How many court-drama shows feature the well-worn plot of offence, investigation, charge, trial, and conviction/acquittal, all somehow miraculously fitting into an hour-long (or, more accurately, 43-minute-long) program?
Anyone who has any familiarity with our court system, even to fight a simple traffic ticket, knows how unrealistic these programs are. Getting one’s day in court takes time. Often, a lot of time.
The Supreme Court of Canada has, once again, taken notice of the exceedingly long delays to get to trial and has created a new approach to an accused’s s. 11(b) Charter right to be “tried within a reasonable time,” with the hope of forcing nation-wide institutional changes. The Court has recognized the utmost importance of the right to be tried within a reasonable time, noting that “Timely justice is one of the hallmarks of a free and democratic society,” especially in criminal law matters (see R. v. Jordan, 2016 SCC 27 at para. 1).
The facts of R. v. Jordan, 2016 SCC 27 included somewhat extreme delays but the SCC considered those delays illustrative of the system and the problems with the existing legal framework for the right to be tried within a reasonable time, which, together “have fostered a culture of complacency within the system towards delay” (see para. 4).
In the case, Mr. Barrett Richard Jordan was arrested in December 2008 and charged with various offences related to drug trafficking (in British Columbia). He remained in pre-trial custody until February 2009 when he was released on restrictive bail conditions (essentially house arrest). The preliminary inquiry took a year to complete and concluded two-and-a-half years after Mr. Jordan was charged. Trial dates, as is not uncommon, were hard to come by; the trial was set for September 2012 and it wrapped up in February 2013, with a conviction being entered against Mr. Jordan.
Nearly 50 months – more than four years or more than two elephant gestation periods of 22 months each – elapsed from the time Mr. Jordan was charge to the time he was convicted. During all of that time, he was in pre-trial custody, living under restrictive conditions, and anxiously dealing with the stress and stigma of an ongoing criminal court case.
The Supreme Court, in a 5:4 ruling, had some strong remarks about the state of delays and the importance of prompt justice, noting that, “the system has lost its way” (see para. 29). The majority acknowledged that, “Our system … has come to tolerate excessive delays” before asserting that, “A change of direction is therefore required” (see paras. 4-5). The majority went on to add, “this Court has a role to play in changing courtroom culture and facilitating a more efficient criminal justice system” (see para. 45).
The majority plans to achieve a culture change and a more efficient criminal justice system through a new and ambitious framework for determining whether someone’s right to be tried within a reasonable time has been breached. The main thrust of the new framework is a presumptive ceiling on the time it should take to bring an accused to trial. Matters that are heard in provincial court are presumptively unreasonably delayed 18 months past the time the charge was laid; cases going to superior courts are presumptively unreasonably delayed 30 months after charges were laid. Delays caused by the defence, however, must be excised from this calculation.
The Crown may rebut the presumption by establishing exceptional circumstances – which “is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling” (see para. 81, emphasis in original). The seriousness or the gravity of the offence, chronic institutional delays, and lack of prejudice to the accused are not factors that can justify breaching the presumptive ceilings (see para. 81). Only circumstances that are outside of the Crown’s control – by being reasonably unforeseen or unavoidable – and subsequent delays that can’t reasonably be remedied can rebut the presumptive ceilings (see para. 69).
For cases already in the system (or any case where charges were laid before the decision was released, on July 8, 2016), a transition framework applies. Where the delay already exceeds the presumptive ceilings, trial judges are instructed to conduct contextual assessments to determine if the delay is unreasonable by considering factors that include reasonable reliance on the old s. 11(b) law, the complexity of the case, and whether there are significant institutional issues in the jurisdiction, amongst others (see paras. 95-98). The majority deliberately refrained from granting mass stays of proceedings for existing institutional delays and noted that previously reasonable delays won’t automatically become unreasonable under the new transitional framework (see paras. 96-102).
The new s. 11(b) framework will not have many immediate effects on current cases and by no means will it create instant – or particularly speedy – justice. That said, the presumptive ceilings for unreasonable delay introduce a significant degree of predictability and certainty into how long a given criminal matter will take to complete. New court culture and responsibility for delays by many players – including police, prosecutors, court administration, and judges – should, indeed, hopefully lead to more timely trials and “reasonably prompt justice”, a marked improvement from our current status quo – even if a trial will continue to seem more like a mini-series than a single court-law TV show.
by Katrina Trask