What does the right to a speedy trial mean? This is a question that surely crosses the minds of those who find themselves moving slowly through the criminal justice system. Section 11 (b) of the charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. As of July 2016, recent changes in the law are sure to have significant implications and hopefully improvements in this area.

New Guidelines

The Supreme Court of Canada’s decision in R v Jordan, [Jordan] has set out new guidelines for determining whether an accused’s right to be tried within a reasonable time has been met under s. 11(b) of the Charter.

The old regime under R v Morin, [Morin] provided a contextual framework for analyzing whether there was delay.  The burden was on the accused to demonstrate delay and a breach of 11(b) rights. Under this regime delay was classified as being either institutional, defence or crown delay.  Institutional and crown delay were examined based on guidelines of 8-10 months for provincial court offences. In cases proceeding in superior court another 6-8 months could be added allowing for a range of 18 months.  When the length of the delay was not itself determinative, the decision would often turn on the degree of prejudice to the accused occasioned by the delay.  The accused would have to tender proof that their plight worsened as a result of the institutional delay in disposing of the charge. In Jordan, the Honourable Justice Moldaver declared the entire Morin framework dysfunctional.  The court found that the existing framework was unduly complex, highly unpredictable and flexible, having a retrospective rather than preventative approach.  The majority remarked that it encouraged a “culture of complacency” in the court system.

The new approach provided in Jordan aims for some clarity and efficacy by establishing a “presumptive ceiling”.  Criminal cases in the provincial courts have a ceiling of 18 months. Cases in provincial courts after a preliminary inquiry or in superior court are attributed a ceiling of 30 months.  This ceiling is calculated from the time a charge is laid to the end of the trial. Delay that is attributed to or waived by the defence is deducted from the calculation.   Jordan now includes institutional delay, such as first appearances and providing disclosure, towards calculating the presumptive ceiling.

When a time frame exceeds the presumptive ceiling, the delay is automatically presumed unreasonable and prejudice has occurred.  The onus then falls on the crown to show that the delay was reasonable, otherwise a stay of proceedings is granted.  The crown can do so by showing exceptional circumstances beyond their control;

• That the case was especially complex due to the nature of the case
• That there was a discrete event, unforeseen or unavoidable that cannot reasonably be remedied.

If the exceptional circumstance relates to a discrete event such as an illness or unexpected event at trial, the delay attributable to that event is subtracted from the total delay. If the delay arises from the case’s complexity it is reasonable and no further analysis is required.  In order to obtain a stay when delays fall below the Jordan ceiling, the burden falls on the accused to prove the delay was unreasonable by showing that;

• The case took “markedly” longer than it should have and;
• That he or she took meaningful steps to expedite the proceedings

The Supreme Court has allowed for a transitory period for cases that are already in the system.  This allows parties to ague their case under the old Morin framework if they had reasonably relied on it.

While Jordan may provide some positive change such as a clear timeframe for cases to be tried within, it is criticized for some of its other consequences. For starters, there has been an instant rise in Crown’s insisting on 11(b) waivers in order to protect the record, even during routine adjournments. And while it may provide a benefit for complex cases, the deadline does not provide any incentive to move along cases that easily fall within the presumptive ceiling.

It is undisputed that Jordan has fundamentally changed years of precedent and the way the crown must prosecute its cases.  Yet, while the law on speedy trials has changed, the resources provided to the courts have not changed with it. The ultimate effects of Jordan may not be fully realized unless court resources catch up with the law.