How long is too long to wait for trial?

By Jim Quail

In a split decision, the Supreme Court of Canada has set out new guidelines that will dramatically change the way our courts enforce the right under section 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time.

The old rules set down in 1992 involved balancing a series of factors, including the length of the delay, the reasons, any conduct by the accused that waived portions of the waiting time, limits to institutional resources for getting cases heard, and prejudice to the accused.

In R. v Jordan, after commenting on the harmful trend toward lengthier delays, the majority set out a fixed time-frame to determine whether charges should be stayed because of violation of section 11(b).  From now on, if cases going directly to trial in the lower, provincial courts take longer than 18 months from the date charges are laid until the trial, there will be an onus on the Crown to justify the delay.  For cases tried in the superior courts, or in two-step cases in the lower courts where there has been a preliminary inquiry, this presumption of unreasonable delay will be triggered at the 30-month point.

Delays caused by actions of the defence (like a change of legal counsel) will not count toward the thresholds.

An accused person will be able to argue that delays lower than these thresholds are still unreasonable, but will bear the onus of establishing a violation of the Charter.  They will need to show that the defence worked to get the case heard more quickly and the delay was unreasonable.

Here’s how the majority described what happened to Mr. Jordan: “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.”  The minority of the Court agreed that Jordan’s rights were violated by the delay, but were sharply critical of the fixed guidelines. They said that “creating fixed or presumptive ceilings is a task better left to legislatures.”

The majority ruling provided some flexibility for cases already in the system, to try to avoid having thousands of cases dropped all at once due to delay.  The Crown will have to show that delay beyond these thresholds was due to their reasonable reliance on the old rules.  I confidently predict that there will be a great multitude of cases where Crown and defence will battle that issue out, and that many, many pending cases willbe abandoned or stayed because of this ruling.

Delay in criminal prosecutions is very damaging to the rights of accused persons, who despite the presumption of innocence are left waiting for years with charges hanging over their heads.  It is also damaging to public confidence in our justice system.  The minority was sceptical that these new rules will actually achieve their intended purpose of forcing the system to operate more efficiently, however.

The main problem is thatgovernments are not providing enough courtrooms, prosecutors and judges to handle the volume of criminal charges that are being squeezed through the system. A major cause of delay is the slashing of legal aid services: the flood of unrepresented accused, and litigants in civil cases, is clogging the court process.  I expect that at a minimum, as a result of this decision we will see an increase in both federal and provincial funding to help move cases to trial more efficiently.

If governments want to use the criminal law system and prisons to address societal problems of addiction, poverty and abuse, they will need to pour money into the system, and ensure that legal aid is available to those who need it.  The Jordan decision may force them to face up to the cost of their failed strategies.  Time will tell.