Section 11(b) - Trial in a Reasonable Time

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”.