Perhaps one of the greatest complaints of the criminal justice system is its long and tedious process. Given the abrupt nature of the COVID19 pandemic, the delay in courts has undoubtedly increased. Nevertheless, if you are charged with an offence, you have the right to have your trial heard in a reasonable time.
Section 11(b) of the Charter guarantees the constitutional right to be tried within a reasonable time. This right is extremely significant within the Canadian justice system because any person charged with an offence is presumed innocent until proven guilty. The longer it takes for a person to be tried before a court, the longer they experience stress, anxiety, and any stigma of being an accused despite being presumed innocent. Additionally, the longer it takes to reach trial also means an accused person is more likely to face greater prejudice when mounting a defence, whether it be from faded memories from time, unavailability of witnesses, or lost or degraded evidence.
This begs the question: what does the criminal justice system consider to be a reasonable or unreasonable time?
In 2016, the Supreme Court of Canada heard the case, R v Jordan, 2016 SCC 27. The Jordan framework, or what is colloquially known as the Jordan clock, sets out presumptive ceilings on pre-trial delay. When delay passes this ceiling, it becomes presumptively unreasonable. The ceiling is 18 months for trials in provincial court, and 30 months for those in the superior court (where more serious offences are heard). In other words, it is possible it has taken too long to hear your trial to its end, and your Charter right has been infringed.
The next question to ask is what party is to blame for delaying your trial. Who is responsible for infringing your constitutional right for your trial to be heard in a reasonable time?
From the moment you are charged with an offence, this timer begins until the actual or anticipated end of trial, minus delay attributable to the defence. Importantly, any delay because of you or your defence counsel will not count towards delay. On the other hand, the Crown, the Courts, and the police have obligations to expeditiously bring a matter to trial. If delay does pass the presumptive ceiling, the Crown must be prepared to explain why it has taken so long to hear your trial. Every actor in the justice system has the responsibility to ensure that proceedings are carried out in a manner that is consistent with s. 11(b).
The steps to calculate unreasonable delay are as followed:
1. Calculate the delay
- First, calculate the total delay from the day the accused has been charged to the actual or anticipated end of trial.
- Second, subtract any delay from the defence, either from the accused or their defence counsel. This can include any time that the defence has waived delay. For instance, time can be waived to allow accused persons to engage in upfront work like anger management or drug counseling which may be helpful to resolving the criminal charge instead of going to trial.
Defence can also cause delay through their untimely actions. The rationale is that the defence cannot benefit from slowing down the process deliberately.
2a. If delay is above the presumptive ceiling, determine if delay was caused by exceptional circumstances
- After delay is calculated minus any caused by the defence, if it is still higher than the ceiling, then the Crown has the opportunity to rebut the presumption that the delay was unreasonable. They can explain that the case was ‘complex’ so the ceiling should be raised, or the delay was caused by exceptional circumstances. These are circumstances that the Crown cannot control because they are reasonably unforeseen or reasonably unavoidable, and the Crown cannot reasonably remedy any delay that derives from these circumstances.
2b. If delay is below the presumptive ceiling, determine if delay is still unreasonable
If any delay does not pass the presumptive ceiling, the defence can still claim the delay is unreasonable by:
- Demonstrating that the defence took meaningful and sustained steps at expediting the proceedings and;
- The case took markedly longer than reasonably should have. Factors to look at would be the complexity of the case, local considerations like the jurisdiction it takes place in, and whether the Crown took steps to expedite the process.
3. Is the delay unreasonable?
Where the delay passes the ceiling and the Crown fails to identify exceptional circumstances, or where the delay is below the ceiling and the defence successfully demonstrates that case took markedly longer than it should have to complete the trial, the remedy is a stay. A stay is a ruling by the court to suspend the proceedings temporarily or indefinitely. The issue of guilt or innocence is never determined, and there is no further court action to be taken.
The Jordan framework was developed to “encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice”. The truth-seeking function of the criminal justice system can appear to be an intimidating and lengthy process, but it should not consume your life nor take longer than what is reasonable. Our Constitution ensures this.
If you or someone you know has questions concerning the delay in their criminal matter, contact the lawyers of Lockyer Zaduk Zeeh to assist you.