that it took
reasonable available steps to avoid and address the problem before the
delay exceeded the ceiling. This might include prompt resort to case management
processes to seek the assistance of the court, or seeking assistance from the
defence to streamline evidence or issues for trial or to coordinate pre-trial
applications, or resorting to any other appropriate procedural means. The
Crown, we emphasize, is not required to show that the steps it took were
ultimately successful — rather, just that it took reasonable steps in an
attempt to avoid the delay.
[71]
It is obviously impossible to identify in
advance all circumstances that may qualify as “exceptional” for the purposes of
adjudicating a s. 11 (b) application. Ultimately, the determination of
whether circumstances are “exceptional” will depend on the trial judge’s good
sense and experience. The list is not closed. However, in general, exceptional
circumstances fall under two categories: discrete events and particularly
complex cases.
[72]
Commencing with the former, by way of
illustration, it is to be expected that medical or family emergencies (whether
on the part of the accused, important witnesses, counsel or the trial judge)
would generally qualify. Cases with an international dimension, such as cases
requiring the extradition of an accused from a foreign jurisdiction, may also
meet the definition.
[73]
Discrete, exceptional events that arise at trial
may also qualify and require some elaboration. Trials are not well-oiled
machines. Unforeseeable or unavoidable developments can cause cases to quickly
go awry, leading to delay. For example, a complainant might unexpectedly recant
while testifying, requiring the Crown to change its case. In addition, if the
trial goes longer than reasonably expected — even where the parties have made a
good faith effort to establish realistic time estimates — then it is likely the
delay was unavoidable and may therefore amount to an exceptional circumstance.
[74]
Trial judges should be alive to the practical
realities of trials, especially when the trial was scheduled to conclude below
the ceiling but, in the end, exceeded it. In such cases, the focus should be on
whether the Crown made reasonable efforts to respond and to conclude the trial
under the ceiling. Trial judges should also bear in mind that when an issue
arises at trial close to the ceiling, it will be more difficult for the Crown
and the court to respond with a timely solution. For this reason, it is likely
that unforeseeable or unavoidable delays occurring during trials that are
scheduled to wrap up close to the ceiling will qualify as presenting
exceptional circumstances.
[75]
The period of delay caused by any discrete
exceptional events must be subtracted from the total period of delay for the
purpose of determining whether the ceiling has been exceeded. Of course, the
Crown must always be prepared to mitigate the delay resulting from a discrete
exceptional circumstance. So too must the justice system. Within reason, the
Crown and the justice system should be capable of prioritizing cases that have
faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26,
[2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the
system could reasonably have mitigated may not be subtracted (i.e. it may not
be appropriate to subtract the entire period of delay occasioned by discrete
exceptional events).
[76]
If the remaining delay falls below the ceiling,
the accused may still demonstrate in clear cases that the delay is unreasonable
as outlined below. If, however, the remaining delay exceeds the ceiling, the
delay is unreasonable and a stay of proceedings must be entered.
[77]
As indicated, exceptional circumstances also
cover a second category, namely, cases that are particularly complex. This too
requires elaboration. Particularly complex cases are cases that, because of the
nature of the evidence or the nature of the issues, require an
inordinate amount of trial or preparation time such that the delay is
justified. As for the nature of the evidence, hallmarks of particularly complex
cases include voluminous disclosure, a large number of witnesses, significant
requirements for expert evidence, and charges covering a long period of time. Particularly
complex cases arising from the nature of the issues may be characterized by,
among other things, a large number of charges and pre-trial applications, novel
or complicated legal issues, and a large number of significant issues in
dispute. Proceeding jointly against multiple co-accused, so long as it is in
the interest of justice to do so, may also impact the complexity of the case.
[78]
A typical murder trial will not usually be
sufficiently complex to comprise an exceptional circumstance. However, if an
inordinate amount of trial or preparation time is needed as a result of the
nature of the evidence or the issues such that the time the case has taken is
justified, the complexity of the case will qualify as presenting an exceptional
circumstance.
[79]
It bears reiterating that such determinations
fall well within the trial judge’s expertise. And, of course, the trial judge
will also want to consider whether the Crown, having initiated what could
reasonably be expected to be a complex prosecution, developed and followed a
concrete plan to minimize the delay occasioned by such complexity (R. v.
Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed
to do so, the Crown will not be able to show exceptional circumstances, because
it will not be able to show that the circumstances were outside its control. In
a similar vein, and for the same reason, the Crown may wish to consider whether
multiple charges for the same conduct, or trying multiple co-accused together,
will unduly complicate a proceeding. While the court plays no supervisory role
for such decisions, Crown counsel must be alive to the fact that any delay
resulting from their prosecutorial discretion must conform to the accused’s s.
11 (b) right (see, e.g., Vassell). As this Court said in R. v.
Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760:
Certainly, it is within the Crown’s
discretion to prosecute charges where the evidence would permit a reasonable
jury to convict. However, some semblance of a cost-benefit analysis would serve
the justice system well. Where the additional or heightened charges are
marginal, and pursuing them would necessitate a substantially more complex
trial process and jury charge, the Crown should carefully consider whether the
public interest would be better served by either declining to prosecute the
marginal charges from the outset or deciding not to pursue them once the
evidence at trial is complete. [para. 45]
[80]
Where the trial judge finds that the case was
particularly complex such that the time the case has taken is justified, the
delay is reasonable and no stay will issue. No further analysis is required.
[81]
To be clear, the presence of exceptional
circumstances is the only basis upon which the Crown can
discharge its burden to justify a delay that exceeds the ceiling. As discussed,
an exceptional circumstance can arise from a discrete event (such as an
illness, extradition proceeding, or unexpected event at trial) or from a case’s
complexity. The seriousness or gravity of the offence cannot be relied on,
although the more complex cases will often be those involving serious charges,
such as terrorism, organized crime, and gang-related activity. Nor can chronic
institutional delay be relied upon. Perhaps most significantly, the absence of
prejudice can in no circumstances be used to justify delays after the ceiling
is breached. Once so much time has elapsed, only circumstances that are
genuinely outside the Crown’s control and ability to remedy may furnish a
sufficient excuse for the prolonged delay.
E.
Below the Presumptive Ceiling
[82]
A delay may be unreasonable even if it falls
below the presumptive ceiling. If the total delay from the charge to the actual
or anticipated end of trial (minus defence delay and delay attributable to
exceptional circumstances that are discrete in nature) is less than 18 months
for cases going to trial in the provincial court, or 30 months for cases going
to trial in the superior court, then the defence bears the onus to show that
the delay is unreasonable. To do so, the defence must establish two things: (1)
it took meaningful steps that demonstrate a sustained effort to expedite the
proceedings, and (2) the case took markedly longer than it reasonably
should have. Absent these two factors, the s. 11 (b) application must
fail.
[83]
We expect stays beneath the ceiling to be
granted only in clear cases. As we have said, in setting the ceiling, we
factored in the tolerance for reasonable institutional delay established in Morin,
as well as the inherent needs and the increased complexity of most cases.
(1)
Defence Initiative — Meaningful and Sustained
Steps
[84]
To discharge its onus where delay falls below
the ceiling, the defence must demonstrate that it took meaningful, sustained
steps to expedite the proceedings. “Action or non-action by the accused which
is inconsistent with a desire for a timely trial is something that the court must
consider” (Morin, at p. 802). Here, the trial judge should consider what
the defence could have done, and what it actually did, to get the case heard as
quickly as possible. Substance matters, not form.
[85]
To satisfy this criterion, it is not enough for
the defence to make token efforts such as to simply put on the record that it
wanted an earlier trial date. Since the defence benefits from a strong
presumption in favour of a stay once the ceiling is exceeded, it is incumbent
on the defence, in order to justify a stay below the ceiling, to demonstrate
having taken meaningful and sustained steps to be tried quickly. While the
defence might not be able to resolve the Crown’s or the trial court’s
challenges, it falls to the defence to show that it attempted to set the
earliest possible hearing dates, was cooperative with and responsive to the
Crown and the court, put the Crown on timely notice when delay was becoming a
problem, and conducted all applications (including the s. 11 (b)
application) reasonably and expeditiously. At the same time, trial judges
should not take this opportunity, with the benefit of hindsight, to question
every decision made by the defence. The defence is required to act reasonably,
not perfectly.
[86]
Our colleague Cromwell J. criticizes this
requirement as diminishing the right to be tried within a reasonable time. We
respectfully disagree. First, this Court already considers defence conduct in
assessing s. 11 (b) applications. And the level of diligence displayed by
the accused is relevant in the context of other Charter rights as well,
like the s. 10 (b) right to counsel (R. v. Tremblay, [1987] 2
S.C.R. 435, at p. 439). Second, as mentioned, the requirement of defence
initiative below the ceiling is a corollary to the Crown’s justificatory burden
above the ceiling. Third, this requirement reflects the practical reality that
a level of cooperation between the parties is necessary in planning and
conducting a trial. Encouraging the defence to be part of the solution will
have positive ramifications not only for individual cases but for the entire
justice system, thereby enhancing — rather than diminishing — timely justice.
(2)
Reasonable Time Requirements of the Case — Time
Markedly Exceeded
[87]
Next, the defence must show that the time the
case has taken markedly exceeds the reasonable time requirements of the case. The
reasonable time requirements of a case derive from a variety of factors,
including the complexity of the case, local considerations, and whether the
Crown took reasonable steps to expedite the proceedings.
[88]
The reasonable time requirements of the case
will increase proportionally to a case’s complexity. As Sopinka J. wrote in Morin:
“All other factors being equal, the more complicated a case, the longer it will
take counsel to prepare for trial and for the trial to be conducted once it
begins” (pp. 791-92).
[89]
In considering the reasonable time requirements
of the case, trial judges should also employ the knowledge they have of their
own jurisdiction, including how long a case of that nature typically takes to
get to trial in light of the relevant local and systemic circumstances.
[90]
Where the Crown has done its part to ensure that
the matter proceeds expeditiously — including genuinely responding to defence
efforts, seeking opportunities to streamline the issues and evidence, and
adapting to evolving circumstances as the case progresses — it is unlikely that
the reasonable time requirements of the case will have been markedly exceeded. As
with assessing the conduct of the defence, trial judges should not hold the
Crown to a standard of perfection.
[91]
Determining whether the time the case has taken
markedly exceeds what was reasonably required is not a matter of precise
calculation. Trial judges should not parse each day or month, as has been the
common practice since Morin, to determine whether each step was
reasonably required. Instead, trial judges should step back from the minutiae
and adopt a bird’s-eye view of the case. All this said, this determination is a
question of fact falling well within the expertise of the trial judge (Morin,
per Sopinka J., at pp. 791-92).
F.
Applying the New Framework to Cases Already in
the System
[92]
When this Court released its decision in Askov,
tens of thousands of charges were stayed in Ontario alone as a result of the
abrupt change in the law. Such swift and drastic consequences risk undermining
the integrity of the administration of justice.
[93]
We recognize that this new framework is a
departure from the law that was applied to s. 11 (b) applications in the
past. A judicial change in the law is presumed to operate retroactively and
apply to past conduct (Canada (Attorney General) v. Hislop, 2007 SCC 10,
[2007] 1 S.C.R. 429, at para. 84). Slightly more relaxed rules apply to
judicial changes to the interpretation of constitutional provisions (para. 88).
Transition periods, suspended declarations of invalidity, and purely
prospective remedies are part of the discretionary remedial framework of our
constitutional law (paras. 88-92; R. v. Brydges, [1990] 1 S.C.R. 190, at
pp. 217-18; R. v. Feeney, [1997] 2 S.C.R. 117).
[94]
Here, there are a variety of reasons to apply
the framework contextually and flexibly for cases currently in the system, one
being that it is not fair to strictly judge participants in the criminal
justice system against standards of which they had no notice. Further, this new
framework creates incentives for both the Crown and the defence to expedite
criminal cases. However, in jurisdictions where prolonged delays are the norm,
it will take time for these incentives to shift the culture. As well, the
administration of justice cannot tolerate a recurrence of what transpired after
the release of Askov, and this contextual application of the framework
is intended to ensure that the post-Askov situation is not repeated.
[95]
The new framework, including the presumptive
ceiling, applies to cases currently in the system, subject to two
qualifications.
[96]
First, for cases in which the delay exceeds
the ceiling, a transitional exceptional circumstance may arise where the charges
were brought prior to the release of this decision. This transitional
exceptional circumstance will apply when the Crown satisfies the court that the
time the case has taken is justified based on the parties’ reasonable reliance
on the law as it previously existed. This requires a contextual assessment,
sensitive to the manner in which the previous framework was applied, and the
fact that the parties’ behaviour cannot be judged strictly, against a standard
of which they had no notice. For example, prejudice and the seriousness of the
offence often played a decisive role in whether delay was unreasonable under
the previous framework. For cases currently in the system, these considerations
can therefore inform whether the parties’ reliance on the previous state of the
law was reasonable. Of course, if the parties have had time following the
release of this decision to correct their behaviour, and the system has had
some time to adapt, the trial judge should take this into account.
[97]
Moreover, the delay may exceed the ceiling
because the case is of moderate complexity in a jurisdiction with significant
institutional delay problems. Judges in jurisdictions plagued by lengthy,
persistent, and notorious institutional delays should account for this reality,
as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament,
the legislatures, and Crown counsel need time to respond to this decision, and
stays of proceedings cannot be granted en masse simply because problems
with institutional delay currently exist. As we have said, the administration
of justice cannot countenance a recurrence of Askov. This transitional
exceptional circumstance recognizes that change takes time, and institutional
delay — even if it is significant — will not automatically result in a stay of
proceedings.
[98]
On the other hand, the s. 11 (b) rights of
all accused persons cannot be held in abeyance while the system works to
respond to this new framework. Section 11 (b) breaches will still be
found and stays of proceedings will still be entered for cases currently in the
system. For example, if the delay in a simple case vastly exceeds the ceiling
because of repeated mistakes or missteps by the Crown, the delay might be
unreasonable even though the parties were operating under the previous
framework. The analysis must always be contextual. We rely on the good sense of
trial judges to determine the reasonableness of the delay in the circumstances
of each case.
[99]
The second qualification applies to cases
currently in the system in which the total delay (minus defence delay) falls below
the ceiling. For these cases, the two criteria — defence initiative and whether
the time the case has taken markedly exceeds what was reasonably required —
must also be applied contextually, sensitive to the parties’ reliance on the
previous state of the law. Specifically, the defence need not demonstrate
having taken initiative to expedite matters for the period of delay preceding
this decision. Since defence initiative was not expressly required by the Morin
framework, it would be unfair to require it for the period of time before
the release of this decision. However, in close cases, any defence initiative
during that time would assist the defence in showing that the delay markedly
exceeds what was reasonably required. The trial judge must also still consider
action or inaction by the accused that may be inconsistent with a desire for a
timely trial (Morin, at p. 802).
[100]
Further, if the delay was occasioned by an
institutional delay that was reasonably acceptable in the relevant jurisdiction
under the Morin framework before this decision was released, that
institutional delay will be a component of the reasonable time requirements of
the case for cases currently in the system.
[101]
We note that given the level of institutional
delay tolerated under the previous approach, a stay of proceedings below the
ceiling will be even more difficult to obtain for cases currently in the
system. We also emphasize that for cases in which the charge is brought shortly
after the release of this decision, the reasonable time requirements of the
case must reflect this high level of tolerance for institutional delay in
particular localities.
[102]
Ultimately, for most cases that are already in
the system, the release of this decision should not automatically transform
what would previously have been considered a reasonable delay into an
unreasonable one. Change takes time. In his dissenting opinion in Mills v.
The Queen, [1986] 1 S.C.R. 863, Lamer J. (as he then was) was alive to this
concern and his comments are apposite here:
This
case is the first to have presented this Court with the opportunity of
establishing appropriate guidelines for the application of s. 11 (b). The
full scope of the section, and the nature of the obligation it has imposed upon
the government and the courts has remained uncertain for the period prior to
the rendering of this judgment.
Given
this uncertainty and the terminative nature of the remedy for a violation of
the section, i.e., a stay of proceedings, I am of the view that a transitional
approach is appropriate, and indeed necessary, to enable the courts and the
governments to properly discharge their burden under s. 11 (b). This
is not to say that different criteria ought to apply during the transitional
period, that is, the period prior to the rendering of this judgment, but rather
that the behaviour of the accused and the authorities must be evaluated in its
proper context. In other words, it would be inaccurate to give effect to
behaviour which occurred prior to this judgment against a standard the
parameters of which were unknown to all. [Emphasis added; p. 948.]
[103]
We echo Lamer J.’s remarks. For cases already in
the system, the presumptive ceiling still applies; however, “the behaviour of
the accused and the authorities” — which is an important consideration in the
new framework — “must be evaluated in its proper context” (Mills, at p.
948). The reasonableness of a period of time to prosecute a case takes its
colour from the surrounding circumstances. Reliance on the law as it then stood
is one such circumstance.
[104]
We disagree with Cromwell J. that our
framework’s allowance for present realities somehow creates a Charter amnesty.
For cases currently in the system, the s. 11 (b) right will receive no
less protection than it does now. The point is that, on an ongoing basis, our
framework has the potential to effect positive change within the justice
system, rather than succumb to the culture of complacency we have described.
G.
Concluding Comments on the New Framework
[105]
The new framework for s. 11 (b) can be
summarized as follows:
•
There is a ceiling beyond which delay becomes
presumptively unreasonable. The presumptive ceiling is 18 months for cases
tried in the provincial court, and 30 months for cases in the superior court
(or cases tried in the provincial court after a preliminary inquiry). Defence
delay does not count towards the presumptive ceiling.
•
Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of
unreasonableness on the basis of exceptional circumstances. Exceptional
circumstances lie outside the Crown’s control in that (1) they are reasonably
unforeseen or reasonably unavoidable, and (2) they cannot reasonably be
remedied. If the exceptional circumstance relates to a discrete event, the
delay reasonably attributable to that event is subtracted. If the exceptional
circumstance arises from the case’s complexity, the delay is reasonable.
•
Below the presumptive ceiling, in clear cases, the defence may show that the delay is
unreasonable. To do so, the defence must establish two things: (1) it took
meaningful steps that demonstrate a sustained effort to expedite the
proceedings; and (2) the case took markedly longer than it reasonably should
have.
•
For cases currently in the system, the framework must be applied flexibly and contextually, with due
sensitivity to the parties’ reliance on the previous state of the law.
[106]
As part of the process of developing this
framework, we conducted a qualitative review of nearly every reported s.
11 (b) appellate decision from the past 10 years, and many decisions from
trial courts. These cases assisted in developing the definition of exceptional
circumstances, as they highlighted the types of circumstances that judges have
found to justify prolonged delays. By reading these cases with the new
framework in mind, we were able to get a rough sense of how the new framework
would have played out in some past cases. Indeed, we note that in the seminal
case of Askov, the delay was in the range of 30 months, as it was in Godin
some 19 years later, and in both cases, this Court found the delays to be
unreasonable.
[107]
It is also clear from this case law review that
the ceiling will not permit the parties or the courts to operate business as
usual. The ceiling is designed to encourage conduct and the allocation of
resources that promote timely trials. The jurisprudence from the past decade
demonstrates that the current approach to s. 11 (b) does not encourage
good behaviour. Finger pointing is more common than problem solving. This body
of decisions makes it clear that the incentives inherent in the status quo fall
short in the ways we have described.
[108]
We acknowledge that this new framework
represents a significant shift from past practice. First, its standpoint is
prospective. Participants in the criminal justice system will know, in
advance, the bounds of reasonableness so proactive measures can be taken to
remedy any delay. And the public will more clearly understand what it means to
hold a trial within a reasonable time. Enhanced clarity and predictability
befits a Charter right of such fundamental importance to our criminal
justice system.
[109]
Second, the new framework resolves the
difficulties surrounding the concept of prejudice. Instead of being an express
analytical factor, the concept of prejudice underpins the entire framework. Prejudice
is accounted for in the creation of the ceiling. It also has a strong
relationship with defence initiative, in that we can expect accused persons who
are truly prejudiced to be proactive in moving the matter along.
[110]
Prejudice has been one of the most fraught areas
of s. 11 (b) jurisprudence for over two decades. Understanding prejudice
as informing the setting of the ceiling, rather than treating prejudice as an
express analytical factor, also better recognizes that, as we have said,
prolonged delays cause prejudice to not just specific accused persons, but also
victims, witnesses, and the system of justice as a whole.
[111]
Third, the new framework reduces, although does
not eliminate, the need to engage in complicated micro-counting. While judges
will still have to determine defence delay, the inquiry beneath the ceiling
into whether the case took markedly longer than it reasonably should have
replaces the micro-counting process with a global assessment. This inquiry need
only arise if the accused has taken meaningful and sustained steps to expedite
matters. And above the ceiling, a s. 11 (b) analysis is triggered only
where the Crown seeks to rely on exceptional circumstances. A framework that is
simpler to apply is itself of value: “. . . we must remind ourselves that the
best test will be relatively easy to apply; otherwise, stay applications
themselves will contribute to the already heavy load on trial judges and
compound the problem of delay” (Morin, per McLachlin J., at p. 810).
[112]
In addition, the new framework will help
facilitate a much-needed shift in culture. In creating incentives for both
sides, it seeks to enhance accountability by fostering proactive, preventative
problem solving. From the Crown’s perspective, the framework clarifies the
content of the Crown’s ever-present constitutional obligation to bring the
accused to trial within a reasonable time. Above the ceiling, the Crown will
only be able to discharge its burden if it can show that it should not be held
accountable for the circumstances which caused the ceiling to be breached
because they were genuinely outside its control. Crown counsel will be
motivated to act proactively throughout the proceedings to preserve its ability
to justify a delay that exceeds the ceiling, should the need arise. Below the
ceiling, a diligent, proactive Crown will be a strong indication that the case
did not take markedly longer than reasonably necessary.
[113]
The new framework also encourages the defence to
be part of the solution. If an accused brings a s. 11 (b) application
when the total delay (minus defence delay and delay attributable to exceptional
circumstances that are discrete in nature) falls below the ceiling, the defence
must demonstrate that it took meaningful and sustained steps to expedite the
proceedings as a prerequisite to a stay. Further, the deduction of defence
delay from total delay as a starting point in the analysis clearly indicates
that the defence cannot benefit from its own delay-causing action or inaction.
[114]
The new framework makes courts more accountable,
too. Absent exceptional circumstances, the ceiling limits the extent to which
judges can tolerate delays before a stay must be imposed. Indeed, courts are important
players in changing courtroom culture. Many courts have developed robust case
management and trial scheduling processes, focussing attention on possible
sources of delay (such as pre-trial applications or unrealistic estimates of
trial length) and thereby seeking to avoid or minimize unnecessary delay. Some
courts, however, have not.
[115]
As we have said, this Court also has a role to
play. On many occasions, this Court has established detailed guidelines and
minimum requirements to give meaningful content to constitutional rights in the
criminal law context (see, e.g., R. v. Fearon, 2014 SCC 77, [2014] 3
S.C.R. 621, at para. 83; Lavallee, Rackel & Heintz v. Canada
(Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 49; Canada
(Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7,
[2015] 1 S.C.R. 401, at paras. 53-56). Section 11 (b) has received its
content in much the same way. Cromwell J.’s framework, like ours, and like Morin
and Askov, is entirely judicially created. And, like ours, and like Morin
and Askov, it relies heavily on numerical guidelines (with such
guidelines acting as guideposts, not absolute limitation periods). Our approach
is entirely consistent with the judicial role.
[116]
Ultimately, all participants in the justice
system must work in concert to achieve speedier trials. After all, everyone
stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar,
2007 ONCA 117, 84 O.R. (3d) 493:
The judicial system, like all other
public institutions, has limited resources at its disposal, as do the litigants
and legal aid. . . . It is in the interest of all constituencies — those
accused of crimes, the police, Crown counsel, defence counsel, and judges both
at trial and on appeal — to make the most of the limited resources at our
disposal. [para. 32]
[117]
Sharpe J.A.’s reference to finite resources is
an important point. We are aware that resource issues are rarely far below the
surface of most s. 11 (b) applications. By encouraging all justice system
participants to be more proactive, some resource issues will naturally be
resolved because parties will be encouraged to eliminate or avoid inefficient
practices. At the same time, the new framework implicates the sufficiency of
resources by reminding legislators and ministers that unreasonable delay in
bringing accused persons to trial is not merely contrary to the public
interest: it is constitutionally impermissible, and will be treated as such.
VI.
Application to This Case
[118]
Having established the new framework for s. 11 (b),
we now turn to the case before us.
[119]
The first step in determining whether Mr.
Jordan’s s. 11 (b) right was infringed is to determine the total delay
between the charges and the end of trial. In this case, the total delay was
49.5 months.
[120]
Turning to the first case-specific factor that
must be accounted for, the next step is to determine whether any of that delay
was waived or caused solely by the defence. We see no reason to interfere with
the trial judge’s finding that four months of this delay were waived by Mr.
Jordan when he changed counsel shortly before the trial was set to begin,
necessitating an adjournment.
[121]
The more difficult assessment is whether any of
the remaining delay was caused solely by the action or inaction of the defence.
The Crown argues that the trial judge erred by failing to attribute significant
periods of delay to the defence, and that the defence was equally culpable in
the delay in bringing this matter to trial. The Crown cited several examples:
the defence consented to numerous adjournments; defence counsel initially
suggested the four-day estimate for the preliminary inquiry; defence counsel’s
unavailability resulted in the preliminary inquiry not being completed as
scheduled in December 2010; defence counsel failed to respond to the Crown’s
offer in July 2011 of an earlier trial; and there was no evidence that defence
counsel would have been available for trial earlier than June 2012.
[122]
While these instances that the Crown points to
are symptomatic of the systemic complacency towards delay that we have
described, most of them are not attributable solely to the defence. The Crown
and defence both share responsibility for the preliminary inquiry
underestimation. Similarly, responsibility for the delay resulting from consent
adjournments and the defence’s failure to respond to the Crown’s offer of a
shorter trial time in July 2011 should not be borne solely by the defence. These
adjournments were part of the legitimate procedural requirements of the case,
and it does not appear from the record that any occurred when the Crown and
court were otherwise ready to proceed. Further, there was no evidence that, had
the defence responded to the Crown’s offer of an earlier trial, the Crown and
the court would have been able to accommodate an earlier date. Rather, the only
evidence before the trial judge was that the earliest available trial dates
were in September 2012.
[123]
The defence should, however, bear responsibility
for the delay resulting from the adjournment of the preliminary inquiry necessitated
by defence counsel’s unavailability for closing submissions on December 22,
2010, the last day scheduled for the preliminary inquiry. We would only
attribute one and a half months of that delay to the defence, however, given
the evidence that Crown counsel was unable to attend at the first available
continuation date for the preliminary inquiry of February 3, 2011.
[124]
In total then, four months of delay were waived
by the defence and one and a half months of delay were caused solely by the
defence. This leaves a remaining delay of 44 months, an amount that vastly
exceeds the presumptive ceiling of 30 months in the superior court. The burden
is therefore on the Crown to demonstrate that the delay is reasonable in light
of exceptional circumstances.
[125]
There is nothing in the record to indicate that
any discrete, exceptional circumstances arose. And although particularly
complex cases may present an exceptional circumstance, this is not one of those
cases. In terms of the legal issues, while Mr. Jordan was initially charged
along with nine other co-accused, this number quickly dropped as the case
progressed. At the time of trial, only one co-accused remained on the
indictment with Mr. Jordan. Further, none of the alleged offences involved
novel or complex points of law. Relatively few pre-trial applications were
scheduled. In short, the legal issues in Mr. Jordan’s case were not
particularly complex.
[126]
As for the evidence, it was substantial but it
was relatively straightforward. It consisted of surveillance evidence by police
officers, undercover buys by police officers, a small amount of expert evidence
regarding how dial-a-dope operations are conducted, and a search warrant for
Mr. Jordan’s apartment. There was nothing particularly complex about this evidence.
[127]
In the end, while the case against Mr. Jordan
may have been moderately complex given the amount of evidence and the number of
co-accused, it was not so exceptionally complex that it would justify a delay
of 44 months (excluding defence delay).
[128]
However, since Mr. Jordan’s charges were brought
prior to the release of this decision, we must also consider whether the
transitional exceptional circumstance justifies the delay. In our view, it does
not. We recognize that the Crown was operating without notice of this change in
the law within a jurisdiction with some systemic delay issues. But a total
delay of 44 months (excluding defence delay), of which the vast majority was
either Crown or institutional delay, in an ordinary dial-a-dope trafficking
prosecution is simply unreasonable regardless of the framework under which the
Crown was operating. Therefore, it cannot be said that the Crown’s reliance on
the previous state of the law was reasonable.
[129]
We note that a good portion of the delay
resulted from the inaccurate assessment of the time required for the
preliminary inquiry, and in particular, the Crown’s failure to communicate with
the parties with a view to tying down the evidence that it needed to call at
the preliminary inquiry. A similar problem occurred with the trial. While the
fault for the delay in bringing this matter to trial certainly did not lie
solely with Crown counsel, it is equally clear that the Crown prosecutors
assigned to the case did not have a solid plan for bringing the matter to trial
within a reasonable time. The Crown was aware of potential s. 11 (b)
issues as early as December 2010, yet it took few steps to expedite the matter.
Instead, the Crown was content to rely on an overly large estimate of trial
time without attempting to streamline the issues or consider severing the
co-accused from the indictment.
[130]
The Crown did make a good faith effort to bring
the matter to trial more quickly in light of the s. 11 (b) issue when
Crown counsel wrote to defence counsel in July 2011 with a revised estimate of
the length of the Crown’s case. But by this point, approximately 31 months had
already elapsed from the date of Mr. Jordan’s charges. This is a substantial
length of time to wait before making efforts to expedite the matter. At this
point, the scheduled trial was still more than a year away.
[131]
While the Crown did make some efforts to bring
the matter to trial more quickly, these efforts were too little and too late. The
previous state of the law cannot reasonably support the Crown’s conduct. And
the systemic delay problems that existed in the Surrey Provincial Court at the
time cannot justify the delay either. As discussed, much of the institutional
delay could have been avoided had the Crown proceeded on the basis of a more
reasonable plan.
[132]
To the extent that the trial judge held that
this delay was reasonable under the Morin framework, he erred. Citing
the Court of Appeal’s decision in R. v. Ghavami, 2010 BCCA 126, 253
C.C.C. (3d) 74, at para. 52, he incorrectly held that institutional delay is
entitled to less weight than delay within the Crown’s control. The parties
agree that this was in error.
[133]
It follows that the delay was unreasonable and
Mr. Jordan’s s. 11 (b) right was infringed.
VII. Conclusion
[134]
The right to a trial within a reasonable time
has aptly been described as “discipline for the justice system”, in that it may
cause “discomfort in the short term but [it will bring] achievement in the long
term” (Code, at pp. 133-34).
[135]
In this case, the system was undisciplined. It
failed. Mr. Jordan’s s. 11 (b) right was breached when it took 49.5
months to bring him to trial. All the parties were operating within the culture
of complacency towards delay that has pervaded the criminal justice system in
recent years. There is simply no reasonable explanation for why the matter took
as long as it did. The appeal must be allowed, the convictions set aside and a
stay of proceedings entered.
[136]
We agree with Cromwell J. that our differences
of opinion are indeed fundamental. In our view, given the considerable
doctrinal and practical problems confronting the Morin approach, further
minor refinements to the model are incapable of responding to the challenges
facing timely justice in this country.
[137]
Real change will require the efforts and
coordination of all participants in the criminal justice system.
[138]
For Crown counsel, this means making reasonable
and responsible decisions regarding who to prosecute and for what, delivering
on their disclosure obligations promptly with the cooperation of police,
creating plans for complex prosecutions, and using court time efficiently. It
may also require enhanced Crown discretion for resolving individual cases. For
defence counsel, this means actively advancing their clients’ right to a trial
within a reasonable time, collaborating with Crown counsel when appropriate
and, like Crown counsel, using court time efficiently. Both parties should
focus on making reasonable admissions, streamlining the evidence, and
anticipating issues that need to be resolved in advance.
[139]
For the courts, this means implementing more
efficient procedures, including scheduling practices. Trial courts may wish to
review their case management regimes to ensure that they provide the tools for
parties to collaborate and conduct cases efficiently. Trial judges should make
reasonable efforts to control and manage the conduct of trials. Appellate
courts must support these efforts by affording deference to case management
choices made by courts below. All courts, including this Court, must be mindful
of the impact of their decisions on the conduct of trials.
[140]
For provincial legislatures and Parliament, this
may mean taking a fresh look at rules, procedures, and other areas of the
criminal law to ensure that they are more conducive to timely justice and that
the criminal process focusses on what is truly necessary to a fair trial. Legal
Aid has a role to play in securing the participation of experienced defence
counsel, particularly for long, complex trials. And Parliament may wish to
consider the value of preliminary inquiries in light of expanded disclosure
obligations. Government will also need to consider whether the criminal justice
system (and any initiatives aimed at reducing delay) is adequately resourced.
[141]
Thus, broader structural and procedural changes,
in addition to day-to-day efforts, are required to maintain the public’s
confidence by delivering justice in a timely manner. Timely trials are
possible. More than that, they are constitutionally required.
The
reasons of McLachlin C.J. and Cromwell, Wagner and Gascon JJ. were delivered by
Cromwell J. —
I.
Introduction
A.
Overview
[142]
Every person charged with an offence in Canada
has a constitutional right to be tried within a reasonable time: Canadian
Charter of Rights and Freedoms, s. 11 (b). The right has
ancient origins and finds expression across legal systems. In the Great Charter
of 1215 (the Magna Carta) the King promised that “[t]o no one
will we . . . delay right or justice”: clause 40. The International Covenant
on Civil and Political Rights (1966), Can. T.S. 1976 No. 47, calls for
trial “without undue delay”: art. 14(3) (c). A right of this nature is also
found in the United States, New Zealand, Australia, India, South Africa, the
Caribbean, the United Kingdom, Ireland, and in the European Union, among others:
see Justice C. Hill and J. Tatum, “Re-Chartering an Old Course Rather than
Staying Anew in Remedying Unreasonable Delay under the Charter ” (paper
presented at the Crown Defence Conference in Winnipeg September 2012) (online),
at p. 59.
[143]
This Court over the last 30 years has developed
a sophisticated jurisprudence for dealing with allegations of s. 11 (b)
breaches: see Mills v. The Queen, [1986] 1 S.C.R. 863; R. v.
Rahey, [1987] 1 S.C.R. 588; R. v. Conway, [1989] 1
S.C.R. 1659; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Askov,
[1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; and
R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3. The framework
developed in this jurisprudence, which is most fully set out in Morin,
identifies the many considerations that should be taken into account in
order to determine whether the time to try a particular criminal case is
reasonable.
[144]
Determining reasonableness requires a court to
balance a number of factors, including the length of the delay, waiver of any
time periods by the accused, the reasons for the delay, including the time
requirements for the case, the actions of the parties, limitations on
institutional resources, and prejudice to the person charged. It is necessary
to consider these factors on a case-by-case basis: the answer to the question
of whether an accused is tried within a reasonable time is inherently
case-specific.
[145]
There is much wisdom, based on accumulated
experience, in the Court’s jurisprudence about unreasonable delay. But the
Court has made adjustments over time and has been clear that further
adjustments will likely need to be made in the future. As Sopinka J. wrote in Morin,
“Embarking as we did on uncharted waters it is not surprising that the
course we steered has required, and may require in the future, some alteration
in its direction to accord with experience”: p. 784. To be sure, some issues
that need clarification have arisen in the case law and this appeal provides an
opportunity to provide such clarification. But the orientation of our
jurisprudence to case-specific determinations of reasonableness is sound. With
modest adjustments to make the analysis more straightforward and with some
additional clarification, that approach will continue to ensure that the
constitutional right of accused persons to be tried in a reasonable time is
defined and applied in a way that appropriately balances the many relevant
considerations.
[146]
My reasons on this appeal and those of my
colleagues, Justices Moldaver, Karakatsanis and Brown, present contrasting
visions of how our s. 11 (b) jurisprudence should develop.
[147]
My colleagues would define reasonableness by
assigning a number of months of delay — “ceiling[s]” (para. 5) — that will be
taken to be reasonable unless the accused establishes not only that the case
took markedly longer that it reasonably should have, but also that he or she
took meaningful steps that demonstrate a sustained effort to expedite the
proceedings. As I see it, this is not an appropriate approach to interpreting
and applying the s. 11 (b) right for several reasons. First,
reasonableness cannot be captured by a number; the ceilings substitute a right
for “trial under the ceiling[s]” (para. 74) for the constitutional right to be
tried within a reasonable time. Second, creating these types of ceilings is a
task better left to legislation. Third, the ceilings are not supported by the
record or by my colleagues’ analysis of the last 10 years of s. 11 (b)
jurisprudence and have not been the subject of adversarial debate. Fourth,
there is a serious risk that the introduction of these ceilings will put
thousands of cases at risk of being judicially stayed. Fifth, the ceilings are
unlikely to achieve the simplicity that is claimed for them. Finally, setting
aside 30 years of jurisprudence and striking out in this new direction is
unnecessary. My colleagues easily conclude that our existing jurisprudence
supplies a clear answer to this appeal: paras. 125 and 128. I agree with them
that it does: the appeal must be allowed and a stay of proceedings entered.
[148]
In contrast, my view is that a reasonable time
for trial under s. 11 (b) cannot and should not be defined by numerical
ceilings. The accumulated wisdom of the past 30 years of jurisprudence,
modestly clarified, provides a workable framework to determine whether the
right to be tried in a reasonable time has been breached in a particular case.
B.
The Nature of the Section 11 (b) Right
[149]
The right to be tried within a reasonable time
is easy to state and understand: people charged with offences should be tried
within a reasonable time. Determining whether the right has been breached in a
specific case, however, may be far from straightforward. The right is by its
very nature fact-sensitive and case-specific. There are several reasons for
this.
[150]
First, the term “delay” is not entirely apt.
While delay has a pejorative connotation, delay, in the sense of the passage of
time, is inherent in any legal proceeding. In fact, some delay may be
desirable. As stated by Lamer J., dissenting but not on this point, with
Dickson C.J. concurring, undue haste itself can make a trial unfair: see Mills,
at p. 941. Therefore, delay only becomes problematic when it is
unreasonable.
[151]
Second, unreasonableness is not conducive to
being captured by a set of rules: a reasonable time for the disposition of one
case may be entirely unreasonable for another. Reasonableness is an inherently
contextual concept, the application of which depends on the particular
circumstances of each case. This makes it difficult and in fact unwise to try
to establish the reasonable time requirements of a case by a numerical
guideline. Inevitably, the ceiling will be too high for some cases and too low
for others. More fundamentally, a fixed guideline is inconsistent with the notion
of reasonableness in the context of the infinitely varied situations that arise
in real cases.
[152]
Third, the Charter protects only against
state action. Even if a case took too long to be dealt with, there will only be
a breach of the right if that unreasonable delay counts against the state. And
so it follows that the focus is not on unreasonable delay in general, but on
unreasonable delay that properly counts against the state. We must therefore
attribute responsibility for the delay that has occurred and only factor in the
delay which can fairly be counted against the state in deciding whether the Charter
right has been infringed.
[153]
Finally, s. 11(b) implicates several
distinct interests, both individual and societal. Excessive delay implicates
the liberty, security, and fair trial interests of persons charged, as well as
society’s interest in the prompt disposition of criminal matters and in having
criminal matters determined on their merits: Morin, at p. 786.
Historically, the liberty interest was the focus: Mills, at p.
918, per Lamer J.; Rahey, at p.
642, per La Forest J., concurring.
[154]
More recently, the
“overlong subjection to the vexations and vicissitudes of a pending criminal
accusation” — the stigmatization, loss of privacy, stress and anxiety of those
awaiting trial — has been recognized as implicating the security of the person
charged: Rahey, at p. 605, per Lamer J., quoting A. G. Amsterdam,
“Speedy Criminal Trial: Rights and Remedies” (1975), 27 Stan. L. Rev. 525,
at p. 533; see also Mills, at pp. 919-20. As Cory J. for the majority
put it in Askov, at p. 1219:
There could be no greater frustration imaginable for
innocent persons charged with an offence than to be denied the opportunity of
demonstrating their innocence for an unconscionable time as a result of
unreasonable delays in their trial. The time awaiting trial
must be exquisite agony for accused persons and their immediate family.
[155]
A third interest protected by s. 11(b) is
the accused’s interest in mounting a full and fair defence. As Sopinka J. said
in Morin, the “right to a fair trial is protected [by s.
11(b)] by attempting to ensure that proceedings take place while
evidence is available and fresh”: p. 786. When delay is present, “justice may
be denied. Witnesses forget, witnesses disappear. The quality of evidence may
deteriorate”: p. 810, per McLachlin J. (as she then was), concurring. Delay
“can prejudice the ability of the defendant to lead evidence, cross-examine
witnesses, or otherwise to raise a defence”: Godin, at para. 30.
[156]
Finally, the right to be tried within a
reasonable time has a societal dimension: see e.g. Askov, at p. 1219,
per Cory J. But societal interests do not all point in the same direction. On one
hand, the wider community has an interest in “ensuring that those who
transgress the law are brought to trial and dealt with according to the law”
(pp. 1219-20) and in “preventing an accused from using the [s. 11(b)]
guarantee as a means of escaping trial”: p. 1227. On the other hand,
there is a broad societal interest in ensuring that individuals on trial are
“treated fairly and justly”: p. 1220. The community benefits “by the quick
resolution of the case either by reintegrating into society the accused found
to be innocent or if found guilty by dealing with the accused according to the
law” and witnesses and victims benefit from a prompt resolution of a criminal
matter: ibid.
[157]
While the right to be tried within a reasonable
time implicates all of these interests, it is important to recognize that it is
a free-standing right. As Martin J.A. put it in R. v. Beason (1983), 36
C.R. (3d) 73 (Ont. C.A.), at p. 96, cited with approval in Morin, at
p. 786: “Trials held within a reasonable time have an intrinsic value.” As
such, actual impairment of the
various interests protected by s. 11(b) “need not be proven by the
accused to render the section operative”: Conway, at p. 1694, per Lamer
J.; see also Mills, at p. 926, per Lamer J. The proper approach
is to “recognize that prejudice underlies the right, while recognizing at the
same time that actual proven prejudice need not be, indeed, is not, relevant to
establishing a violation of s. 11(b)”: Mills, at p. 926, per Lamer
J.
[158]
To sum up, the right to be tried in a reasonable
time is multi-factored, fact-sensitive, and case-specific. Like other broadly
expressed constitutional guarantees, its application to specific cases is
unavoidably complex. Our experience to date suggests that the relevant factors
and general approach set out in Morin respond to these complexities.
However, experience also suggests that the way in which Morin has come
to be applied is unduly complicated and that aspects of the relevant factors
require clarification. This can be done without losing the case-specific focus
on whether a particular case has been or will be tried within a reasonable
time.
II.
The Analytical Framework
[159]
The purpose of carrying out the s. 11(b)
analysis is to decide whether the length of time to try the case which counts
against the state is “substantially longer than can be justified on any
acceptable basis”: Smith, at p. 1138. If so, the delay is unreasonable
and in breach of s. 11(b).
[160]
The Morin framework identifies and
describes the many factors that are relevant to whether a delay is reasonable
or unreasonable. But one of the limitations of the framework is that it
provides little assistance as to how these various factors are to be weighed in
order to reach a final conclusion. In order to simplify and clarify this
analysis, it will be helpful to regroup the Morin considerations under
four main analytical steps, which may be framed as questions to guide a court
when confronted with a s. 11(b) claim. Doing so will make what is being
considered and why more apparent, without losing the necessarily case-specific
focus of the reasonableness inquiry. The questions are:
1.
Is an unreasonable delay inquiry justified?
2.
What is a reasonable time for the disposition of
a case like this one?
3.
How much of the delay that actually occurred counts
against the state?
4.
Was the delay that counts against the state
unreasonable?
[161]
This framework, along with elaboration of the
relevant considerations, will clarify questions that have arisen in this case,
namely: whether different periods of delay receive different weighting in the
analysis; what is meant by “waiver” by the accused; and what is the role of
prejudice in the analysis.
[162]
I will now turn to a brief elaboration of each
of these four analytical steps.
A.
Is an Unreasonable Delay Inquiry Justified?
[163]
The accused must establish as a threshold matter
that there is a basis for the Charter inquiry. The court should look to
the overall period between the charge and the completion of the trial to
determine whether its length is such that it merits further inquiry. As stated
by McLachlin J. in her concurring opinion in Morin, this determination
can be made by referring to “‘norms’ representing the time reasonably taken to
bring the offence charged to the point of trial in all the circumstances”: p.
811. If there is no reasonable basis to think that the delay in question is
excessive, the accused’s s. 11 (b) claim fails and the inquiry stops at
this stage.
B.
What Is a Reasonable Time for the Disposition of
a Case Like This One?
[164]
This second analytical step is to determine on
an objective basis what would be a reasonable time for the trial of a case like
the one under review. The objective standard of reasonableness has two
components: institutional delay and inherent time requirements of the case. The
period of institutional delay is the period that is reasonably required for the
court to be ready to hear the case (including interlocutory motions) once the
parties are ready to proceed. The reasonable inherent time requirements of the
case represent the period of time that is reasonably required for the parties
to be ready to proceed and to conclude the trial for a case similar in nature
to the one before the court.
[165]
Both of these periods of time are to be
determined objectively. The acceptable period of institutional delay is
determined in accordance with the administrative guidelines for institutional
delay set out by this Court in Morin: eight to ten months before the
provincial courts and six to eight months before the superior courts (see
Morin, at pp. 798-99). The inherent time requirements of a case,
on the other hand, are to be determined on the basis of judicial experience,
supplemented by submissions of counsel and evidence in relation to the
reasonable time requirements of a case of a similar nature to the one before
the court. As I will describe below, these two elements must be distinguished
in the s. 11(b) analysis.
(1)
Institutional Delay
[166]
Institutional delay is the period of time that
results from the inadequacy of institutional resources. The period of
institutional delay “starts to run when the parties are ready for trial but the
system cannot accommodate them”: Morin, at pp. 794-95. At this
stage of the objective analysis, the court will determine an acceptable period
of time for the court to be available to hear the case once the parties are
ready to proceed.
(a)
The Morin Administrative Guidelines Are
Appropriate for Determining Institutional Delay
[167]
As stated in Morin, “institutional
delay is the most common source of delay and the most difficult to reconcile
with the dictates of s. 11 (b) of the Charter ”: p. 794. The
difficulty arises because we do not live in a “Utopia” in which there is always
fully adequate funding, personnel, and facilities in order to administer
criminal matters: p. 795. The courts must account for both the fact that the
state does not have unlimited funds to attribute to the administration of the
criminal justice system and the fact that an accused has a fundamental Charter
right to be tried within a reasonable time: ibid.
[168]
The period of institutional delay is generally
not case-specific, unlike the inherent time requirements of a particular case.
Institutional delay is therefore more amenable to generalization based on
evidence than is the element of the reasonable inherent time requirements of
particular types of cases. Moreover, institutional delay is largely the result
of government choices about how to allocate resources. Accordingly, the courts
“cannot simply accede to the government’s allocation of resources and tailor
the period of permissible delay accordingly”: Morin, at p. 795.
[169]
The Morin administrative guidelines,
namely eight to ten months for trials in provincial courts and six to eight
months for trials before the superior courts, were established on the basis of
extensive statistical and expert evidence. There is no basis in the record in
this case to revise them and I would therefore confirm these guidelines as
appropriate for determining reasonable institutional delay.
(b)
Determining Institutional Delay
[170]
I would add two comments about determining
institutional delay using the Morin administrative guidelines.
[171]
First, in determining where a particular case
should fit within the range established by the Morin guidelines, the
court should consider whether the accused is in remand custody pending trial or
subject to stringent bail conditions in identifying a reasonable period of
institutional delay for a particular type of case. The period of reasonable
institutional delay should generally be at the lower end of the range in these
circumstances because these types of cases should receive higher priority by
the courts. This period might even be shortened below the range described in
the guidelines. As Sopinka J. put it Morin:
If an accused is in custody or, while
not in custody, subject to restrictive bail terms or conditions or otherwise
experiences substantial prejudice, the period of acceptable institutional delay
may be shortened to reflect the court’s concern. [p. 798]
[172]
Second, the guidelines should not be understood
as precluding allowance for any “sudden and temporary strain on resources” that
causes a temporary congestion in the courts: Morin, at p. 797. As
I discuss at the final step of the analysis, even a properly resourced system
will occasionally buckle under an unusually heavy onslaught of work.
(2)
The Inherent Time Requirements of the Case
(a)
Introduction
[173]
The inherent time requirements of a case include
the time periods that are reasonably necessary to conclude the proceedings for
a case similar in nature to the one before the court. In Morin, Sopinka
J. described some of the inherent time requirements of the case as including
the time required “in processing the charge, retention of counsel, applications
for bail and other pre-trial procedures” along with “police and administration
paperwork, disclosure, etc.”: pp. 791-92. Separate consideration of these
inherent time requirements is essential given the almost infinitely variable
circumstances of particular cases.
[174]
As Lamer J. described in Mills, the
inquiry into the inherent time requirements of a case will necessarily require
judges to “rely heavily upon their practical experience and good sense”: p.
932. Judges should “undertake an objective assessment of the delay which may be
required in the circumstances of the case”: ibid. This inquiry is
“wholly objective” (p. 931):
. . . the court must fix an objective
and realistic time period for the preparation of the type of case which is
at bar. It must determine the period which would normally be required,
taking into account the number of charges, the number of accused, the
complexity and volume and similar objective elements, for the preparation and
completion of the case . . . . [Emphasis added; p. 932.]
In the end, we must rely
on the good sense and experience of trial judges to determine what would
constitute a reasonable period of time required for a particular type of case.
[175]
The inherent time requirements of a case are to
be determined objectively on a case-by-case basis.
(b)
Determining the Inherent Time Requirements
[176]
The elements to be considered are the amounts of
time reasonably required in processing the charge, retaining counsel, applying
for bail, completing police and administration paperwork, making disclosure,
dealing with pre-trial applications, preparing for and arguing the preliminary
inquiry and/or the trial, and trying a case similar in the nature to the one
before the court. Included are such things as the time reasonably required to
reschedule after a mistrial, the time to resolve legal issues, the time to
convene a judicial pre-trial, and a reasonable time to try the case: see e.g.
Hill and Tatum, at pp. 14-15.
[177]
If a case is more complex, the estimate of the
reasonable time period required to dispose of the case will be higher. Given
the type of case before the court, it may be expected that there will be more
pre-trial motions, or particular types of motions. Most s. 11(b)
applications are considered after the fact, and any incidental proceedings to a
trial could help guide this analysis. However, courts should avoid ex post
facto analysis focusing on whether certain motions in the case before them
were unreasonably or unnecessarily taken. The objective nature of this inquiry
involves an analysis of the type of case before the court, and all the motions
and other pre-trial procedures that could reasonably be expected in such a
case.
[178]
One example is a case involving a large amount
of disclosure, where it could reasonably be expected that such disclosure would
lengthen the inherent time requirements to try the case. However, disclosure
may be a major factor contributing to delay and should be approached on the
basis that the Crown has a duty to make disclosure fully, but also promptly.
And defence counsel must not engage in unnecessary fishing expeditions. The
reasonable estimation of the objective inherent time requirements of a case
must assume both prompt disclosure and the absence of unnecessary fishing
expeditions.
[179]
Also included in the inherent time requirements
of a case is the time required for counsel, both Crown and defence, to be
available and to prepare the case: see Morin, at p. 791. In Morin,
Sopinka J. noted that the courts must take account of the fact that “counsel
for the prosecution and the defence cannot be expected to devote their time
exclusively to one case”: p. 792. Or, as I put it in Godin, s. 11(b)
does not require counsel to “hold themselves in a state of perpetual
availability”: para. 23. The court should estimate the reasonable amount of
time required for Crown and defence counsel to prepare and to make themselves
available in the type of case before them. This estimation is objective, and
does not include an analysis of the record which may demonstrate that counsel
was available before or after this estimated time period.
[180]
Morin provides an
example of how this may be done. Sopinka J. specifically found that “[a]n
additional period for inherent time requirements must be allowed” for the
post-preliminary inquiry “second stage”: p. 793. He further inferred,
absent concrete evidence to the contrary, that counsel would have required 2
months to make themselves prepared and available for trial and for the matter
to be heard, leaving the other 12 months to institutional delay: pp. 804-6.
Similarly, in R. v. Sharma, [1992] 1 S.C.R. 814, at pp. 825-26,
Sopinka J. estimated 3 months of inherent time requirements in the 12-month
period from the set date appearance to the trial date.
[181]
Finally, in estimating a reasonable time period
for the inherent time requirements of a case, the court should also take into
account the liberty interests of the accused. If an accused is in custody or
under stringent conditions of release, such as house arrest, counsel and the
court system should accord his or her case priority over those of accused
persons subject to less onerous conditions pending trial.
(c)
Do the Periods of Institutional Delay and Inherent
Time Requirements Overlap?
[182]
The question has arisen of whether the periods
of institutional delay (i.e. the time for the court to be ready to hear the
matter) and inherent delay (i.e. the time reasonably required for the parties
to be ready to proceed and to conclude the trial for a case similar in nature
to the one before the court) overlap. On occasion, the elements of
institutional and inherent requirements have been intermingled in the
application of the s. 11(b) framework such as in considering periods of
time during which both counsel and the court are unavailable: see e.g. C. Ruby,
“Trial Within a Reasonable Time under Section 11(b): the Ontario Court of
Appeal Disconnects from the Supreme Court” (2013), 2 C.R. (7th) 91, at p. 94,
citing Morin, at p. 793. The short answer to this question of
overlap, however, is that, on the objective determination of how much time the
case should reasonably take, the two periods are distinct.
[183]
The reasonable inherent time requirements are
concerned with identifying a reasonable period to get a case similar in nature
to the one before the court ready for trial and to complete the trial. The
inherent time requirements are not determined, for instance, with reference to
the actual availability of particular counsel and court, but rather they are
determined by an objective estimation. The other element, the acceptable period
of institutional delay, is the amount of time reasonably required for the court
to be ready to hear the case once the parties are ready to proceed. This is
expressed with reference to the Morin guidelines. These guidelines do
not relate to inherent time requirements; they reflect only the acceptable
period of institutional delay.
(3)
Conclusion on Objectively Reasonable Time
Requirements
[184]
To sum up, in assessing a claim under s. 11(b),
the courts must first determine the reasonable time requirements, objectively
viewed, for the type of case before them. Simply put, the courts must determine
how long the case should reasonably take (or have taken). This consists, first,
of the length of time required for that type of case to be prepared, heard, and
decided (i.e. the case’s inherent time requirements). The second element is the
additional time required for the court to be available to hear the parties
beyond the point at which they should be prepared to proceed (i.e. the period
of institutional delay). This period of institutional delay is assessed by
applying the administrative guidelines developed in Askov and Morin:
eight to ten months in provincial court and six to eight months in superior
court. These guidelines set some rough limits on the point at which inadequacy
of state resources will be accepted as an excuse for excessive delay.
C.
How Much of the Delay That Actually Occurred
Counts Against the State?
[185]
Having addressed the objective elements of the
analysis — the reasonable institutional delay and the reasonable inherent time
requirements of the case — the judge moves on to compare those objectively
reasonable time periods against the time actually taken in the case before the
court, to determine whether the overall delay is reasonable. Delay in excess of
the objectively required time may be reasonable if it is not attributable to
the state. As mentioned at the outset, s. 11(b) protects only against
unreasonable delay attributable to the state. The period fairly attributable to
the state excludes any time period fairly attributable to the accused —
including “waiver” — and any extraordinary and unavoidable delays that should
not be counted against the state. The main task at this step of the analysis is
to identify any portion of the actual elapsed time that should not count
against the state.
(1)
Delay Attributable to the Accused
[186]
Delay attributable to the accused includes any
period “waived” by the accused, and other delays attributable to the accused.
(a)
Waiver
[187]
The concept of “waiver” by the accused in the s.
11(b) context has given rise to some confusion and this case provides an
opportunity to bring further clarity to that issue.
[188]
First, the language of “waiver” in this context
may be misleading. As stated by this Court in Conway, when the
courts speak of “waiver” in the context of s. 11(b), “it is not the
right itself which is being waived but merely the inclusion of specific periods
in the overall assessment of reasonableness”: p. 1686. This means that periods
of time to which the accused has or is deemed to have agreed will not count
towards any determination of unreasonable delay.
[189]
Second, there is admittedly some lack of clarity
in our jurisprudence as to whether the accused’s consent to an adjournment
sought by the Crown constitutes “waiver” of the resulting delay. In Smith,
this Court created a rebuttable inference of waiver if defence consents to
a future trial date. This proposition was qualified, however, by the point that
“inaction or acquiescence on the part of the accused, short of waiver”, does
not result in a forfeiture of an accused’s s. 11(b) rights: Smith,
at p. 1136. In Morin, Sopinka J. explained that
the accused’s consent to a trial date “can give rise to an inference of
waiver”, but this is not the case “if consent to a date amounts to mere
acquiescence in the inevitable”: p. 790. This Court, albeit in very
short decisions, upheld this approach in R. v. Brassard, [1993] 4
S.C.R. 287, at p. 287, and R. v. Nuosci, [1993] 4 S.C.R. 283, at
p. 284, stating that consent to a future date will be
characterized as waiver in the absence of evidence that it is acquiescence.
[190]
A rebuttable inference of waiver from the
accused’s consent to an adjournment does not sit well with the settled law that
waiver must be clear, unequivocal and must be established by the Crown: see
e.g. Askov, at p. 1232. As noted in Morin, the
waiver must be done “with full knowledge of the rights the procedure was
enacted to protect and of the effect that waiver will have on those rights”,
and such a test is “stringent”: p. 790.
[191]
I conclude that, when the accused consents to a
date for trial offered by the court or to an adjournment sought by the Crown,
that consent, without more, does not amount to waiver. The onus is on the Crown
to demonstrate that this period is waived, that is, that the accused’s conduct
reveals something more than “mere acquiescence in the inevitable” and that it
meets the high bar of being clear, unequivocal, and informed acceptance that
the period of time will not count against the state.
(b)
Other Delay Attributable to the Accused
[192]
All steps that are reasonably necessary to make
full answer and defence are properly part of the inherent time requirements of
the case and do not count against either the Crown or the accused. However,
delay resulting from unreasonable actions solely attributable to the accused
must be subtracted from the period for which the state is responsible.
[193]
Unreasonable actions by the accused may take
diverse forms, such as last-minute changes in counsel or adjournments flowing
from a lack of diligence (e.g. failure to pursue or review disclosure in a
timely way; pursuit of unnecessary information; failure to attend court
appearances or to give timely notice of intended Charter applications,
particularly during case scheduling; unreasonable rejection of earlier dates
for preliminary hearing, trial or other court appearances (see Hill and Tatum,
at pp. 17-18); and a lack of sufficient effort to accommodate dates available
to the court and the prosecution). It is obvious that delays caused by attempts
to obstruct the course of the trial, that amount to “deliberate and calculated
tactic[s] employed to delay the trial”, or other vexatious or bad faith conduct
by the accused, cannot count against the state: Askov, at p.
1228.
[194]
The question of whether the actions of the
accused were unreasonable must be viewed through the lens of reasonable conduct
of counsel and the accused at the time the judgments had to be made, not with
the benefit of hindsight. The accused must not be penalized for taking all
reasonable steps to make full answer and defence even if, with the benefit of
hindsight, they were not particularly fruitful.
(2)
Extraordinary and Unavoidable Delays That Should
Not Count Against the State
[195]
It is also necessary to subtract from the actual
delay any periods that, although not fairly attributable to the defence, are
nonetheless not fairly counted against the state. Such time periods could
include unavoidable delays due to inclement weather or illness of a trial
participant.
D.
Was the Delay That Counts Against the State
Unreasonable?
[196]
At this point in the analysis, the judge has
determined the reasonable time a case ought to have taken, and the period of
time that fairly counts against the state that it actually took. The next and
final step is to determine whether this actual period of time exceeds the
reasonable time by more than can be justified on any acceptable basis. This
approach is a slight reorientation of the Morin framework because the
focus is more explicitly on the period of delay which exceeds what would have
been reasonable. But there is no change in principle.
(1)
Can the Delay Beyond What Would Have Been
Reasonable Be Justified?
[197]
Determining whether the actual delay was longer
than what would have been reasonable is a simple matter of arithmetic. However,
qualifying the extent of that excess delay as justified or not requires
evaluation. As stated in Morin, at p. 787: “The general approach to a
determination as to whether the right has been denied is not by the application
of a mathematical or administrative formula” but rather by judicial
determination.
[198]
Where the actual time exceeds what would have
been reasonable for a case of that nature, the result will be a finding of
unreasonable delay unless the Crown can show that the delay was justified
having regard to the length of the excess delay balanced against certain other
factors described below. The point at which the amount of time beyond what
would have been a reasonable delay becomes unreasonable cannot be described
with precision. We can say, however, that where the delay exceeds what would
have been reasonable, justification is required and, as the length of the
excess delay increases, justification will be more difficult. Even substantial
excess delay may be justified and therefore reasonable where, for example, there
is a particularly strong societal interest in the prosecution proceeding on its
merits, or where the delay results from temporary and extraordinary pressures
on counsel or the court system. However, it does not follow that in these
conditions the excess period is invariably justified. As I will discuss, given
proof of actual prejudice to the accused or of abusive or negligent conduct on
the part of the Crown which contributed to the delay, justification may be
found to be lacking.
[199]
The focus must remain on the fundamental
question at this point in the analysis: whether the amount of excess delay can
be “justified on any acceptable basis”: Smith, at p. 1138.
(2)
The Role of Prejudice in the Analysis
[200]
The role of prejudice in the unreasonable delay
analysis has become unduly complicated. The jurisprudence has distinguished
between inferred and actual prejudice and, in some cases, it appears that it
has been almost impossible to succeed on an unreasonable delay claim without
proof of either type of prejudice.
[201]
I would clarify the role of prejudice in the
following ways.
[202]
First, I would affirm the statements in previous
cases to the effect that actual prejudice is not necessary to establish a
breach of s. 11(b): see e.g. Mills, at p. 926, per Lamer J.; Askov,
at p. 1232, per Cory J. The question is whether the delay is unreasonable, not
whether an unreasonable delay has, in addition to being unreasonable, caused
identifiable and actual prejudice.
[203]
Second, and as explained earlier, actual
prejudice to the liberty interests of the accused, notably being detained in
custody or subject to very restrictive bail conditions pending trial, is taken
into account in deciding what a reasonable time for trial would be. Prejudice
of this nature during the period of reasonable delay need not be considered
again in the final assessment of whether the delay is unreasonable.
[204]
Third, prejudice to an accused’s security and
fair trial interests in the general sense — such as stress and stigma or the
erosion of evidence — is already considered in this revised framework. Defining
the reasonable time requirements of a case recognizes that delay beyond this
point will cause such stress and erosion of fair trial interests, regardless of
any evidence the Crown may bring to the contrary. Prejudice to these interests
during the period of reasonable delay need not be explicitly considered as a
separate factor in this final inquiry, and the court should not consider
evidence on any vague, general effect that the delay may have had on the
security or fair trial interests of the accused.
[205]
Fourth, specific examples of actual prejudice to
an accused’s security and fair trial rights, such as the loss of employment or
death of a witness (this, of course, is not an exhaustive list), are properly
considered at the final stage of the analysis.
[206]
Lastly, the absence of actual prejudice cannot
make reasonable what would otherwise be an unreasonable delay. Actual prejudice
need not be proved to find an infringement of s. 11(b) and its absence
cannot be used to excuse otherwise unreasonable delay. However, even if the
excess delay does not exceed the objectively determined reasonable time
requirements of a case of that nature, the accused still may be able to
demonstrate actual prejudice, thus making unreasonable (in the particular
circumstances of the case) a delay that might otherwise be objectively viewed
as reasonable.
(3)
Extraordinary Reasons for the Delay
[207]
Exceptional cases may arise which merit further
consideration of the various reasons for the delay at this final stage of the
inquiry.
[208]
In most cases, the elements of delay apart from
delay attributable to the accused will be given equal weight, contrary to the
approach in R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74, at para.
52. Specifically, institutional delay and other delay that is counted against
the state are generally given equal weight. Abusive or grossly negligent Crown
conduct causing delay counts more heavily against the state in determining
whether the excessive delay may be justified on any acceptable basis. Such
conduct not only undermines the accused’s rights, but is contrary to society’s
interest in an effective and fair justice system.
[209]
Conversely, institutional delay that is
attributable to exceptional and temporary conditions in the justice system may
be excused or given somewhat less weight against the state in the overall
balancing and may in some cases justify excusing what would otherwise be
excessive delay. This should generally be done, however, only if the state has
made reasonable efforts to alleviate those conditions: Askov, at p.
1242.
(4)
Are There Especially Strong Societal Interests
in the Prosecution on the Merits of the Case?
[210]
As discussed above, s. 11(b) encompasses
“a community or societal interest” to “see that the justice system works
fairly, efficiently and with reasonable dispatch”: Askov, at pp.
1219 and 1221. This societal interest supports prompt disposition of criminal
cases. However, there is also a societal interest in “ensuring that those who
transgress the law are brought to trial”: pp. 1219-20. Societal interests must
be considered “in conjunction” with the interests of the accused in the
interpretation of s. 11(b): p. 1222.
[211]
In McLachlin J.’s concurring opinion in Morin,
she held that the societal interests in bringing the accused to trial
should be considered in the determination of s. 11(b) claims: the “true
issue at stake” in a s. 11(b) analysis is the “determination of where
the line should be drawn between conflicting interests”, i.e. those of the
accused and those of society: p. 809. Whether a delay becomes unreasonable, on
the spectrum of delays apparent in criminal proceedings, must be determined by
an analysis in which the interests of society in bringing those accused of
crimes to trial are balanced against the rights of the person accused of a
crime: pp. 809-10. To this I would add the societal interest in prompt
disposition of criminal matters.
[212]
I agree with this balancing approach. Under the
revised framework I propose, the delay in excess of the reasonable time
requirements of the case and any actual prejudice arising from the overall
delay must be evaluated in light of societal interests: on one hand, fair
treatment and prompt trial of accused persons and, on the other,
determination of cases on their merits. As noted by Cory J. in Askov,
more serious offences will carry commensurately stronger societal demands
that the accused be brought to trial: p. 1226. These interests, however, are in
effect factored into the determination of what would be a reasonable time for
the disposition of a case like this one. But if there are exceptionally strong
societal interests in the prosecution of a case against an accused which substantially
outweigh the societal interest and the interest of the accused person in prompt
trials, these can serve as an “acceptable basis” upon which exceeding the
inherent and institutional requirements of a case can be justified.
E.
Summary of the Analytical Framework
[213]
If the accused first establishes a basis that
justifies a s. 11(b) inquiry, the court must then undertake an objective
inquiry to determine what would be the reasonable time requirements to dispose
of a case similar in nature to the one before the court (the inherent time
requirements) and how long it would reasonably take the court to hear it once
the parties are ready for hearing (the institutional delay).
[214]
Next, the court must consider how much of the
actual delay in the case counts against the state. This is done by subtracting
the periods attributable to the defence, including any waived time periods,
from the overall period of delay from charge to trial.
[215]
Finally, the court must consider whether and to
what extent the actual delay exceeds the reasonable time requirements of a
case, and whether this can be “justified on any acceptable basis”. If the
actual delay that counts against the state is longer than the reasonable time
requirements of a case, then the delay will generally be considered unreasonable.
The converse is also the case. However, there may be countervailing
considerations, such as the presence of actual prejudice, exceptionally strong
societal interests, or exceptional circumstances such as Crown misconduct or
exceptional and temporary conditions affecting the justice system. These may
either shorten or lengthen the period that would otherwise be unreasonable
delay.
[216]
This straightforward framework does not attempt
to gloss over the inherent complexity of determining what delays are
unreasonable. It merely clarifies where the various relevant considerations fit
into the analysis and how they relate to each other. It also simplifies the
analysis of prejudice and makes clear that, as a general rule, institutional
and Crown delay should be given equal weight. It retains the focus on the
circumstances of the particular case and builds on the accumulated experience
found in 30 years of this Court’s jurisprudence.
III.
Application
[217]
Although, as noted, this appeal would also be
allowed applying the existing Morin analysis, it will be useful by way
of illustration to analyze it under the modified framework that I have just
described.
A.
Facts
[218]
In 2008, the RCMP conducted a single,
straightforward undercover investigation into a “dial-a-dope” operation
involving the sale of drugs out of the Langley and Surrey areas of British
Columbia. Undercover police officers purchased cocaine six times over seven
months, calling a number associated with Mr. Jordan. On December 17, 2008, the
police executed a search warrant, seizing 42.3 grams of heroin and just under
1.5 kilograms of cocaine and crack cocaine from the apartment that
Mr. Jordan and his then-girlfriend, Ms. Kristina Gaudet, shared. On
December 17, 2008, the police arrested Mr. Jordan and Ms. Gaudet. Mr.
Jordan was charged with possession for the purposes of trafficking on December
18, and Ms. Gaudet was charged on February 20, 2009.
[219]
From December 18, 2008 to February 16, 2009, Mr.
Jordan was in custody. He was released on February 16, on strict conditions,
including house arrest. During this time, the Crown swore additional and
amended informations. Ultimately, 10 accused were charged. Mr. Jordan, as the
main target of the investigation and prosecution, faced six charges.
[220]
The accused elected to be tried in British
Columbia Supreme Court. Crown and defence counsel agreed upon a preliminary
hearing. For 24 months, the preliminary hearing process was held before the
Provincial Court; it took another 16 months to obtain a Supreme Court trial
date for the two remaining accused.
B.
Judicial History
(1)
British Columbia Supreme Court, 2012 BCSC 1735
[221]
Verhoeven J. of the British Columbia Supreme
Court dismissed Mr. Jordan’s s. 11(b) motion. He reached the
following conclusions with respect to the total time to the end of the trial:
•
Total length of delay: 49.5 months
•
Inherent requirements: 10.5 months
•
Crown delay: 2 months
•
Institutional delay: 32.5 months
•
Accused delay: 4 months
[222]
Some of the delay present in this case was due
to an underestimation of the time required to conduct the preliminary inquiry.
While the Crown argued that the subsequent delay should be attributable to the
defence, the trial judge ultimately attributed it as institutional delay,
citing a lack of evidence supporting the Crown’s claims.
[223]
The trial judge ultimately concluded that the
accused only waived four months of the delay, due to a last-minute change in
counsel. He rejected the Crown’s arguments that the delay before the superior
court was waived. The Crown relied upon a letter it sent to defence counsel,
asking whether the latter would be interested in an earlier trial date based
upon a three-week (as opposed to a six-week) trial estimation. Defence counsel
did not respond to this letter, and there was no evidence as to the reason
behind this. The trial judge found that this did not amount to clear and
unequivocal waiver.
[224]
The trial judge estimated eight months of
inherent time requirements before the provincial court (five months of intake
requirements, two months for scheduling and preparation, and one month for the
hearing and decision), and two and a half months before the superior court (two
months to accommodate counsel scheduling, two weeks for the trial itself).
[225]
The trial judge found that no time was
attributable to the accused, but that the Crown was responsible for two months
due to unavailability to continue the preliminary inquiry.
[226]
The trial judge concluded that there was 19
months of institutional delay before the provincial court, noting the evidence
supporting the shortage of institutional resources in those courts in British
Columbia. He further concluded that there was 13.5 months of institutional
delay before the superior court.
[227]
The trial judge then considered both actual
prejudice and inferred prejudice. He concluded that the accused was not greatly
prejudiced with respect to any of his liberty or fair trial interests but that
he did suffer some prejudice to his security interests in the form of stress
and worry. However, he held that the prior charges against Mr. Jordan
“substantially reduc[e] the degree of prejudice” that would otherwise be
assigned to Mr. Jordan’s security interests: para. 124 (CanLII).
[228]
The trial judge concluded that the delay present
in Mr. Jordan’s case “substantially exceeded” the guidelines: para. 138.
However, the delay was not unreasonable given the seriousness of the offences
charged, the lack of substantial prejudice against the accused, and the reduced
weight attributed to institutional delay.
(2)
British Columbia Court of Appeal, 2014 BCCA 241, 357 B.C.A.C. 137
[229]
The British Columbia Court of Appeal dismissed
Mr. Jordan’s appeal.
[230]
Justice Stromberg-Stein agreed with the facts
laid out by the trial judge. She also confirmed that the “application judge
identified and applied the correct legal authorities and principles”: para. 13.
[231]
On the first ground of appeal, Mr. Jordan argued
that the judge should have used the full 34.5 months of delay in his s. 11(b)
analysis, instead of the 17 months outside of the Morin guidelines.
However, the court concluded that the application judge correctly assessed the
delay period.
[232]
Next, Mr. Jordan argued that the trial judge
erred in attaching less weight to institutional delay. Justice Stromberg-Stein
found that the judge’s assessment of 34.5 months as institutional delay was not
based on a proper evidentiary record. However, this assessment was favourable
to Mr. Jordan, and she declined to interfere with Verhoeven J.’s weighing of
the institutional delay in comparison to other factors.
[233]
Finally, Mr. Jordan claimed that the trial judge
erred in his assessment of prejudice: by using the wrong quantum of delay and
by failing to make a meaningful finding of inferred prejudice. The application
judge found that Mr. Jordan experienced “some degree” of prejudice, but not a
“substantial” degree of prejudice: C.A. reasons, at para. 46. This finding of
fact is reviewable on a standard of palpable and overriding error. The Court of
Appeal found that the trial judge’s assessment did not rise to this degree. The
court affirmed the trial judge’s findings regarding actual prejudice, and held
that the judge was “alive to the possibility of inferring prejudice” and did,
in fact, infer some degree of prejudice from the delay: para. 51.
C.
Analysis
[234]
Applying the analytical framework from Morin
as elaborated and clarified above, I conclude that Mr. Jordan’s appeal should
be allowed and the charges against him stayed because his constitutional right
to be tried within a reasonable time was violated in this case. I will briefly
consider the four steps in the analytic framework.
(1)
Is an Unreasonable Delay Inquiry Justified?
[235]
I agree with the trial judge that the 49.5-month
delay from the charges to the end of the scheduled trial date is sufficient to
trigger an inquiry into whether the delay is unreasonable.
(2)
What Is a Reasonable Time for the Disposition of
a Case Like This One?
(a)
Inherent Time Requirements
[236]
The trial judge identified the periods of
inherent delay present in the case as being 10.5 months. While the trial judge
did not approach this on a purely objective basis, I nonetheless find no reason
to interfere with this assessment as representing the reasonable inherent time
requirements of a case of this nature, even treating this case as involving an
in-custody accused or an accused subject to very restrictive bail conditions.
(b)
Institutional Delay
[237]
This case proceeded through the Provincial Court
and the Supreme Court of British Columbia. Under the Morin administrative
guidelines, the reasonable institutional delays for both levels of court total
between 14 and 18 months. Although it is debatable whether accepting the upper
end of the range is appropriate in a case of this nature, for the purposes of
my analysis I will proceed on the basis that 18 months of institutional delay
would be reasonable.
[238]
It follows that a reasonable period for the
disposition of this case was 28.5 months.
(3)
How Much of the Delay That Actually Occurred
Counts Against the State?
[239]
We know that this case took 49.5 months in
total. To determine the amount of delay that counts against the state we must
subtract any period attributable to the defence and any period of unusual or
unforeseen delay not fairly counted against the Crown.
(a)
Delay Attributable to the Defence
[240]
The Crown’s main argument is that the trial
judge erred in categorizing so much of the delay as institutional. The Crown
makes multiple submissions regarding the categorization of delay between the
charge to the arraignment hearing, from the arraignment hearing to the
preliminary inquiry, of the adjournments of the preliminary inquiry, and in
setting the six-week trial. For many of these submissions, the Crown argues
that various periods should be considered “waiver” or conduct otherwise
attributable to the defence.
[241]
As stated above, for any period to be considered
waived by the defence, the defence must have so indicated in clear and
unequivocal terms. The trial judge noted that Mr. Jordan agreed that four
months of the delay was “waived” because it resulted from his last-minute
change in counsel. However, I see no reason to attribute any other period as
being “waived” by Mr. Jordan. Moreover, I see no reason to classify any other
period as being fairly attributable to Mr. Jordan.
(b)
Exceptional or Unavoidable Delay
[242]
No such delay is present here.
(4)
Was the Delay That Counts Against the State Unreasonable?
[243]
As discussed earlier, the reasonable time
requirements for a case of this nature were 28.5 months. The case in fact took
49.5 months. The difference is 21 months. Of that, 4 months are attributable
to the defence. The rest — a period of 17 months — counts against the
state. In other words, this case took almost a year and a half longer than what
would be a reasonable period to prosecute a case of this nature.
[244]
This is not a close case. The time to the end of
trial greatly exceeds what would be a reasonable time to prosecute a case of
this nature. While there are societal interests in the trial on the merits of
the serious drug crimes alleged against Mr. Jordan, these cannot make
reasonable the grossly excessive time that it took society to bring him to
trial.
D.
Other Issues Raised
[245]
The parties raised a number of other issues,
explicitly or implicitly, to which I will briefly respond.
(1) Should some delay where the courts
are unavailable be classified as inherent requirements if defence counsel is
also unavailable?
[246]
The inherent requirements of a case are
determined objectively and when this is done as described earlier in my
reasons, there is no overlap between the inherent requirements and
institutional delay.
(2) Should institutional delay be accorded
“less weight” in determining the overall reasonableness of the delay?
[247]
Under the revised framework, institutional delay
is not given less weight than other delay that counts against the state.
(3) Does the accused’s consent to an
adjournment or later trial date constitute “waiver”?
[248]
The onus is on the Crown to demonstrate that,
when an accused agrees to an adjournment initiated by the Crown or to a trial
date, it amounts to “waiver” and not “mere acquiescence in the inevitable”.
(4) Should inherent requirements be
subtracted from the final quantum of delay when assessing the overall
reasonableness of the delay?
[249]
Inherent requirements are not “subtracted” but
are rather considered along with institutional delay in deciding what period of
delay would be reasonable for a case of this nature.
(5) Can the constitutionally tolerable
length of institutional delay be extended if the accused did not suffer
“substantial” or “significant” prejudice?
[250]
As explained earlier, the answer is no: proof of
actual prejudice is not required to find unreasonable delay.
(6) Did the trial judge err in finding
that the accused only suffered “some” and not “substantial” prejudice?
[251]
I see no reason to interfere with the trial
judge’s reasons to this effect.
(7) Did the trial judge err when
categorizing the delays in this case, specifically in attributing so much of
the delay to Crown and institutional delay?
[252]
I see no reason to interfere with the trial
judge’s classification of delay in this case.
E.
Conclusion
[253]
I would allow the appeal and would stay the
charges against Mr. Jordan.
IV.
The Approach of Justices Moldaver, Karakatsanis
and Brown
[254]
It will by now be obvious that I fundamentally
disagree with the approach proposed by my colleagues. It is, in my respectful
view, both unwarranted and unwise. The proposed approach reduces reasonableness
to two numerical ceilings. But doing so uncouples the right to be tried within
a reasonable time from the Constitution’s text and purpose in a way that is
difficult to square with our jurisprudence, exceeds the proper role of the
Court by creating time periods which appear to have no basis or rationale in
the evidence before the Court, and risks negative consequences for the
administration of justice. Based on the limited evidence in the record, the presumptive
time periods proposed by my colleagues are unlikely to improve the pace at
which the vast majority of cases move through the system while risking judicial
stays for potentially thousands of cases. Moreover, the increased simplicity
which is said to flow from this approach is likely illusory. The complexity
inherent in determining unreasonable delay has been moved into deciding whether
to “rebut” the presumption that a delay is unreasonable if it exceeds the
ceiling in particular cases: para. 47.
A.
Reasonableness Cannot Be Captured by a Number
[255]
One of the themes that appears throughout the
Court’s jurisprudence on the right to be tried within a reasonable time is that
reasonableness cannot be judicially defined with precision or captured by a
number. The proposed ceilings are deeply inconsistent with this constant in our
jurisprudence.
[256]
In Mills, where this Court first
considered the scope of s. 11(b), Lamer J. wrote that a “reasonable”
time to trial cannot be determined with reference to specific numbers:
Reasonableness is an
elusive concept which cannot be juridically defined with precision and
certainty. Under s. 11(b), however, as we are dealing with
reasonableness as regards the passage of time, we have the advantage of being
able to refer to precise stages of proceedings and events.
This is not to say that
reasonableness can be predetermined with precision. That would be “falling
victim to the tyranny of numbers”. But the advantage to be found when dealing
with time is that reasonableness can be determined with the help of the precision
surrounding the happening of certain events, e.g. arraignment, the preliminary
inquiry, the trial, and the time elapsed between. [p. 923]
[257]
In Conway, L’Heureux-Dubé J. wrote for the majority that the “protection afforded by s. 11 (b)
of the Charter is not expressed in absolute terms” and that “the right
to a speedy trial ‘is necessarily relative. It is consistent with delays and
depends upon circumstances’”: p. 1672, quoting Beavers v. Haubert, 198
U.S. 77 (1905), at p. 87.
[258]
In Smith, Sopinka J. for the Court
elaborated on this point:
The question is, at what point does the
delay become unreasonable? If this were simply a function of time, the matter
could be easily resolved. Indeed a sliding scale of times could be developed
with respect to specified offences which could be adjusted because of the
special circumstances of the case. But it is not simply a function of time, but
of time and several other factors. What those basic factors are is not the
subject of disagreement. [p. 1131]
[259]
In Askov and Morin, this
Court again reiterated the importance of the balancing test in determining
reasonable delay. In fact, in Morin, this Court specifically
declined to create an administrative guideline for the “inherent” or “intake”
time requirements of a case, noting the “significant variation between some
categories of offences”: p. 792. Sopinka J. wrote that as “the number and
complexity of [intake requirements of a case] increase, so does the amount of
delay that is reasonable”: ibid.
[260]
Thus, the Court has said on several occasions
that reasonable inherent time requirements for cases do not lend themselves to
the creation of administrative guidelines.
[261]
Moreover, a judicially fixed ceiling for overall
case disposition is at odds with jurisprudence arising from every other
jurisdiction with a speedy trial guarantee of which I am aware. In Trial
Within a Reasonable Time (1992), Michael A. Code wrote that “[i]t is
generally foreign to the U.S. speedy trial jurisprudence to establish numerical
standards of any kind”: p. 119. The presence of time limitations, whether
judicial or statutory, are virtually unheard of in European jurisdictions. In Can
excessive length of proceedings be remedied? (2007), the Venice Commission
polled a number of jurisdictions ranging from Albania to the former Yugoslav
Republic of Macedonia, all of which replied in the negative to the questions as
to whether there was a deadline or fixed time frame in which the competent
authorities need rule on a criminal matter: Section II (pp. 65-322). Statutory
timelines are, of course, an entirely different matter and I will have more to
say about them in a moment.
[262]
There is no parallel between the administrative
guidelines for institutional delay adopted in Askov and Morin and
the ceilings for overall delay proposed in my colleagues’ reasons. As I have
explained, institutional delay is concerned with how long one should have to
wait for the court to be ready to hear the case. This is not a question that
depends to any significant extent on the particular circumstances of the case.
It is mainly a question of resources. It is quintessentially a judicial
function under the Constitution to set some clear limits on the point at which
the state’s plea of inadequate resources must give way to the constitutionally
guaranteed right to be tried within a reasonable time. The administrative
guidelines in Askov and Morin serve the reasonableness analysis
by defining when state-provided court services should reasonably be available.
Unlike the proposed ceilings, the administrative guidelines do not attempt to
define what would be a reasonable time for trying all cases in all
circumstances. Moreover, the administrative guidelines were intended to be
generous and established “neither a limitation period nor a fixed ceiling on
delay”: Morin, at pp. 795-96.
[263]
The proposed judicially created “ceilings”
largely uncouple the right to be tried within a reasonable time from the
concept of reasonableness which is the core of the right. The bedrock
constitutional requirement of reasonableness in each particular case is
replaced with a fixed ceiling and is thus converted into a requirement to
comply with a judicially legislated metric. This is inconsistent with the
purpose of the right, which after all, is to guarantee trial within a
reasonable time. Reducing “reasonableness” to a judicially created ceiling,
which applies regardless of context, does not achieve this purpose.
[264]
Moreover, this approach unjustifiably diminishes
the right to be tried within a reasonable time. As I see it, a case is not tried
within a reasonable time if it has taken “markedly longer than it reasonably
should have” (para. 48) to be tried. Other than in very unusual circumstances,
that is what an accused has to show to establish a breach of s. 11 (b) of
the Charter . But that is not enough under the proposed framework. When
the elapsed time is below the ceiling, an accused would have to show not only
that the case took “markedly longer” than it reasonably should have but also
that he or she “took meaningful steps that demonstrate a sustained effort to
expedite the proceedings”: para. 48. This requirement has no bearing on whether
the time to trial was unreasonable. It is, in effect, a judicially created
diminishment of a constitutional right, and one for which there is no justification.
I see no basis in the constitutional text or the jurisprudence for imposing
this burden on an accused person.
[265]
My colleagues’ “qualitative review of nearly
every reported s. 11 (b) appellate decision from the past 10 years, and
many decisions from trial courts” (para. 106) suggests that my concerns on this
score are not theoretical. That examination shows that our superior courts
found unreasonable delay in 20 percent of the cases where the delay was at or
under the 30-month ceiling. The percentage is about the same for the provincial
court cases at or under the ceiling. But under the proposed framework, none of
these cases could be stayed absent proof by the accused that they had attempted
to actively expedite the process. Imposing this burden is contrary to the
Court’s holding in Askov that “it is the responsibility of the Crown to
bring the accused to trial” and that “any inquiry into the conduct of the
accused should in no way absolve the Crown from its responsibility to bring the
accused to trial”: p. 1227.
[266]
The proposed approach in effect substitutes a
right to be “tried under the ceiling” for a right to be tried within a
reasonable time. In doing so, it unjustifiably diminishes the right guaranteed
by the Charter and sets aside a central teaching of our s. 11 (b)
jurisprudence — that reasonableness cannot be captured by a number.
B.
Creating Presumptive Ceilings for Reasonableness
Is a Legislative, Not a Judicial Task
[267]
Creating fixed or presumptive ceilings is a task
better left to legislatures. If such ceilings are to be created, Parliament
should do so. As Lamer J. stated in Mills: “There is no magic moment
beyond which a violation will be deemed to have occurred, and this Court should
refrain from legislating same” (p. 942; see also Conway, at p.
1697 (concurring)).
[268]
Prof. P. W. Hogg’s Constitutional Law of
Canada (5th ed. Supp.) notes that a number of commentators have advocated
that Parliament enact fixed time limits for trials: s. 52.5. The Law Reform
Commission in Trial Within a Reasonable Time: A Working Paper Prepared for
the Law Reform Commission of Canada (1994) (“Working Paper”) pointed
to a number of considerations that weigh in favour of legislative standards,
instead of judicially imposed ceilings: pp. 5-6.
[269]
First, courts do not, and should not, function
as legislatures. As the Working Paper put it:
The courts have been given a
greatly expanded role with the Charter , but their essential
function has not changed. They do not function as legislating bodies; their
principal task is adjudicating conflicts brought before them. Rather, it is the
role of Parliament to advance and enhance constitutional rights through
legislative standards which the Charter , by its very nature, can
provide only in general terms. As Chief Justice Dickson stated in Hunter v.
Southam Inc.[, [1984] 2 S.C.R. 145, at p. 169]:
While
the courts are guardians of the Constitution and of individuals’ rights under
it, it is the legislature’s responsibility to enact legislation that embodies
appropriate safeguards to comply with the Constitution’s requirements. [p. 5]
[270]
The Working Paper also pointed out that
legislative timelines can be more easily changed:
Another
advantage of statutory rules or internal court goals is that they can more
easily be adjusted and fine-tuned: constitutional standards, in contrast, are
difficult to amend. This will be particularly valuable in the case of the right
to a trial within a reasonable time. [p. 6]
[271]
In addition, the Working Paper noted that
legislation can more comprehensively address the root causes of delay:
In addition, statutory provisions
are not restricted to establishing time-limits. A Charter decision can
do little beyond setting a maximum allowable delay and providing a remedy when
it is exceeded. While this approach may be satisfactory from the perspective of
the individual accused, it does not address the societal interest. Statutory
provisions, on the other hand, can address the underlying causes of delay,
rather than merely responding to failures to meet the standard. [p. 6]
[272]
Creating presumptive, fixed ceilings is a matter
for Parliament, not for this Court, in my respectful view.
[273]
My colleagues write, and I agree, that giving
meaningful content to constitutional rights is entirely consistent with the
judicial role: para. 115. But that is not what the proposed ceilings do. The
proposed ceilings do not so much define the content of the s. 11 (b)
right to a trial within a reasonable time as place new limits on the exercise
of that right for reasons of administrative efficiency that have nothing to do
with whether the delay in a given case was or was not excessive. In my
respectful view, this is inconsistent with the judicial role.
C.
The Proposed Presumptive Ceilings Are Not
Supported by the Record
[274]
The proposed ceilings have no support in the
record that was placed before the Court in this case. The Court did not hear
argument about the impact of imposing them, which remains unknown.
[275]
Moreover, the ceilings appear to be illogical.
The ceilings accept the Morin guidelines for institutional delay: 8 to
10 months in provincial courts and 14 to 18 months in cases involving a preliminary
hearing and a trial (para. 52). This means that the proposed ceilings allow 8
to 10 months for the inherent time requirements of the case in provincial courts,
which seems long, while allowing only marginally more inherent time
requirements (12 to 16 months) for cases — generally significantly more complex
cases — that involve a preliminary inquiry and a trial. As well, under the
ceilings, the seriousness or gravity of the offence cannot be relied on to
discharge the onus which the ceilings impose: para. 81. Yet under the
transitional scheme, this remains a relevant factor: para. 96. The illogical
result is that serious offences are more likely to be stayed under the ceilings
than under the transitional scheme.
[276]
What evidence there is in the record suggests
that it would be unwise to establish these sorts of ceilings. For the vast
majority of cases, the ceilings are so high that they risk being meaningless. They
are unlikely to address the culture of delay that is said to exist. If
anything, such high ceilings are more likely to feed such a culture rather than
eliminate it.
[277]
Consider the statistical information that we
have in the record which is from the Provincial Court of British Columbia.
It suggests that the proposed ceiling for the provincial courts is too high to
be of any use in encouraging more expeditious justice in the vast majority of
cases.
[278]
The proposed ceiling is set for 18 months in
provincial courts. But the median time to disposition of matters in the
Provincial Court of British Columbia was 95 days in 2011-2012, with the average
being 259 days, both well below the proposed ceiling: B.C. Justice Reform
Initiative, A Criminal Justice System for the 21st Century (2012),
at p. 30. Of course, these statistics relate to all matters, the vast majority
of which (about 95 percent) are disposed of without trial: p. 33. The time to
trial varies widely by court location with the time to the commencement of
trial for a 2-day case varying in the Provincial Court from 12 to 16 months: p.
34. (I note that this period does not include the period from intake until a
trial date is set and measures only to the beginning, not the end of the trial:
“Justice Delayed: A Report of the Provincial Court of British Columbia
Concerning Judicial Resources” (September 2010) (online), at p. 21.) But
there is not much here to lead one to think that the ceilings will do anything
to improve the timeliness of the vast majority of criminal cases in the
Provincial Court. And, as I will discuss shortly, the ceilings put a small
percentage of the total caseload, but a large number of long cases, at serious
risk of judicial stay.
[279]
The “qualitative review” conducted by Justices
Moldaver, Karakatsanis, and Brown “assisted in developing the definition of
exceptional circumstances” and provided “a rough sense of how the new framework
would have played out in some past cases”: para. 106. This examination has not
been the subject of adversarial scrutiny or debate, and how it “assisted” in
developing the definition of exceptional circumstances is unstated. In any
case, the examination as I have reviewed it suggests that the proposed ceilings
are unrealistic and that their implementation risks large numbers of judicial
stays.
[280]
What does this examination tell us about the
appropriateness of the ceilings? Consider first the superior court cases over
the past 10 years in which stays were granted. The average “net” delay was
about 44 months, with the median “net” delay being about 37 months. This
provides no support for a ceiling of 30 months for superior court cases. The
examination is no more supportive in relation to the provincial courts. Looking
at provincial court cases in which stays were granted, the average “net” delay
was about 27 months and the median was 24.5 months (I have excluded Quebec from
this calculation because of the distinctive jurisdiction of the Court of
Québec). Once again, my colleagues’ examination of the cases
fails to support the proposed ceiling of 18 months for provincial court cases.
[281]
Developing the proposed ceilings in the absence
of evidence and submissions by counsel contrasts with the Court’s development
of the administrative guidelines for institutional delay in Askov and Morin.
In those cases, the Court had the benefit of extensive evidence
including statistical information from comparable jurisdictions and expert
opinion: Morin, at p. 797. The record in Morin included
four volumes of evidence, largely consisting of evidence from three experts
with exhibits on the issue of institutional delay across various jurisdictions
in Canada — in fact, two volumes of the record were exclusively devoted to such
information. This record contained evidence from a solicitor in the
region of Durham, the region at issue in Morin, who was a member
of the trial delay reduction committee in the region. His evidence included
statistical information and information about the efforts made to reduce delay
in the region. Furthermore, the record included extensive evidence from
Professor Baar, who “has written and consulted extensively on court
administration in general and case flow management in particular in Canada, the
United States and other jurisdictions”: R. v. Morin (1990), 55 C.C.C.
(3d) 209 (Ont. C.A.), at p. 213. This extensive record enabled the Court
to analyze the respective caseloads of provincial courts and superior courts,
the increase in caseload in particular regions (including in Durham), reasons
for the growth in this caseload, and the abilities of various courts to handle
the increasing caseload: see Morin (S.C.C.), at pp. 798-99. The
broad range set out in the administrative guidelines in Morin (eight to
ten months in provincial court; six to eight months from committal to trial)
was derived from the considerable mass of evidence then before the Court.
D.
There Is a Significant Risk of Negative
Consequences
[282]
My colleagues acknowledge that, if their new
framework were applied immediately, there would be a risk of thousands of cases
being off-side the new ceilings and being judicially stayed as a result: para.
98. There are worrying signs in the limited record that we do have that large
numbers of cases (although not a large percentage of the total cases dealt with
by the courts) would be at risk if the presumptive ceilings were applied.
[283]
The record indicates that, in the British
Columbia Provincial Court, as of March 31, 2010, there were over 2,000 adult
criminal cases pending for over 18 months. As of 2011, this represented 13
percent of the caseload of the Provincial Court. As of 2012, 4 percent of
pending cases in the Provincial Court had been in the system for more than two
years: “Justice Delayed”, at p. 23; B.C. Justice Reform Initiative, at p. 35.
Thus the limited record that we do have suggests that the proposed ceiling of
18 months in provincial courts, if applied now, would put thousands of
prosecutions in the Provincial Court at serious risk of being judicially stayed.
Dramatic improvements for the group of cases at the top end of the delays would
be required to avoid thousands of judicial stays under the proposed ceilings.
[284]
The examination of the case law undertaken by my
colleagues increases rather than diminishes this concern. As I noted earlier,
the average time for stays in superior courts, based on that analysis, is about
44 months, with the median being about 37 months. This time period
significantly exceeds the proposed 30-month ceiling. If these figures can be relied
on, they suggest that the proposed ceilings would require unrealistic and
improbable improvement in case processing times to avoid many judicial stays.
[285]
The transitional regime which my colleagues
propose is intended to avoid the problems that would arise from immediate
application of the presumptive ceilings. In my view, these transitional
provisions will not avoid the risk of thousands of judicial stays of
proceedings.
[286]
Although my colleagues maintain that different
criteria should not apply during the transitional period, they in fact
establish different criteria for transitional cases. To take only one example,
there will be a “transitional exceptional circumstance” if the parties
reasonably relied on the law as it previously existed and have not had time “to
correct their behaviour”: para. 96. In other words, the ceilings do not apply
to some transitional cases.
[287]
The basic problem with this is that transitional
provisions create a Charter amnesty. What is unreasonable according to
the Constitution is treated as if it were reasonable. The justification for
this is that parties require time to correct their behaviour following the
release of this decision. However, this sort of Charter amnesty is
contrary to our s. 11 (b) jurisprudence.
[288]
Morin ruled
against transitional provisions in s. 11 (b) cases and explained why
purporting to set up a parallel system of rules to govern existing cases is
wrong in principle. Sopinka J. for the majority wrote, at pp. 797-98:
. . . the Court of Appeal purported to
apply a transitional period to accommodate the situation in Durham. While a
transitional period may have been appropriate immediately after the Charter
came into effect, it is not appropriate any longer. This Court so held in Askov.
The use of a transitional period implies a fixed period during which
unreasonable delay will be tolerated while the system adjusts to a new set of
rules. It imposes a general moratorium on certain Charter rights. For
this reason and quite apart from the statement in Askov that the transitional
period had ended, I would not find it appropriate in this case. It appears to
me undesirable to impose a moratorium on Charter rights every time a
region of the country experiences unusual strain on its resources. It is
preferable to simply treat this as one factor in the overall decision as to
whether a particular delay is unreasonable. [Emphasis added.]
[289]
In my opinion, this teaching is both
authoritative and sensible. I would continue to apply it.
[290]
Moreover, my colleagues indicate that the
proposed transitional exception applies to problems of institutional delay. But
it is hard to see how this can be justified by the need to give parties an
opportunity to correct their behaviour. The guidelines for reasonable
institutional delay were established (at the very latest) in Morin,
almost a quarter of a century ago. Twenty-four years is long enough for parties
to modify their behaviour to comply. No transitional arrangements for
institutional delay can now be justified.
[291]
My colleagues write that the “contextual
application of the [new] framework is intended to ensure that the post-Askov
situation [in which tens of thousands of charges were stayed in Ontario
alone] is not repeated”: para. 94. In other words, the hope is that the
presumptive ceilings that are unrealistic now will become realistic in the
fairly near future. But there is no basis in the record or in logical reasoning
to suppose that these ceilings, if dramatically unrealistic now, will become
less unrealistic with the passage of time. In my respectful view, this Court
should not impose on the criminal justice system the risk that thousands of
prosecutions will be judicially stayed. Doing so is especially regrettable when
it is done, as is proposed here, in a virtual factual vacuum, with no opportunity
for submissions about either the wisdom of this approach or the accuracy of the
assumptions on which it is based.
[292]
My colleagues maintain that there is a “culture
of complacency towards delay” (para. 40) that has emerged in the criminal
justice system, which is not addressed by the Morin framework. They
argue that their revised approach to s. 11 (b) is warranted, given that
under the current framework “participants in the justice system . . .
are not encouraged to take preventative measures to address inefficient
practices and resourcing problems”: para. 41. But, contrary to these broad and
unsupported generalizations, even the limited record before the Court indicates
that the problem of excessive delay has been the focus of extensive attention
by the British Columbia Provincial Court and by the governments of British
Columbia, Alberta, Newfoundland and Labrador, and Ontario. The most recent
statistics in the record indicate that the situation is, if anything, getting
better, not worse: see “The Semi-Annual Time to Trial Report of the Provincial
Court of British Columbia to March 31, 2015” (online), at p. 5.
[293]
Imposing judicially created ceilings as an
aspect of our s. 11 (b) jurisprudence presents risks. If we are to take
these risks through the imposition of ceilings or other time limits, these
limits should be created by legislation and informed by facts.
E.
The Promised Simplicity of the Ceilings Is
Likely Illusory
[294]
Even if creating ceilings were an appropriate
task for the courts and even if there were an appropriate evidentiary basis for
them, there is little reason to think these presumptive ceilings would avoid
the complexities inherent in deciding whether a particular delay is
unreasonable in all of the circumstances.
[295]
We can look to the experience of other
jurisdictions. It appears that even fixed limitation periods set by
legislatures have not succeeded in avoiding complexity. Various states in the
United States have created statutory time limitation periods dealing with
overall delay in criminal proceedings. At the federal level, there is the Speedy
Trial Act of 1974, 18 U.S.C. § 3161, and there are similar
provisions in many states: W. R. LaFave et al., Criminal Procedure (5th
ed. 2009), at pp. 892-93. These provisions create time limitations, but also
include a number of contingencies to account for the plethora of different
circumstances under which criminal cases may arise: pp. 895-97. In short, to be
workable, the legislated limits inevitably require that a number of factors be
balanced and considered in determining whether any case or charge should be
dismissed: p. 897. But these contingencies and this balancing simply give rise
to the sort of litigation that the limits were supposed to avoid: see S.
Hopwood, “The Not So Speedy Trial Act” (2014), 89 Wash. L. Rev. 709, at
p. 715.
[296]
Turning to the proposed scheme, it seems to me
that rather than avoiding complexity, it simply moves the complexities of the
analysis to a new location.
[297]
I turn first to cases in which the delay exceeds
the presumptive ceiling. Departure from the ceiling may be required by a
variety of circumstances: “discrete exceptional events” (para. 75), including
delay caused by unexpected recantation by a complainant and other unforeseen
trial delays; delay resulting from a case’s particular “complexity” (para. 77);
and whether particular periods of delay could reasonably have been mitigated.
It is hard to see how this framework is likely to bring greater simplicity to
the analysis.
[298]
The same applies to the burden on the defence in
cases which fall below the ceilings. Under the proposed framework, the defence
has the burden to show, first, that the time required to dispose of the case
“markedly exceeds the reasonable time requirements of the case”: para. 87. In
order to consider a defence attempt to discharge this burden, the court will
have to consider a variety of factors, including “the complexity of the case,
local considerations, and whether the Crown took reasonable steps to expedite
the proceedings”: ibid. These factors largely mirror the test under the
existing jurisprudence.
[299]
The defence must also show that it took
“meaningful, sustained steps to expedite the proceedings”: para. 84. The
defence must show that “it attempted to set the earliest possible hearing
dates, was cooperative with and responsive to the Crown and the court, put the
Crown on timely notice when delay was becoming a problem, and conducted all
applications . . . reasonably”: para. 85. I have already explained why I think
it is inappropriate to impose this burden. But putting that aside, the need for
these inquiries increases rather than reduces the complexity of the analysis
mandated by the existing jurisprudence.
[300]
Finally, consider the proposed transitional
provisions. It is unexplained how the Crown will be able to satisfy the court
that “the time the case has taken is justified based on the parties’ reasonable
reliance on the law as it previously existed” in the relevant jurisdiction, let
alone how it will be shown that “the parties have [or have not] had time
following the release of this decision to correct their behaviour”: para. 96.
Little imagination is needed to see the ballooning evidentiary implications of
these elements of the scheme. Also, it seems that for transitional cases below
the ceiling, unlike cases subject to the new template, the defence does not
have to prove having taken initiative to expedite matters in the period
preceding this decision in order to make out a case of unreasonable delay. But
doing so will assist the defence claim of unreasonable delay. The result is
that even in transitional cases, the parties will be parsing the record to show
how the defence did, or did not, try to move things along.
[301]
These considerations suggest that the proposed
presumptive ceilings will do little to simplify the task of determining whether
the delay in a particular case violates the accused’s right to be tried within
a reasonable time. In one way or the other, the judge must look at the
circumstances of the particular case at hand.
F.
Conclusion
[302]
I am not convinced that this Court should impose
the scheme proposed by my colleagues. It diminishes Charter rights. It
casts aside three decades of the Court’s jurisprudence when no participant in
the appeal called for such a wholesale change — and this in the context of a
case in which all of us agree that the result is clear under the existing
jurisprudence. It has not been the subject of adversarial scrutiny or debate.
The record does not support the particular ceilings selected. Nor, so far as I
can tell, does the Court-conducted examination of reported cases. And it risks
repetition of the Askov aftermath in which thousands of prosecutions
were judicially stayed. In short, the proposed scheme is, in my respectful
view, wrong in principle and unwise in practice.
V.
Disposition
[303]
I would allow the appeal and enter a stay of
proceedings.
Appeal
allowed.
Solicitors for the
appellant: Peck and Company, Vancouver.
Solicitor for the
respondent: Public Prosecution Service of Canada, Vancouver.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of Alberta,
Calgary.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Farris,
Vaughan, Wills & Murphy, Vancouver.
Solicitors for the
intervener the Criminal Lawyers’ Association (Ontario): Addario Law Group,
Toronto.