To casual observers of criminal law, it’s often forgotten that the defence of a criminal charge goes beyond the question of whether the defendant committed the crime. Every person charged has the right to argue that their charges should be stayed (i.e. “thrown out”) or that certain evidence should be excluded on the basis that there was a violation of their Charter rights.
One of the most common situations in which someone will argue for a stay of proceedings is when their right to a trial within a reasonable amount of time has been breached. Simply put, if you can show that there was an unreasonable amount of time between your charges being laid and your trial commencing, you can argue that your charges shouldn’t proceed. Two weeks ago, the Supreme Court of Canada released their decision in R. v. Jordan. The case effectively rewrites the framework that courts rely upon to resolve this question.
The appeal involved nine different lawyers from three different provinces and was heard over a full day in October 2015. It attracted more attention than other appeals because the court was being asked to revisit the legal test for this issue that had been created by the court 25 years ago in the cases of R. v. Askov and R. v. Morin. The case was decided by slim majority of five judges to four, whereas many of the Supreme Court’s decisions are unanimous.
Before R. v. Jordan, it was up to the defendant to argue that the length and circumstances of the delay in their trial being heard gave rise to conditions that rendered the delay unreasonable. Generally, these conditions included the general disruption and anxiety of being required to await a trial. In certain cases, where the defendant could show that they suffered prejudice that was more acute in their circumstances (e.g. where someone suffers from anxiety or depression), courts have granted stays for shorter delays.
In the majority decision, Justices Moldaver, Karakatsanis and Brown departed from the previous analysis by defining particular periods of delay, after which a charge should presumptively be stayed. In other words, they set fixed time limits after which it would no longer be required for a defendant to show why their charges should be stayed, but it would be required for the Crown to show why they shouldn’t. In cases where there is a trial in the Ontario Court of Justice, a charge should now be stayed if a trial has not taken place within 18 months. For trials in the Superior Court of Justice, which are generally preceded by a preliminary inquiry (a proceeding to determine whether the Crown has shown evidence to satisfy the necessary elements of the offences charged), the period of time is now 30 months. An important caveat to these time periods is that any delay that the defendant either contributes to (e.g. adjourning trial at the last minute due to a change in counsel) or agrees to will not be counted in the total. Furthermore, the court made clear that these time periods are to be considered “ceilings” after which charges would presumptively be stayed, but it left open the possibility of defendants bringing applications to stay charges after shorter periods of time, if the circumstances warranted it.
What might be the most remarkable feature of the decision, other than the law that it creates, is the majority’s rebuke of the sluggishness in which criminal cases have been progressing through the system. They wrote, “…[A] culture of complacency towards delay has emerged in the criminal justice system… Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to every increasing delay.”
Many of my clients are shocked when I advise them of how long it’s likely to take for them to have a trial. A delayed trial date can have significant repercussions, especially when a conviction is likely to result in a jail sentence. Just imagine waiting 30 months for your trial to be heard, knowing that you are likely to be going to jail for several years if you are convicted. It becomes almost impossible to make any significant life decisions or long term plans. Even for offences where no jail term is being sought, the consequence of a conviction is a significant one – it can affect whether someone will be eligible for certain employment or whether they can cross the border.
With their decision, the Supreme Court has responded to a valid and pressing concern from the public. As with any significant development in the law, the true effect of this case will depend on how it is implemented by the judges that hear these applications. No matter how this occurs, the decision will unquestionably remind all justice system participants of the words of the Charter right in question: “Any person charged with an offence has the right to be tried within a reasonable time.”
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
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