This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
A new landmark decision of the Supreme Court of Canada has changed the way courts will be assessing the reasonableness of delay in criminal proceedings. A majority of the Court departed from its previous jurisprudence, tossing out the old framework and replacing it with a framework based on time limits, labelled “presumptive ceilings”. Any delay beyond the ceilings is unreasonable unless the Crown can justify the delay based on exceptional circumstances.
Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that any person charged with an offence will be tried within a reasonable time. The jurisprudence surrounding this fundamental right has evolved over the years, with the Supreme Court of Canada attempting to balance numerous interests through the various frameworks. In the very recent case of R v Jordan, 2016 SCC 27 [Jordan], the Court once again reconsidered the section 11(b) unreasonable delay framework. A majority of the Court held that a new framework was needed because the old framework established in R v Morin,  1 SCR 771 [Morin] was overly complex, confusing, and, at the end of the day, had assisted in fostering an inappropriate culture of delay within our criminal justice system.
Unlike the old Morin framework, the new Jordan framework is focused on providing up front certainty into what length of delay will be considered presumptively unreasonable. It does so by imposing two “presumptive ceilings” of unreasonable delay. The first renders 18 months of delay for matters in Provincial Court presumptively unreasonable, while the second renders 30 months of delay for matters in superior courts presumptively unreasonable. (Any delay attributable to the defence or waived by the defence does not count towards the total delay).
Once the presumptive ceiling is reached, the only way the delay can be considered constitutionally acceptable is if the Crown provides an exceptional circumstance that could justify the delay. Generally, exceptional circumstances will include those that: 1) were reasonably unforeseen or reasonably unavoidable; and 2) could not have been easily remedied. The Crown bears the likely heavy onus of proving an exceptional circumstance. Unlike in the Morin framework, considerations such as the seriousness or gravity of the offence, chronic institutional delay, and/or the absence of any prejudice to the accused cannot be relied on.
Delay that is below the presumptive ceiling may still be considered unreasonable and a violation of section 11(b), but the accused bears the onus of demonstrating that this delay is unreasonable. Two things must be established by the accused in such situations: (1) meaningful steps were taken by the accused that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
The Court also stated that when one’s right to be tried within a reasonable time is violated, the remedy should be a judicial stay of proceedings. While the Court was not asked to reconsider whether a stay should always be the remedy, and noted that it was not reconsidering that issue at this time, the Court was clear that a stay of proceedings is the appropriate remedy (for a short discussion of the remedy issue, see R v Pidskalny, 2013 SKCA 74 at paras 48-52).
Ultimately, Jordan is a very important case with implications for all actors in our criminal justice system. The new framework may result in real and significant pressures being placed on Crown counsel, defence counsel, the courts, and even the provincial and federal governments in finding innovative ways to handle, streamline, and dispose of criminal matters. Time will be the ultimate judge in this regard. In the meantime, the Supreme Court of Canada has drawn the constitutional line in the sand – delay must stay below the presumptive ceilings or a stay of proceedings is likely to result in the majority of cases that extend beyond those ceilings.