R. v. Jordan

R. v. Jordan
Collection
Supreme Court Judgments
Date
2016-07-08
Neutral citation
2016 SCC 27
Report
[2016] 1 SCR 631
Case number
36068
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 36068
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631
Appeal heard: October 7, 2015
Judgment rendered: July 8, 2016
Docket: 36068
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.
Venice Commission (European Commission for Democracy through Law). Can excessive length of proceedings be remedied? Strasbourg: Council of Europe 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 conse