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Your charter right to a criminal trial within a reasonable time is now subject to new rules.

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Civil and commercial litigation

Since the 1982 constitutional reform, one of the rights guaranteed to all persons in Canada accused of a crime, as contained in section 11 (b) of the Canadian Charter of Rights and Freedoms, is as follows:

‘‘Any person charged with an offence has the right to be tried within a reasonable time.’’

Since the enactment of the Charter in 1982, our Courts, up to and including the Supreme Court of Canada, have on many occasions attempted to define what a ‘‘reasonable time’’ is. It is one of the bases of fair trials in our system that the delay from being charged to finally being tried should not be excessive. Over time, the memories of witnesses can become inaccurate. Prosecution and defence can lose track of the whereabouts of witnesses so that it may be difficult or impossible to send them a subpoena so that they can attend the trial to testify. Physical evidence can be lost of destroyed. Generally speaking, the stress and uncertainty for victims, accused and witnesses may cause undue hardship. Also, there is a public interest in seeing crimes speedily judged, and accused being either acquitted or punished in a timely manner.

On July 8, 2016, the Supreme Court of Canada issued a decision in the case of R. v. Jordan (2016 S.C.C. 27) which will have possibly far-reaching practical consequences on trials for criminal offences. In that decision, the Supreme Court, in effect, overruled a 24 year old precedent (R. v. Morin) to establish a new framework for judging whether delays in being tried are too long. For cases in a Superior Court, that is, before a judge and jury, or before a judge alone following a preliminary hearing, the new ‘‘presumptive ceiling’’ is 30 months from the charge to the actual or anticipated end of the trial. In provincial court, known in Quebec as Court of Quebec or the municipal courts, where an accused is tried by a judge alone without a preliminary hearing, the new presumptive ceiling is 18 months from the charge to the actual or anticipated end of the trial. Once the presumptive ceiling is exceeded, the crown prosecutor has the burden to reverse the presumption that the time frame is unreasonable on the basis of exceptional circumstances. Exceptional circumstances are outside the control of the crown prosecutor in that:

a) they are reasonably unforeseen or reasonably unavoidable; and
b) they cannot reasonably be remedied.

However, any delays that are attributable to the accused, or that have been waived by the accused, do not count toward the presumptive ceiling of 30 months. The exceptional circumstances will be the only basis upon which the crown prosecutor can discharge his burden to justify a delay that exceeds the presumptive ceiling. As well, the accused will no longer be required to prove that he has suffered prejudice because of the excessive delay.

Delays below these presumptive ceilings may also, in certain circumstances, not be reasonable. However, in such cases, the burden is then upon the accused to show that the delay was unreasonable. In particular, the accused will have to establish that he took meaningful steps that demonstrated a sustained effort to move the proceedings along. He will also have to show that the case took significantly longer than it should have.

The Supreme Court, however, was aware that there may be many cases currently in the criminal justice system that could be affected by this new ruling. The Supreme Court was sensitive to the fact that, after the
Askov decision from 1990, tens of thousands of prosecutions received stays of proceedings, and the court wanted to avoid a repeat of such drastic consequences from an abrupt change in the law. Therefore, a transitional exceptional circumstance might arise where charges were brought prior to the release of the Jordan decision on July 8, 2016. The crown prosecutor will have to satisfy the trial judge that the time that the case has taken is justified based upon the parties’ reasonable reliance on the law as it previously existed.

It should also be noted that this case was not a unanimous decision. In fact, the decision was 5 to 4. In the result of the case, the entire court agreed that the delay of 49.5 months in Mr. Jordan’s case was unreasonable. However, the minority of the Supreme Court found that it was unnecessary to completely change previous jurisprudence. In fact, a modified or revised approach would be sufficient. Furthermore, the minority of the Supreme Court was of the opinion that reasonableness cannot be reduced to numerical ceilings. In fact, the minority of the Supreme Court said that the approach of the majority exceeded the proper role of courts and that creating fixed or presumptive ceilings was a task better left to Parliament.

One effect that it seems the Supreme Court wishes to attain and which is a likely outcome of the Jordan decision is that crown prosecutors, judges, and the court system as a whole will have to be more proactive to ensure that cases proceed rapidly to trial. Inherent delays of the court system may no longer be tolerated. Rather, the bureaucracy of the court system must find solutions or risk having many charges thrown out because of excessive delays.

Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats inc.

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