Unreasonable Delays in Criminal Trials: New Legal Framework

Many criminal proceedings have been stayed as a result of unreasonable delays arising during trials. According to section 11(b) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right to be tried within a reasonable time.

The purpose of that right is not only to ensure protection of the accused’s individual rights to liberty, security and a fair trial. It is also to protect society’s interests by ensuring that criminal cases are ruled upon quickly and fairly.

Since the Charter came into effect in 1982, section 11(b) has often been the subject of interpretation by the Supreme Court of Canada. Until the R. v. Jordan and R. v. Williamson rulings were delivered on July 8, 2016, the framework used by Canadian courts was the one developed in R. v. Askov (1990) and R. v. Morin, (1992).

This HillNote summarizes the law that has been used since the early 1990s and describes the new framework set out by the Supreme Court in the Jordan ruling.

The origin of nearly three decades of case law: Askov and Morin

Since Askov and Morin, the Supreme Court has recognized that there is a limit to the extent of institutional delay that can be tolerated, though it acknowledged that some delays are inherently part of the justice system and will inevitably slow things down.

All time frames are based on the period from the time charges are laid until the end of the trial. The Supreme Court subsequently specified in R. v. MacDougall that section 11(b) also extends to sentencing. A series of criteria and guidelines have been established to determine whether a delay amounts to a violation of an accused’s section 11(b) rights. One of those criteria is the prejudice suffered by the accused.

In Askov, the Court deemed unreasonable a delay of almost two years between the end of the preliminary hearing and the beginning of the trial. On the other hand, in Morin, a delay of 14.5 months between the accused’s arrest and her trial was not found to be unreasonable because the Court determined that little or no prejudice could be inferred from the delay.

Toward a change in culture: Jordan

The matter of time frames arose again when the Supreme Court ordered stays in the following three decisions rendered in June and July 2016: R. v. Vassell, and companion cases R. v. Jordan and R. v. Williamson.

In Jordan, the Supreme Court (in a 5-4 decision) established a new framework to encourage all participants in the criminal justice system to cooperate “in achieving reasonably prompt justice” (para. 5).

The Supreme Court established ceilings as part of the new framework. Delays that go beyond those ceilings (from the charges to the actual or anticipated end of the trial) will be deemed presumptively unreasonable. The prescribed ceilings are:

  • 18 months for cases going to trial in a provincial court;
  • 30 months for cases going to trial in a superior court (or those going to trial in a provincial court after a preliminary inquiry).

However, the Crown can rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances must lie outside the Crown’s control in that:

  1. they are reasonably unforeseen or reasonably unavoidable; and
  2. they cannot reasonably be remedied.

Exceptional circumstances fall into two categories:

  1. discrete events (for example, an illness or unexpected event at trial); and
  2. particularly complex cases (for example, voluminous disclosure or charges covering a long period of time).

It is interesting to note that the majority of judges did not comment on how these ceilings apply to the time frame for sentencing (footnote #2). What is more, as in the previous framework, delays attributable to or waived by the defence do not count towards the presumptive ceiling.

However, the majority specified that trial judges should not calculate the delay by parsing each day or month to determine whether each step was reasonably required. Instead, they should adopt a bird’s‑eye view of the case (para. 91).

The minority criticized the fact that the majority is casting aside over 25 years of case law by imposing presumptive ceilings (para. 302).

If the total delay falls below the presumptive ceiling, then the onus 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 (para. 48).

It is important to note that this new framework does not apply to cases currently before the courts. The Supreme Court indicated that this is to avoid repeating the post-Askov situation, where about 50,000 charges were stayed. The transitional scheme differs depending on whether the delay goes beyond the ceiling.

Where the delay exceeds the ceiling, a transitional exceptional circumstance will apply if the Crown satisfies the Court that the time the case has taken is justified based on the law as it previously existed. This requires a contextual assessment (see paras. 96 and 97).

If the delay falls below the ceiling, the defence must demonstrate the same criteria under the new scheme. However, the defence does not have to demonstrate that it took the initiative to expedite matters for the period of delay preceding Jordan (para. 99).

Implications for the future

It is difficult to determine the implications for the future. Although, in Jordan, the majority of judges set out a transitional scheme, the minority suggested that it could result in thousands of cases being stayed (paras. 282-285).

Some commentators worry that, because of the new scheme, complex offences will no longer be tried in future. They have also indicated that it will be difficult to apply the new presumptive ceilings. However, most recognize that delays in the system are a problem that needs to be addressed.

In conclusion, it will be seen in the coming months how the courts will interpret these new guidelines and what impact Jordan will have on criminal trials in Canada.

In the meantime, the Standing Senate Committee on Legal and Constitutional Affairs is continuing its study of delays in Canada’s criminal justice system. An interim report was published on 12 August 2016; the committee’s final report should be tabled during the 42nd Parliament.

Additional resources

Canadian Bar Association, “Supreme Court sets ceilings on trial delay,” National Magazine.

Fine, Sean. “Supreme Court updates guidelines on ensuring right to timely trial,” The Globe and Mail, July 8, 2016.

Proulx, Boris. “La justice québécoise sous pression,” Le Devoir, July 11, 2016. [FRENCH ONLY]

Senate Standing Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada, August 2016.

Yewchuck, Drew. “Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time”, The University of Calgary Faculty of Law Blog, July 14, 2016.

Author: Maxime Charron-Tousignant, Library of Parliament