In a bold move, Justice Moldaver, writing for the majority of the Supreme Court, has radically altered the analysis for trial courts deciding whether delays in completing trials are unreasonable. In a rare move, the Court departed from precedent. Justice Moldaver wrote that the traditional framework developed in the 25 years since Askov, [1990] 2 S.C.R. 1199, “has given rise to both doctorial and practical problems, contributing to a culture of delay and complacency towards it”.

The guidelines that have now been soundly rejected were often referred to as the Moria guidelines. Those guidelines arose out of an impaired driving case. In Morin, [1992] 1 S.C.R. 771, the Court suggested that institutional delay of 8-10 months in provincial court (Ontario Court of Justice in Ontario) and 6-8 months in Superior Court would be appropriate. Nevertheless there needed to be some flexibility for institutional delay and a focus on inferred and/or actual prejudice to the accused occasioned by the delay. Ironically, the accused in Morin was subjected to a delay outside of the guidelines but her case was not stayed by the Supreme Court of Canada because of a lack of prejudice to Ms. Morin.

Like a lot of other legal issues, the analyses in delay cases became more and more complex and less predictable. Justice Moldaver compared the Morin style application to a “dice roll”. While that made a lot of work for lawyers, it was very difficult, if not impossible, to predict which cases would be stayed because of delay. Applications for a stay of proceedings based on delay became time consuming. Delay applications caused delay. As Justice Moldaver points out, trial within a reasonable time is critical not just to the accused but to witnesses, judges, victims of criminal acts and society as a whole. A clean, less complicated and more predictable approach to the s.11(b) Charter guarantee is the way forward because of R. v. Jordan, 2016 SCC 27 which was just released on July 8, 2016.

The new framework is clearly stated. There is a “presumptive ceiling” for both provincial court trials and trials (usually in Superior Court) that take place after a preliminary inquiry is held. For provincial court trials, the ceiling is 18 months; for two stage proceedings, the ceiling is 30 months.

To determine the amount of delay, Courts should calculate the total amount of time from the date the Information is sworn until the trial minus actual defence delay. Defence delay is delay waived by the defence and delay caused by the defence like deliberate delay tactics or delay when both the Court and the Crown are ready for trial but the defence is not. If the remaining delay is above the presumptive ceiling, the proceedings will be stayed unless the Crown can show exceptional circumstances. Exceptional circumstances must be reasonably unforeseen or reasonably unavoidable. The Crown would have to demonstrate that it took reasonable steps to avoid the problem before the delay exceeded the ceiling. Both the Crown and justice system now have the obligation to prioritize cases faltering due to unforeseen events.

Even if total delay is under the presumptive ceiling, a stay of proceedings will be ordered if the defence can show meaningful steps demonstrating “a sustained effort to expedite the proceedings; … and the case took markedly longer than it reasonably should have.”

There are transition provisions for cases already in the system. The new rules will be rigidly applied by Courts after those cases have worked their way through the system. When Askov was decided, it resulted in thousands of charges being stayed. The Supreme Court in Morin and lower courts applying Morin restricted and complicated the test for unreasonable delay. Courts and Crowns are on notice that the parsing of words spoken on the record in the history of the proceedings, prejudice affidavits, cross-examination of accused persons on those affidavits, endless arguments and uncertainty in results are all relics of the past.

The decision in Jordan makes the way forward clear to all justice participants. While 18 months seems high for provincial court cases, it sets a clear bar and recognizes that s.11(b) of the Charter is an important right that protects all participants in the system and engenders respect for the administration of justice.


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