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The Jordan Decision: Unreasonable Trial Delays

The Canadian Charter of Rights and Freedoms entrenched civil rights in the Canadian Constitution.  The Charter plays an integral role in criminal law. Section 11 of the Charter protects rights in relation to criminal and penal matters, codifying fundamental concepts considered pillars of the criminal justice system.  To name only a few of the rights protected by section 11 of the Charter, any person charged with an offence has the right to: (a) be informed without unreasonable delay of the specific offence, (b) be tried within a reasonable time, and (c) not to be compelled as witness in proceedings against that person in respect to the offence.  Further rights protected by this section include the presumption of innocence, the right to a jury trial, and the right not to be denied reasonable bail without just cause.  Recently, section 11(b) has received a great deal of attention.

The Canadian criminal court system is overburdened and institutional delays have become commonplace.  There are a high number of cases awaiting trial and appeal. The time delays experienced present great challenge not only for the accused and their families, but also victims.  Time spent in pre-trial custody, or on strict bail conditions prior to any finding of guilt can have a significant long-lasting negative impact on the accused and those they consider dear.  As noted by a timeless legal maxim: “justice delayed is justice denied”.

The delays that have become inherent in the Canadian criminal court system have led to increasing numbers of Charter claims under section 11(b).  With cases often dragging on for years before trial, there is pressure to reverse what has become a “culture of complacency”, which regularly results in the violation of the accused’s charter right to be tried within a reasonable time.

In a landmark decision last summer, the Supreme Court of Canada set new “presumptive ceilings” for the provincial and superior courts.  In Ontario, these are called the Ontario Court of Justice and the Ontario Superior Court.  Under these “presumptive ceilings,” provincial trials must now be completed within 18 months, while in superior court, cases must be concluded within 30 months.  Once the presumptive ceiling has been surpassed, the delay is presumed to be unreasonable.

R v. Jordan

The landmark decision referred to above was the case of R. v. Jordan.  The facts of the case centered around Barrett Richard Jordan, who was arrested in December 2008 and accused of selling cocaine and heroin in British Columbia.  He was not convicted until February 2013, more than 49 months later.  Mr. Jordan’s defence lawyer argued that his client’s 11(b) Charter rights had been infringed. The trial judge, based on the leading authority on section 11(b), a case called R. v. Morin, [1992] 1 S.C.R. 771, concluded that Mr. Jordan’s rights were in fact not infringed. The British Columbia Court of Appeal found that the trial judge did not err.  The case was appealed to the Supreme Court of Canada, which reversed the decision, finding that the delay in Mr. Jordan’s case was unreasonable.

R v. Morin

Prior to Jordan, the framework for section 11(b) was based on guidelines created in a case called R. v. Morin.  This Supreme Court case indicated that four factors had to be examined and weighed in order to determine whether the accused’s right to be tried within a reasonable time had been breached. These factors were: the length of the delay; defence waiver; the reasons for the delay; and prejudice to the accused’s interests in liberty, security of the person, and a fair trial.  The Court indicated guidelines of acceptable institutional and Crown delay: eight to ten months in provincial court and a further six to eight months after committal for trial in superior court.

The role of prejudice under the R. v. Morin framework has undergone significant change in R. v. Jordan.  Under R. v. Morin prejudice, or harm to the accused, was an important factor in assessing whether the delay was unreasonable.  Delays could be excused if there was no prejudice to the accused.  Under R. v. Jordan, prejudice is presumed once the delay has surpassed the presumptive ceiling.

The New Framework from Jordan

In R. v. Jordan, the Supreme Court criticized the Morin framework for being too unpredictable and complex, creating issues of interpretation in relation to prejudice, and lacking any prevention measures.  A new framework was required.

Limiting Unreasonable Delays

With the Canadian justice system as backlogged with court cases as it is, there has been repeated consternation expressed by Crown and defence counsel, both demanding change.  While Crown Attorneys do not want to see stays granted for potentially guilty accused persons incurring backlash from the public, defence counsel rightfully want to see their clients have their day in court in a timely fashion as guaranteed by the Charter. The Supreme Court in R. v. Jordan seeks to remedy these issues.

The R. v. Jordan case can be read here in its entirety.  The following quote deals with the presumptive ceiling for reasonable trial times.

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.”  

The R. v. Jordan case goes on to clarify which delays count towards the presumptive ceiling and which do not.  The principle is that delay caused by defence counsel does not count toward the presumptive ceiling.  Once the presumptive ceiling is surpassed, delay is presumed to be unreasonable.  The onus is then on the Crown to demonstrate that the delay is reasonable.

An exception to the presumptive ceilings are exceptional cases, which refers to circumstances outside of the Crown’s control.  There are two categories to exceptional cases.  The first involves cases where delay is unavoidable or unforeseen and also cannot be reasonably remedied by the Crown. The second category relates to complexity.  The Court gives examples of hallmarks of complexity such as voluminous disclosure and complicated legal issues, it notes, however, that a typical murder trial will not be considered under this category.

A stay for unreasonable delay may still be successful if under the presumptive ceiling.  The difference is that the burden of proof switches.  The onus is placed on the defence to prove that the delay is unreasonable.  The defence must show that it took initiative to speed the matter along, and that the delay resulted in the matter taking much longer than it should have.

What does this mean for those sitting in jail awaiting trial? It means that now there are clearer deadlines in place to protect the rights of the accused in relation to unreasonable delay.  Though not a bright line rule, Jordan is significantly clearer than Morin.  Defence lawyers should be diligent in ensuring their client’s rights under section 11(b) are not infringed.

As a Toronto criminal lawyer, Adam Weisberg has been successful in arguing that his clients’ charges be stayed for unreasonable delay.  In order to be successful in this regard, you should have a lawyer from the outset of your case that is protecting your interests and moving your case forward.  This is only one of the many tools Mr. Weisberg uses to ensure his clients receive the best results he can deliver. View Mr. Weisberg’s criminal defence successes here.

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