R. v. Jordan
(Constitutional law — Charter of Rights — Right to be tried within reasonable time)
On appeal from a judgment of the British Columbia Court of Appeal (2014 BCCA 24) affirming a decision of Verhoeven J. (2012 BCSC 1735).
J was charged in December 2008 for his role in a dial-a-dope operation. His trial ended in February 2013. J brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to the delay. In dismissing the application, the trial judge applied the framework set out in R. v. Morin,  1 S.C.R. 771. Ultimately, J was convicted. The Court of Appeal dismissed the appeal.
Held (9-0): The appeal should be allowed, the convictions set aside and a stay of proceedings entered.
Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.:
The delay was unreasonable and J’s s. 11(b) Charter right was infringed. The Morin framework for applying s. 11(b) has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over-burdened trial courts. From a practical perspective, the Morin framework’s after the fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.
A new framework is therefore required for applying s. 11(b). This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives.
At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.
It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.
An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.
Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.
As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.
Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice under the Morin framework.
For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post-Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice.
The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.
In this case, the total delay between the charges and the end of trial was 49.5 months. As the trial judge found, four months of this delay were waived by J when he changed counsel shortly before the trial was set to begin, necessitating an adjournment. In addition, one and a half months of the delay were caused solely by J for the adjournment of the preliminary inquiry because his counsel was unavailable for closing submissions on the last day. This leaves a remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30 months in the superior court. The Crown has failed to discharge its burden of demonstrating that the delay of 44 months (excluding defence delay) was reasonable. While the case against J may have been moderately complex given the amount of evidence and the number of co-accused, it was not so exceptionally complex that it would justify such a delay.
Nor does the transitional exceptional circumstance justify the delay in this case. Since J’s charges were brought prior to the release of this decision, the Crown was operating without notice of the new framework within a jurisdiction with some systemic delay issues. But a total delay of 44 months (excluding defence delay), of which the vast majority was either Crown or institutional delay, in an ordinary dial-a-dope trafficking prosecution is simply unreasonable regardless of the framework under which the Crown was operating. Therefore, it cannot be said that the Crown’s reliance on the previous state of the law was reasonable. While the Crown did make some efforts to bring the matter to trial more quickly, these efforts were too little and too late. And the systemic delay problems that existed at the time cannot justify the delay either. Much of the institutional delay could have been avoided had the Crown proceeded on the basis of a more reasonable plan by more accurately estimating the amount of time needed to present its case. To the extent that the trial judge held that this delay was reasonable, he erred.
All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years. Broader structural and procedural changes, in addition to day to day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.
Per McLachlin C.J. and Cromwell, Wagner and Gascon JJ.:
This Court’s jurisprudence for dealing with alleged breaches of s. 11(b) of the Canadian Charter of Rights and Freedoms over the last 30 years supplies a clear answer to this appeal. Striking out in the completely new direction adopted by the majority is unnecessary. A reasonable time for trial under s. 11(b) cannot and should not be defined by numerical ceilings, as the majority concludes.
The right to be tried in a reasonable time is multi factored, fact sensitive, and case specific; its application to specific cases is unavoidably complex. The relevant factors and general approach set out in R. v. Morin,  1 S.C.R. 771, respond to these complexities. With modest adjustments to make the analysis more straightforward and with some additional clarification, a revised Morin framework will continue to ensure that the constitutional right of accused persons to be tried in a reasonable time is defined and applied in a way that appropriately balances the many relevant considerations. In order to do so, the Morin considerations should be regrouped under four main analytical steps.
First, the accused must establish that there is a basis for the s. 11(b) inquiry. The court should look to the overall period between the charge and the completion of the trial to determine whether its length merits further inquiry.
Second, the court must determine on an objective basis what would be a reasonable time for the disposition of a case like the one under review — that is, how long a case of this nature should reasonably take. The objective standard of reasonableness has two components: institutional delay and inherent time requirements of the case. Both of these periods of time are to be determined objectively. The acceptable period of institutional delay is the period that is reasonably required for the court to be ready to hear the case once the parties are ready to proceed, and is determined in accordance with the administrative guidelines for institutional delay set out by this Court in Morin: eight to ten months before the provincial courts and six to eight months before the superior courts. These guidelines set some rough limits on the point at which inadequacy of state resources will be accepted as an excuse. The guidelines should not be understood as precluding allowance for any sudden and temporary strain on resources that cause a temporary congestion in the courts. The inherent time requirements of a case, on the other hand, represent the period of time that is reasonably required for the parties to be ready to proceed and to conclude the trial for a case similar in nature to the one before the court, and are to be determined on the basis of judicial experience, supplemented by submissions of counsel and evidence. In estimating a reasonable time period, the court should also take into account the liberty interests of the accused.
Third, the court must consider how much of the actual delay in the case counts against the state. This is done by subtracting the periods attributable to the defence, including any waived time periods, from the overall period of delay. When the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than mere acquiescence in the inevitable, and that it meets the high bar of being clear, unequivocal, and informed acceptance. Delay resulting from unreasonable actions solely attributable to the accused must also be subtracted from the period for which the state is responsible, such as last-minute changes in counsel or adjournments flowing from a lack of diligence. It is also necessary to subtract from the actual delay any periods that, although not fairly attributable to the defence, are nonetheless not fairly counted against the state, including unavoidable delays due to inclement weather or illness of a trial participant.
Fourth, the court must determine whether the actual period of time that fairly counts against the state exceeds the reasonable time by more than can be justified on any acceptable basis. Where the actual time exceeds what would have been reasonable for a case of that nature, the result will be a finding of unreasonable delay unless the Crown can show that the delay was justified. Even substantial excess delay may be justified and therefore reasonable where, for example, there is a particularly strong societal interest in the prosecution proceeding on its merits, or where the delay results from temporary and extraordinary pressures on counsel or the court system. However, it does not follow that in these conditions the excess period is invariably justified. The accused still may be able to demonstrate actual prejudice. Although actual prejudice need not be proved to find an infringement of s. 11(b), its presence would make unreasonable (in the particular circumstances of the case) a delay that might otherwise be objectively viewed as reasonable. As a result, justification may be found to be lacking.
Under this revised Morin framework, any delay in excess of the reasonable time requirements and any actual prejudice arising from the overall delay must be evaluated in light of societal interests: on one hand, fair treatment and prompt trial of accused persons and, on the other, determination of cases on their merits. If there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an acceptable basis upon which exceeding the inherent and institutional requirements of a case can be justified.
This approach is a slight reorientation of the Morin framework because the focus is more explicitly on the period of delay which exceeds what would have been reasonable. But there is no change in principle.
Applying these four steps of the revised Morin framework in this case, J’s constitutional right to be tried within a reasonable time was violated. The 49.5-month delay from the charges to the end of the scheduled trial date is sufficient to trigger an inquiry into whether the delay is unreasonable. There were 10.5 months of inherent delay and 18 months of institutional delay. These findings make it appropriate to conclude that the reasonable time requirements for a case of this nature were 28.5 months. The case in fact took 49.5 months. The difference is 21 months. Of that, 4 months are attributable to the defence. The rest ― a period of 17 months — counts against the state. In other words, this case took almost a year and a half longer than what would be a reasonable period to prosecute a case of this nature. This is not a close case. The time to the end of trial greatly exceeds what would be a reasonable time to prosecute a similar case. While there are societal interests in the trial on the merits of the serious drug crimes alleged against J, these cannot make reasonable the grossly excessive time that it took society to bring him to trial.
In contrast, the majority’s new framework is not an appropriate approach to interpreting and applying the s. 11(b) right, for several reasons. First, the new approach reduces reasonableness to numerical ceilings. Reasonableness cannot be judicially defined with precision or captured by a number. As well, the majority’s judicially created ceilings largely uncouple the right to be tried within a reasonable time from the bedrock constitutional requirement of reasonableness, which is the core of the right.
Moreover, this approach unjustifiably diminishes the right to be tried within a reasonable time. When the elapsed time is below the ceiling, an accused would have to show not only that the case took markedly longer than it reasonably should have but also that he or she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. This requirement has no bearing on whether the delay was unreasonable.
The majority’s approach also exceeds the proper role of the Court. Creating fixed or presumptive ceilings is a task better left to legislatures. The ceilings place new limits on the exercise of the s. 11(b) right to a trial within a reasonable time for reasons of administrative efficiency that have nothing to do with whether the delay in a given case was or was not excessive. This is inconsistent with the judicial role.
As well, the ceilings have no support in the record in this case. What evidence there is in the record suggests that it would be unwise to establish these sorts of ceilings. For the vast majority of cases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist and are more likely to feed such a culture.
The majority’s approach also risks negative consequences for the administration of justice. The presumptive ceilings are unlikely to improve the pace at which the vast majority of cases move through the system. As well, if this new framework were applied immediately, the majority’s transitional provisions will not avoid the risk of thousands of judicial stays.
Moreover, the increased simplicity which is said to flow from the majority’s new framework is likely illusory. Even if creating ceilings were an appropriate task for the courts and even if there were an appropriate evidentiary basis for them, there is little reason to think these ceilings would avoid the complexities inherent in deciding whether a particular delay is unreasonable. The majority’s framework simply moves the complexities of the analysis to a new location: deciding whether to rebut the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.
Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice.
Joint reasons for judgment by Moldaver, Karakatsanis and Brown JJ. (Abella and Côté JJ. concurring)
Reasons concurring in the result by Cromwell J. (McLachlin C.J. and Wagner and Gascon JJ. concurring)
Neutral citation: 2016 SCC 27
Docket number: 36068
R. v. Williamson
(Constitutional law — Charter of Rights — Right to be tried within reasonable time)
On appeal from a judgment of the Ontario Court of Appeal (2014 ONCA 598), setting aside a decision of Tranmer J. (2011 ONSC 5930).
W was charged in January 2009 for historical sexual offences against a minor. His trial ended in December 2011. W applied for a stay of proceedings due to the delay. The trial judge dismissed the application and W was convicted. The Court of Appeal allowed the appeal and entered a stay.
Held (6-3): The appeal should be dismissed.
Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.:
Applying the new framework established in the companion appeal of R. v. Jordan, 2016 SCC 27, W’s right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was infringed.
The delay between the charges and the end of trial was approximately 35.5 months. W did not waive any of this delay, and solely caused only one and a half months of it. Subtracting this defence delay leaves 34 months. This is still above the 30 month presumptive ceiling established in Jordan for cases going to trial in the superior court. The delay is therefore presumptively unreasonable. Here, the Crown has failed to discharge its burden of showing that the delay is reasonable. The record does not disclose any delay caused by discrete, exceptional circumstances, and the case does not remotely qualify as exceptionally complex.
In addition, since W was charged before the release of Jordan, the transitional exceptional circumstance established in Jordan may apply. As stated in Jordan, the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied.
While this is a close case, the transitional exceptional circumstance does not apply. In other words, the Morin framework cannot justify the nearly three years it took to bring W to trial on relatively straightforward charges. Although W did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay, and W was reasonably proactive in attempting to move the matter along. Therefore, while the crimes committed by W are very serious, the balance weighs in favour of his interests in a trial within a reasonable time, over the societal interest in a trial on the merits. At nearly three years, this straightforward case took far longer to try than it should have.
Per McLachlin C.J.:
Applying the revised Morin framework (R. v. Morin,  1 S.C.R. 771) proposed by the minority in R. v. Jordan, 2016 SCC 27, the Court of Appeal did not err in entering a stay of proceedings.
Per Cromwell, Wagner and Gascon JJ. (dissenting):
This is a close case of excessive delay that is not clearly unreasonable. This is the sort of case in which a balancing of interests is critical in assessing unreasonable delay. Even in such a case, the new framework developed by the majority in R. v. Jordan, 2016 SCC 27, for determining whether a person’s right under s. 11(b) of the Canadian Charter of Rights and Freedoms to a trial within a reasonable time has been violated, does not allow for consideration of the strong societal interest in resolving the serious charges against W on their merits. The new framework does not permit the sort of balancing of interests that is inherent in the concept of reasonableness.
A reasonable period for this type of case to be prepared and tried was assessed at seven months. The reasonable institutional delays for both levels of court totalled 18 months, based on the upper end of the range under the guidelines in R. v. Morin,  1 S.C.R. 771. The reasonable time requirements of this case were therefore 25 months. The case in fact took 35.5 months. Five of those months should not be counted against the state: two months were fairly attributed to the defence and three months resulted from a scheduling issue at the preliminary inquiry stage. The difference between the 30.5 months which count against the state and the 25 months reasonably required for a case of this nature exceeds the reasonable time requirements of a case like this one by 5.5 months.
While this is not an insignificant period of time, it is not clearly unreasonable and the final balancing of relevant factors is therefore critical. For the trial judge, that balancing resulted in a finding that the delay was not unreasonable. He found that there was no actual prejudice, and there was no basis for the Court of Appeal to take a different view of this matter; the concept of “inferred prejudice” is not a useful one and, in any event, the trial judge’s analysis of this issue under the then existing law contained no error. The trial judge also found that there was a very high societal interest in having W tried on the merits for these very serious charges. This is not to say that the societal interest in resolution on the merits can ever justify what is otherwise a clearly unreasonable delay. But in a case like this one, in which the delay is excessive but not so long as to be clearly unreasonable, it is one of the considerations that should be taken into account. The jurisprudence has been clear that societal interests underlie the concept of reasonableness. The trial judge also accepted the impact of the temporary and exceptional pressure on the dockets of both the provincial court and the superior court at the relevant time. This sort of pressure is a factor that should result in the Morin guidelines being applied flexibly.
These are relevant considerations and there was no error in the judge’s weighing of them. Taking all of these considerations into account, there was also no error in the trial judge’s ultimate conclusion that the delay here was not unreasonable. In this case, staying these charges would be more publicly disreputable for the administration of justice than tolerating an inordinate trial delay. The judgment of the Court of Appeal should therefore be set aside and the convictions entered at trial reinstated.
Joint reasons for judgment by Moldaver, Karakatsanis and Brown JJ. (Abella and Côté JJ. concurring)
Reasons concurring in the result by McLachlin C.J.
Dissenting reasons by Cromwell J. (Wagner and Gascon JJ. concurring)
Neutral Citation: 2016 SCC 28