For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:
Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if the public comes to view the system with distain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.1
In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada, on which Justice Moldaver now sits, recently made broad and sweeping changes to the framework that determines whether an accused has been tried within a reasonable time under s. 11(b) of the Charter. The decision, by a 5-4 majority, has the potential to radically alter the way that criminal cases are litigated, particularly for corporate defendants.
A New Framework
The majority decision penned by Justices Moldaver, Karakatsanis and Brown, and supported by Justices Abella and Côté, established the following new framework for applying s. 11(b):
Part 1: The Presumptive Ceiling
- There is a presumptive ceiling of 18 months on the length of a criminal case in provincial courts, from the charge to the end of trial.
- There is a presumptive ceiling of 30 months on criminal cases in superior courts, or cases tried in provincial courts after a preliminary inquiry.
- Delay that is attributable to, or waived by, the defence does not count toward the presumptive ceiling.
- Institutional delay that is not the fault of the Crown does count toward the presumptive ceiling.
Part 2: When the Ceiling is Exceeded
- When the presumptive ceiling is exceeded, it is automatically presumed that the delay is unreasonable.
- The Crown may only rebut this presumption by establishing one
of the following exceptional circumstances:
- A discrete event occurred that was reasonably unforeseen and reasonably unavoidable (such as an illness or unexpected event at trial). The delay attributable to such an event is subtracted from the total delay; or
- The case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.
- Where the Crown cannot rebut the presumption of unreasonableness, the charges against the accused will be stayed.
Part 3: Below the Ceiling
- Where a presumptive ceiling has not been exceeded, an accused
may establish that the delay is unreasonable by showing that:
- it made a sustained effort to expedite the proceedings; and
- the case took markedly longer than it reasonably should have.
- Where the accused establishes both of these elements, the charges against the accused will be stayed.
Part 4: Transition
- Where charges were instituted pre-Jordan, the application of the above framework must take into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.
In Jordan, the majority rejected the existing approach to s. 11(b) of the Charter. As set out in R. v. Morin,  1 S.C.R. 771, the existing approach considered many factors and emphasized a contextual analysis of the unreasonableness of the delay. The majority in Jordan held that the Morin approach was too unpredictable, confusing, and complex, and it ultimately contributed to the pervasive delays that it was intended to prevent. The majority in Jordan therefore gambled on a more regimented framework with a prescribed ceiling, intending to provide greater certainty and deter complacency.
Minority Prefers Retaining a Highly Contextual Framework
Justice Cromwell wrote a strongly-worded minority judgment on behalf of Justices McLachlin, Wagner and Gascon, lamenting the application of prescribed ceilings to what should be a highly contextual inquiry:
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. ... 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.
The minority would have merely refined the Morin framework.
In Jordan, the majority and minority both concluded that the delay of 49.5 months in concluding the trial of the accused was unreasonable. Accordingly, all of the justices would have stayed the charges against Mr. Jordan. In the companion decision of R. v. Williamson, 2016 SCC 28, however, the majority found that a delay of 34 months required a stay of sexual offences against a minor, while the minority held that convictions for such serious offences should not be stayed in a "close case" of excessive delay.
The Impact of Jordan on Accused Persons
On its face, Jordan seems like a big win for the defence. However, the impact of the decision is likely to be more mixed.
For accused persons in serious and complex cases the decision likely presents opportunities to obtain a stay in circumstances where it previously would not have been available. Where the presumptive ceilings are exceeded, accused persons no longer have to undertake the difficult task of proving that they suffered prejudice as a result of the delay. Additionally, the Crown can no longer rely on chronic institutional delays in the court system as an excuse for failing to bring a case to trial within the presumptive ceiling.
Conversely, the decision raises real concerns for accused persons in more straightforward criminal matters. As the minority noted, the length of most cases would normally not come anywhere near the presumptive ceilings. The existence of these presumptive ceilings may result in all cases regressing towards this level of delay. Crown prosecutors will likely be forced to direct their resources towards ensuring that more complex cases are heard within the 18 or 30 month time limit. This in turn could result in fewer resources being available for more straightforward matters.
Below the presumptive ceiling, an accused is required to meet an onerous two-step test in order to engage s. 11(b). At the first step, the accused must demonstrate that he/she took all reasonable steps to advance the proceedings, including scheduling dates as early as possible, being responsive to the Crown and the Court, bringing only reasonable applications, and raising any delays with the Crown. The burden rests solely on the accused to demonstrate that he is attempting to proceed expediently.
If the accused is not pushing the case forward, the Crown has no incentive to advance the case until it runs up against the presumptive ceiling. It is clear from the majority decision that the Court is attempting to motivate both the prosecution and defence to play an active role in case management ("[e]ncouraging the defence to be part of the solution"). Post-Jordan, the complacency of the defence will likely be fatal to a s. 11(b) argument.
Much will depend on the meaning that is given to the requirement that the accused prove that his case took "markedly longer than reasonably necessary" if the delay falls below the presumptive ceiling. It may be possible to guard against Crown complacency in advancing simple cases by arguing that the presumptive ceiling is itself unreasonable for these matters. The viability of this approach will depend on the development of the post-Jordan jurisprudence.
This is particularly true for accused who suffer actual prejudice due to delay that falls below the presumptive ceiling, for example because he or she is held in custody. In Jordan, the majority held that "prejudice will no longer play an explicit role in the s. 11(b) analysis", such that "the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached." Effectively, the majority would infer prejudice once the presumptive ceiling is breached. While this may be useful to some accused – and particularly corporate accused, as discussed below – it is cold comfort to those who suffer actual prejudice as a result of the delay in resolving their charges. The majority contends that "we can expect accused persons who are truly prejudiced to be proactive in moving the matter along". But what if the Crown or the court will not cooperate?
The answer will likely depend on the approach that is taken to the identification of delay that is markedly longer than reasonably necessary. Will reasonable necessity be a sliding scale to accommodate hardship to the accused as a result of delay that falls below the presumptive ceiling? Only time will tell.
The impact of Jordan will also depend on how strictly the exceptional circumstances that might refute presumptive unreasonableness are defined. The minority criticizes the new framework on the basis that it pushes the vagaries of the inquiry into the determination of exceptional circumstances. While the majority provides some examples of exceptional circumstances, it states that the list is not closed, and the scope of the doctrine will likely be hotly contested.
Importantly, however, it is clear that classic court administration or institutional delay cannot be explained away as an exceptional circumstance. In situations where both the Crown and defence have moved the matter forward expeditiously but the earliest available dates push the matter beyond the presumptive ceiling, a stay will be the presumptive remedy, and the presumption will not be rebutted by chronic resource constraints. The redeployment and expansion of court administration budgets may therefore be the most immediate impact of Jordan.
The Quasi-Criminal/Regulatory Impact
It is settled law that s. 11(b) rights apply to Defendants facing regulatory prosecutions (e.g. Occupational Health and Safety statutes, Environmental statutes and other Provincial Offences prosecutions). In such matters, the Defendant is often a corporation. Following R. v. CIP Inc,  1 SCR 843 it became virtually impossible for corporate defendants to establish a violation of s. 11(b), as they were required to establish "irremediable prejudice" as a result of the delay – there was no presumed prejudice. Because Jordan eliminates any direct consideration of prejudice, a corporate defendant should be in no different position than an individual when seeking to rely on the presumptive ceiling of 18 months in the provincial courts.
It is rare that more complex regulatory prosecutions proceed to a disposition on the merits within 18 months. There can often be large amounts of disclosure involving complex matters of expert evidence. The new Jordan framework will undoubtedly force the Crown to organize disclosure in advance of the service of a summons, move matters more quickly toward pre-trial conferences, and set early trial dates. We can also expect to see the Crown insist on a defence waiver of s. 11(b) at adjournment stages, even for corporate defendants. Given that the clock begins to run once a charge is laid, it is also possible that the laying of charges will be delayed while the Crown prepares its case. Presumably, however, pre-charge delay could only be stretched so far before the Crown ran up against statutory limitation periods.
These are important changes that counsel will want to consider and anticipate when defending quasi-criminal and regulatory matters.
1 John Sopinka Lecture, Annual Conference of Criminal Lawyers' Association, October 21, 2005.
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