Recently, the Supreme Court of Canada decided a trio of significant precedents for determining unreasonable delay in criminal trials: R v Vassell, 2016 SCC 26, 130 WCB (2d) 597 [R v Vassell], R v Jordan, 2016 SCC 27, 130 WCB (2d) 596 [R v Jordan], and R v Williamson, 2016 SCC 28, 130 WCB (2d) 600 [R v Williamson]. The right to be tried for a criminal offence within a reasonable time is protected by s 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. In the past, this had been determined by applying the R v Morin, [1992] 1 SCR 771 at para 26, 12 CR (4th) 1 [R v Morin], framework which balances four factors in order to determine whether the delay was unreasonable. R v Jordan overrules the R v Morin framework and replaces it with a strict timeline that is supported and fleshed out by R v Vassell and R v Williamson.
The Framework
The framework developed in R v Jordan is dependent on the concept of the presumptive ceiling. The presumptive ceiling prescribed by the Supreme Court of Canada refers to a time limit for criminal cases from the charge to the actual or anticipated end of trial. If the presumptive ceiling time limit is exceeded, then the delay will be presumptively unreasonable (R v Jordan at para 49). Applicable across Canada, the presumptive ceiling is 18 months for provincial court and 30 months for superior courts.
In situations where the presumptive ceiling is exceeded, the burden shifts to the Crown to prove that there were exceptional circumstances outside of the Crown’s control that necessitated having a longer trial. To meet this test, the exceptional circumstances must be: (1) reasonably unforeseen or reasonably unavoidable, and (2) cannot be reasonably remedied (R v Jordan at para 69). The SCC further clarifies this test by considering how the nature of the exceptional circumstance plays a role in determining delay. If the delay arises from a discrete event, then the delay reasonably attributable to that event is subtracted from the total time calculation. If the exceptional circumstance arises due to the complexity of the case, then delay is reasonable. Proving that there was an exceptional circumstance that was of a discrete or complex nature is the only basis on which the Crown can justify exceeding the presumptive ceiling (R v Jordan at para 81).
If the defence seeks an 11(b) application when the time of the trial is still below the presumptive ceiling, then the burden is on the defence to demonstrate that the delay is unreasonable. In order to do this, the defence must meet two qualifications. First, the defence must show that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings. Second, the defence must demonstrate to the court that the case took markedly longer than it reasonably should have taken (R v Jordan at para 82). This is not a matter of precise timelines, but of the trial judge’s assessment based on contextual factors such as complexity, jurisdiction, and their own experience.
The Impact on the Crown, Defence, and the Courts
In addition to determining the presumptive ceiling, R v Jordan also clarifies the responsibility borne by the Crown, the defence, and the court. The Crown bears a significant responsibility in ensuring that trials are held within the presumptive ceiling limit. In R v Vassell, the court firmly emphasized that the Crown must take an active role in ensuring that trials are completed within a reasonable time. Specifically, this case states that, “the Crown cannot close its eyes to the … inability of the system to provide earlier dates” (para 7), which indicates that the Crown bears a duty to mitigate systemic delays (R v Jordan at para 75). However, the Crown is not the only party responsible for ensuring the trial meets the presumptive ceiling timeline.
R v Jordan makes it clear that the actions of the defence are part of the solution (para 113). Although legitimate actions taken by the defence do not constitute delay, delays waived by the defence or caused solely by the defence will not contribute to the calculation of the presumptive ceiling (para 66). The reasoning behind this measure is that, “[s]ection 11(b) was not intended to be a sword to frustrate the ends of justice” (R v Jordan at para 21), and should not be used as a defence mechanism by counsel.
In addition, R v Jordan discusses how the courts must also play a significant role in ensuring the timely conclusion of trials (para 114). Trials do not take place in a vacuum (para 43), and the delays from one trial have a ripple effect throughout the justice system and contribute to the administrative delays that plague many jurisdictions. Courts must remain aware of the practical results of delays and therefore be conservative in their allowance of delays in trials (para 114).
Incorporating the Framework into the Current System
The new presumptive ceiling framework in R v Jordan applies to cases that are currently in the system, with two exceptions. The first exception is where there is a transitional exceptional circumstance for a case that exceeds the presumptive ceiling (R v Jordan at para 96). As demonstrated in R v Williamson, the transitional exceptional circumstance applies when the Crown can demonstrate that the time taken by the case would have been reasonable based on the previous law of the R v Morin factors. Of particular importance, a finding of guilt has absolutely no bearing on determining the outcome of the unreasonable delay application (R v Williamson at para 32). The second exception is for cases that fall below the presumptive ceiling. In such cases, R v Jordan holds that it is not necessary for the defence to have taken initiative to expedite matters for the period of delay preceding the decision in R v Jordan, because it was not required by R v Morin; however, defence initiative may be a persuasive argument in showing the delay was unreasonable (R v Jordan at para 99).
In addition, assessments of both exceptions are to be conducted in a contextual manner based on factors relevant to the particular case such as complexity of the case, behaviour of the Crown, and institutional delay issues in the trial jurisdiction.
Closing thoughts
Although these three cases focus on different applications of the law of unreasonable delay in criminal cases, they each focus particularly on increasing the Crown’s responsibilities in ensuring that the trial moves forward in a timely manner. R v Vassell requires the Crown to take a more active role in ensuring that cases are brought to trial in a reasonable time, and R v Jordan and R v Williamson mirror this theme. Given the significance of these decisions, it is likely we will see further developments in the case law relating to unreasonable delay in the future.
