Section 11(b) of the Charter of Rights & Freedoms guarantees the right to be tried within a reasonable time. The purpose of this right is to ensure accused parties are not subject to lengthy procedural delays. Justice Moldaver of the Supreme Court of Canada explained in R v. Jordan that maintaining S. 11(b) rights “ensures that the system functions in a fair and efficient manner”, and ultimately, furthers the interests of justice.
The Supreme Court of Canada set out a new framework in R. v Jordan, for evaluating the net time it takes for a case to proceed through the courts. Cases that exceed the presumptive ceiling without justification result in an unreasonable delay, and as a result, a violation of the respective individual’s section 11(b) rights. This new framework ensures some degree of certainty in managing the party’s expectations regarding the duration of the process. Many legal commentators say that this new framework ensures cooperation between the courts, and counsel to ensure the protection of an accused’s section 11(b) rights, and further, minimizes the “culture of complacency” regarding delay within the system. There are tools available to ensure there is no unreasonable delay, for example; case management Crowns and or Judges may be appointed, or special disclosure teams or trial teams can be assigned.
Presumptive ceilings are a measurement of time the court has deemed an appropriate amount of time for a matter to proceed through the courts. The “clock” starts running on the date the information is sworn in court (the start date). The “Net Time” is the calculation between the start date and the anticipated conclusion of the trial. For Provincial matters, the presumptive ceiling is 18 months, and for Superior Court matters the ceiling is 30 months.
Defence delay will be subtracted from the “Net Time” calculation. Legitimate actions by the defence will not count as delay, such as: waiting for essential core disclosure and ensuring adequate preparation time. The defence can be responsible for the delay in two situations; (1) where defence waives delay, either a partial or full wavier, and (2) delay that is caused solely by the conduct of the defence. Examples of defence delay include: bringing frivolous applications, and a lack of due diligence in making timely disclosure requests.
If the net time is under the presumptive ceiling, the defence has the responsibility of demonstrating the delay was unreasonable. If the time exceeds the presumptive ceiling, the Crown must establish that there was an exceptional circumstance(s) that led to the delay.
If the net time for a delay falls below the presumptive ceiling, the defence is responsible to demonstrate to the court that the delay is unreasonable by establishing that (1) the defence took meaningful steps that demonstrate a sustained effort to expedite proceedings and (2) the case took markedly longer than it reasonably should have.
If the net time exceeds the presumptive ceiling in bringing the case to trial, the Crown is responsible for justifying why the trial did not occur. The Crown can justify a delay in one of two ways: (1) unforeseen discrete events, and (2) complexity of the case. Unforeseen events must be circumstances beyond the control of the Crown. Examples of unforeseen events include: illness of a witness, lawyer or the judge, and court closure. If the crown is unable to justify the delay the case shall be stayed due to unreasonable delay.