Section 11(b) - Trial in a Reasonable Time

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	868
Page Categories:	[Constitutional Law], [Provincial Offenses]
Citation:	Section 11(b) - Trial in a Reasonable Time, CLNP 868, <6R>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2022/02/25

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R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631

B. The Presumptive Ceiling

[49] The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.[2] We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.[3] As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted.

[50] A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

[51] While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time. Contrary to what our colleague Cromwell J. asserts, we do not depart from the concept of reasonableness; we simply adopt a different view of how reasonableness should be assessed.

[52] In setting the presumptive ceiling, we were guided by a number of considerations. First, it takes as a starting point the Morin guidelines.[4] In Morin, this Court set eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court following an accused’s committal for trial. Thus, under Morin, a total of 14 to 18 months was the measure for proceedings involving both the provincial court and the superior court.

[53] Second, the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case. These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin. In this way, the ceiling takes into account the significant role that process now plays in our criminal justice system.

[54] Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.

[55] Fourth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice.

[56] We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.

[57] There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.

[58] Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework “reduces reasonableness to two numerical ceilings” (para. 254). As we will explain in greater detail, this is clearly not so. The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken. As our colleague acknowledges, pursuant to our framework, “the judge must look at the circumstances of the particular case at hand” in assessing the reasonableness of a delay (para. 301).

York (Regional Municipality) v. Tomovski, 2018 ONCA 57 (CanLII)

[7] In his decision, the provincial court appeal judge held, at para. 158, that the 18 month presumptive delay ceiling set out in R. v. Jordan was “too high to adequately protect Part I [of the POA] defendants’ constitutional right to be tried within a reasonable time.” At para. 149, he found “the appropriate presumptive ceiling for Part I proceedings is in the 13 to 15 month range” and applied a 14 month presumptive ceiling to this case. Nevertheless, the provincial court appeal judge found that Mr. Tomovski’s s. 11(b) Charter right was not breached because a significant portion of the delay was attributable to Mr. Tomovski. The provincial court appeal judge found the net delay was 10 months and 22 days. He allowed York’s appeal and ordered a new trial.

[19] This court can address the important question of the appropriate presumptive delay ceiling for Part I POA proceedings in another case in which the appeal is properly constituted.

[20] The motion for leave to appeal is dismissed. In dismissing this motion, I should not be understood as approving the provincial court appeal judge’s view that “the appropriate presumptive ceiling for Part I proceedings is in the 13 to 15 month range”.

Guan v. York (Regional Municipality), 2020 ONCJ 44 (CanLII)

[4] It was the position of the Appellants Zhaoping Guan, Cui-Huan Guan, Keith Chan and Tamir Salomon, that the presumptive ceiling for Highway Traffic Act offences is 13 months. In this submission they rely on the decision of my brother McInnes J. in R. v. Tomovski 2017 ONCJ 785 (Leave to Appeal dismissed 2018 ONCA 57).

[5] The Appellants Ching-Lan Ng, Qiu Hong, Ling Wang, and Weijie Zhang ask that I adopt the reasoning of my sister Greene J. in R. v. El-Nasrallah 2018 ONCJ 161 which, in their submission, suggests a presumptive ceiling for Highway Traffic Act cases of 12 months.

[6] The Respondent York Region argues that Jordan presumptive ceiling of 18 months applies to all Highway Traffic Act prosecutions, and relies on the decisions R. v. Debono [2019] O.J. No. 2099, R. v. Lok [2019] O.J. No. 2688, and Ontario (Superintendent of Financial Services) v. Dies 2018 ONCJ 641.

[17] For these reasons, I find that the 18 month ceiling from R. v. Jordan applies to each of these appeals. There is no dispute that each case took much less time than that to come to trial. The dismissals of the s. 11(b) Motions are therefore upheld.

R. v. Buoc, 2022 ONSC 1067 (CanLII)

[32] Towards the end of the trial, Mr. Buoc brought an application on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed, and the relief he sought was an order staying the proceedings. The application was dismissed; what follows are the written reasons for that dismissal.

[33] The applicable principles and framework to determine s.11(b) applications are set out in the Supreme Court of Canada decisions of R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R 659.

[34] I would summarize the essential governing principles or framework to be taken from the Jordan and Cody cases in the following manner:

a) There is a 30-month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the date that the accused is charged and ends with the actual anticipated end of the trial. If that time frame exceeds 30 months there is a presumption that the delay has become unreasonable: see Jordan, at paras. 46-47; Cody, at paras. 20, 24.

b) There is a three-step analysis to be used: first, calculate the delay; second, deduct from the total any delay waived by defence or caused by the conduct of the defence; and third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there were exceptional circumstances. If the Crown fails to do so, a stay must follow: see Jordan, at paras. 66-68; Cody, at paras. 21-24.

c) Defence waiver can be explicit or implicit. It must be clear and unequivocal; a complete understanding of the right and the effect of waiving the right must be demonstrated: see Jordan, at para. 61; Cody, at para. 27.

d) Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tactics designed to delay the matter, such as frivolous applications or requests; and defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by the Defence: see Jordan, at paras. 63-64; Cody, at paras. 29-30.

e) Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defence delay: see Jordan, at para. 65; Cody, at paras. 31-32.

f) Exceptional circumstances are those that are outside of the control of the Crown. They must be reasonably unforeseen or unavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into two categories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown and the court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered an exceptional circumstance: see Jordan, at paras. 69-81; Cody, at paras. 44-48, 63-64.

g) In cases that fall below the presumptive 30-month ceiling, stays will be rare and limited to the clearest of cases, the reason being that the ceiling “factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases”: Jordan, at para. 83. Jordan further indicated that stays of proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach: see Jordan at para. 101.

h) If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude than it should have: see Jordan, at paras. 298-99.

R. v. Dumpfrey, 2021 ONSC 7758 (CanLII)

[22] A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance of a stay of proceedings in criminal matters, appellate courts remind trial judges to ensure that such a remedy is used only as a last resort: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at p. 466. It is a right that is not to be taken lightly. A stay of proceedings has substantial ramifications not only for the applicants, but to the justice system as a whole when the state is found to have breached an accused’s fundamental Charter rights.

[23] As mentioned, the Court of Appeal in Coulter, at paras. 34-40, set out the following steps which the court is required to analyze for s. 11(b) motions:

a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;

b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;

c) Compare the Net Delay to the presumptive ceiling;

d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;

e) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);

f) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable;

g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

R. v. Kaur, 2021 ONSC 7519 (CanLII)

[39] There is no doubt that the pandemic created an existential crisis in the justice system that fundamentally altered the manner in which the court’s business is conducted. The spectre of closed or retrofitted courtrooms, zoom hearings, sombre accounts of cases of infections in court buildings, and proactive steps to reduce the risk of infection have collectively haunted the judicial landscape since March 2020. Additionally, the Ontario Court of Justice shut down on March 16, 2020, reopened in a limited capacity on July 6, 2020, and resumed full capacity in November. Thus, although the trial date in this case was set prior to the onset of the pandemic, the deleterious effects of the pandemic would have rendered any attempt to obtain an earlier trial date a futile exercise.

[40] That said, Jordan requires that it is only where the discrete exceptional event caused the period of delay that the delay must be subtracted from the total period of delay “for the purpose of determining whether the ceiling has been exceeded”: para. 75. The court in R. v. Schardt, 2021 ONSC 3143, at para. 68, similarly noted that:

[I]t is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay. The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling.

[41] In my view, the Covid-19 pandemic, if considered a discrete event, did not cause the delay in this case. To that extent, the trial judge did not err in failing to consider the pandemic as an exceptional circumstance that has relaxed the Jordan ceiling.