Court sets new framework for the determination of undue delay in trial

Supreme Court of Canada: While hearing an appeal for stay of proceedings due to undue delay as under S. 11(b) of the Canadian Charter of Rights and Freedoms, the Court in by a majority view put out a new framework of jurisprudence for the application of the provisions under the said section for achieving reasonably prompt justice.

The Court observed that the framework set out in R. v. Morin [1992] 1 SCR 771  had given rise to both doctrinal and practical problems, contributing to the culture of delay and complacency towards it.

The framework was based on factors constituting the length of the delay, the defence waiver, the reason for the delay and ‘prejudice’ to the accused’s interests in liberty, security and a fair trial. The framework was too unpredictable, confusing and complex and did not encourage participants in the justice system to take preventive measures to address inefficient practices and resourcing problems.

In the new framework set out by the Majority view, a presumptive ceiling of 18 months for cases tried in the provincial court and 30 months for the cases in the superior court, beyond which delay is presumed to be unreasonable. It was held that the delay attributed to or waived by the defence would be subtracted by the total delay. However, the burden would be on the Crown to prove reasonableness of the delay once the ceiling is exceeded on the basis of exceptional circumstances, or a stay of the proceedings shall follow. In the event where the ceiling has not been exceeded the burden of proving unreasonableness of delay shall lie on the defence. It was held that in regard to cases currently in the system the new framework would be applied contextually to avoid thousands of proceedings been stayed due to abrupt change.

The dissenting minority opinion of the Court, held that the new framework is unnecessary and the 30 year old jurisprudence would be enough in dealing with breach of s. 11(b) of the Charter. It was also maintained that a reasonable time for a trial should not be defined by numerical ceilings and that it diminishes the right to be tried within reasonable time. Moreover, the task of fixing presumptive ceilings should rest with the legislature and not the Courts.

However, in the context of the present litigation, a total delay of 49.5 months in a case of dial-a-dope operation of no exceptional complexity, was found unreasonable regardless of framework adopted. Hence, the appeal was allowed, the conviction was set aside and a stay of proceedings was entered. [R. v. Jordan (Barrett Richard Jordan v. Her Majesty the Queen), 2016 SCC 27, decided on 8 July 2016]

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