Supreme Court Judgments

  

 

SUPREME COURT OF CANADA

 

Citation: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631

Appeal heard: October 7, 2015 Judgment rendered: July 8, 2016 Docket: 36068

 

Between:

Barrett Richard Jordan

Appellant

 

and

 

Her Majesty The Queen

Respondent

 

- and -

 

Attorney General of Alberta,

British Columbia Civil Liberties Association and

Criminal Lawyers’ Association (Ontario)

Interveners

 

 

Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

 

Joint Reasons for Judgment: (paras. 1 to 141)   Reasons Concurring in the Result: (paras. 142 to 303)

Moldaver, Karakatsanis and Brown JJ. (Abella and Côté JJ. concurring)   Cromwell J. (McLachlin C.J. and Wagner and Gascon JJ. concurring)

 

 

 

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631

Barrett Richard Jordan                                                                                 Appellant

v.

Her Majesty The Queen                                                                              Respondent

and

Attorney General of Alberta,

British Columbia Civil Liberties Association and

Criminal Lawyers’ Association (Ontario)                                                  Interveners

Indexed as: R. v. Jordan

2016 SCC 27

File No.: 36068.

2015: October 7; 2016: July 8.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

on appeal from the court of appeal for british columbia

                    Constitutional law — Charter of Rights  — Right to be tried within reasonable time — Delay of more than four years between charges and end of trial — Whether accused’s right to be tried within reasonable time under s. 11(b)  of Canadian Charter of Rights and Freedoms  infringed — New framework for applying s. 11(b).

                    J was charged in December 2008 for his role in a dial‑a‑dope operation. His trial ended in February 2013. J brought an application under s. 11( b )  of the Canadian Charter of Rights and Freedoms , seeking a stay of proceedings due to the delay. In dismissing the application, the trial judge applied the framework set out in R. v. Morin, [1992] 1 S.C.R. 771. Ultimately, J was convicted. The Court of Appeal dismissed the appeal.

                    Held: The appeal should be allowed, the convictions set aside and a stay of proceedings entered.

                    Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: The delay was unreasonable and J’s s. 11( b )  Charter  right was infringed. The Morin framework for applying s. 11(b) has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over‑burdened trial courts. From a practical perspective, the Morin framework’s after‑the‑fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.

                    A new framework is therefore required for applying s. 11(b). This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives.

                    At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.

                    Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

                    It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

                    If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required.

                    An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

                    Below the presumptive ceiling, however, the burden 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. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.

                    As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

                    Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice under the Morin framework.

                    For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post‑Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice.

                    The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

                    In this case, the total delay between the charges and the end of trial was 49.5 months. As the trial judge found, four months of this delay were waived by J when he changed counsel shortly before the trial was set to begin, necessitating an adjournment. In addition, one and a half months of the delay were caused solely by J for the adjournment of the preliminary inquiry because his counsel was unavailable for closing submissions on the last day. This leaves a remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30 months in the superior court. The Crown has failed to discharge its burden of demonstrating that the delay of 44 months (excluding defence delay) was reasonable. While the case against J may have been moderately complex given the amount of evidence and the number of co‑accused, it was not so exceptionally complex that it would justify such a delay.

                    Nor does the transitional exceptional circumstance justify the delay in this case. Since J’s charges were brought prior to the release of this decision, the Crown was operating without notice of the new framework within a jurisdiction with some systemic delay issues. But 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 regardless of the framework under which the Crown was operating. Therefore, it cannot be said that the Crown’s reliance on the previous state of the law was reasonable. While the Crown did make some efforts to bring the matter to trial more quickly, these efforts were too little and too late. And the systemic delay problems that existed at the time cannot justify the delay either. Much of the institutional delay could have been avoided had the Crown proceeded on the basis of a more reasonable plan by more accurately estimating the amount of time needed to present its case. To the extent that the trial judge held that this delay was reasonable, he erred.

                    All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years. Broader structural and procedural changes, in addition to day‑to‑day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.

                    Per McLachlin C.J. and Cromwell, Wagner and Gascon JJ.: This Court’s jurisprudence for dealing with alleged breaches of s. 11( b )  of the Canadian Charter of Rights and Freedoms  over the last 30 years supplies a clear answer to this appeal. Striking out in the completely new direction adopted by the majority is unnecessary. A reasonable time for trial under s. 11(b) cannot and should not be defined by numerical ceilings, as the majority concludes.

                    The right to be tried in a reasonable time is multi‑factored, fact‑sensitive, and case‑specific; its application to specific cases is unavoidably complex. The relevant factors and general approach set out in R. v. Morin, [1992] 1 S.C.R. 771, respond to these complexities. With modest adjustments to make the analysis more straightforward and with some additional clarification, a revised Morin framework will continue to ensure that the constitutional right of accused persons to be tried in a reasonable time is defined and applied in a way that appropriately balances the many relevant considerations. In order to do so, the Morin considerations should be regrouped under four main analytical steps.

                    First, the accused must establish that there is a basis for the s. 11(b) inquiry. The court should look to the overall period between the charge and the completion of the trial to determine whether its length merits further inquiry.

                    Second, the court must determine on an objective basis what would be a reasonable time for the disposition of a case like the one under review — that is, how long a case of this nature should reasonably take. The objective standard of reasonableness has two components: institutional delay and inherent time requirements of the case. Both of these periods of time are to be determined objectively. The acceptable period of institutional delay is the period that is reasonably required for the court to be ready to hear the case once the parties are ready to proceed, and is determined in accordance with the administrative guidelines for institutional delay set out by this Court in Morin: eight to ten months before the provincial courts and six to eight months before the superior courts. These guidelines set some rough limits on the point at which inadequacy of state resources will be accepted as an excuse. The guidelines should not be understood as precluding allowance for any sudden and temporary strain on resources that causes a temporary congestion in the courts. The inherent time requirements of a case, on the other hand, represent the period of time that is reasonably required for the parties to be ready to proceed and to conclude the trial for a case similar in nature to the one before the court, and are to be determined on the basis of judicial experience, supplemented by submissions of counsel and evidence. In estimating a reasonable time period, the court should also take into account the liberty interests of the accused.

                    Third, the court must consider how much of the actual delay in the case counts against the state. This is done by subtracting the periods attributable to the defence, including any waived time periods, from the overall period of delay. When the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than mere acquiescence in the inevitable, and that it meets the high bar of being clear, unequivocal, and informed acceptance. Delay resulting from unreasonable actions solely attributable to the accused must also be subtracted from the period for which the state is responsible, such as last‑minute changes in counsel or adjournments flowing from a lack of diligence. It is also necessary to subtract from the actual delay any periods that, although not fairly attributable to the defence, are nonetheless not fairly counted against the state, including unavoidable delays due to inclement weather or illness of a trial participant.

                    Fourth, the court must determine whether the actual period of time that fairly counts against the state exceeds the reasonable time by more than can be justified on any acceptable basis. Where the actual time exceeds what would have been reasonable for a case of that nature, the result will be a finding of unreasonable delay unless the Crown can show that the delay was justified. Even substantial excess delay may be justified and therefore reasonable where, for example, there is a particularly strong societal interest in the prosecution proceeding on its merits, or where the delay results from temporary and extraordinary pressures on counsel or the court system. However, it does not follow that in these conditions the excess period is invariably justified. The accused still may be able to demonstrate actual prejudice. Although actual prejudice need not be proved to find an infringement of s. 11(b), its presence would make unreasonable (in the particular circumstances of the case) a delay that might otherwise be objectively viewed as reasonable. As a result, justification may be found to be lacking.

                    Under this revised Morin framework, any delay in excess of the reasonable time requirements and any actual prejudice arising from the overall delay must be evaluated in light of societal interests: on one hand, fair treatment and prompt trial of accused persons and, on the other, determination of cases on their merits. If there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an acceptable basis upon which exceeding the inherent and institutional requirements of a case can be justified.

                    This approach is a slight reorientation of the Morin framework because the focus is more explicitly on the period of delay which exceeds what would have been reasonable. But there is no change in principle.

                    Applying these four steps of the revised Morin framework in this case, J’s constitutional right to be tried within a reasonable time was violated. The 49.5‑month delay from the charges to the end of the scheduled trial date is sufficient to trigger an inquiry into whether the delay is unreasonable. There were 10.5 months of inherent delay and 18 months of institutional delay. These findings make it appropriate to conclude that the reasonable time requirements for a case of this nature were 28.5 months. The case in fact took 49.5 months. The difference is 21 months. Of that, 4 months are attributable to the defence. The rest ― a period of 17 months — counts against the state. In other words, this case took almost a year and a half longer than what would be a reasonable period to prosecute a case of this nature. This is not a close case. The time to the end of trial greatly exceeds what would be a reasonable time to prosecute a similar case. While there are societal interests in the trial on the merits of the serious drug crimes alleged against J, these cannot make reasonable the grossly excessive time that it took society to bring him to trial.

                    In contrast, the majority’s new framework is not an appropriate approach to interpreting and applying the s. 11(b) right, for several reasons. First, the new approach reduces reasonableness to numerical ceilings. Reasonableness cannot be judicially defined with precision or captured by a number. As well, the majority’s judicially created ceilings largely uncouple the right to be tried within a reasonable time from the bedrock constitutional requirement of reasonableness, which is the core of the right.

                    Moreover, this approach unjustifiably diminishes the right to be tried within a reasonable time. When the elapsed time is below the ceiling, an accused would have to show not only that the case took markedly longer than it reasonably should have but also that he or she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. This requirement has no bearing on whether the delay was unreasonable.

                    The majority’s approach also exceeds the proper role of the Court. Creating fixed or presumptive ceilings is a task better left to legislatures. The ceilings place new limits on the exercise of the s. 11(b) right to a trial within a reasonable time for reasons of administrative efficiency that have nothing to do with whether the delay in a given case was or was not excessive. This is inconsistent with the judicial role.

                    As well, the ceilings have no support in the record in this case. What evidence there is in the record suggests that it would be unwise to establish these sorts of ceilings. For the vast majority of cases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist and are more likely to feed such a culture.

                    The majority’s approach also risks negative consequences for the administration of justice. The presumptive ceilings are unlikely to improve the pace at which the vast majority of cases move through the system. As well, if this new framework were applied immediately, the majority’s transitional provisions would not avoid the risk of thousands of judicial stays.

                    Moreover, the increased simplicity which is said to flow from the majority’s new framework is likely illusory. Even if creating ceilings were an appropriate task for the courts and even if there were an appropriate evidentiary basis for them, there is little reason to think these ceilings would avoid the complexities inherent in deciding whether a particular delay is unreasonable. The majority’s framework simply moves the complexities of the analysis to a new location: deciding whether to rebut the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.

                    Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice.

Cases Cited

By Moldaver, Karakatsanis and Brown JJ.

                    Overruled: R. v. Morin, [1992] 1 S.C.R. 771; referred to: R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d) 396; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Elliott (2003), 114 C.R.R. (2d) 1; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625; R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Tremblay, [1987] 2 S.C.R. 435; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Feeney, [1997] 2 S.C.R. 117; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493; R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74.

By Cromwell J.

                    Applied: R. v. Morin, [1992] 1 S.C.R. 771, aff’g (1990), 55 C.C.C. (3d) 209; referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Beason (1983), 36 C.R. (3d) 73; R. v. Sharma, [1992] 1 S.C.R. 814; R. v. Brassard, [1993] 4 S.C.R. 287; R. v. Nuosci, [1993] 4 S.C.R. 283; R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74; Beavers v. Haubert, 198 U.S. 77 (1905).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 10( b ) , 11( b ) .

Criminal Code , R.S.C. 1985, c. C‑46, s. 561 .

International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 14(3)(c).

Magna Carta (1215), clause 40.

Speedy Trial Act of 1974, 18 U.S.C. § 3161 (2012).

Authors Cited

Alberta Justice and Solicitor General. Criminal Justice Division. “Injecting a Sense of Urgency: A new approach to delivering justice in serious and violent criminal cases”, report by Greg Lepp, April 2013 (online: https://justice.alberta.ca/programs_services/criminal_pros/Documents/InjectingSenseUrgency.pdf).

Amsterdam, Anthony G. “Speedy Criminal Trial: Rights and Remedies” (1975), 27 Stan. L. Rev. 525.

B.C. Justice Reform Initiative. A Criminal Justice System for the 21st Century: Final Report to the Minister of Justice and Attorney General Honourable Shirley Bond, report by D. Geoffrey Cowper, Q.C., Chair. Victoria: The Initiative, 2012.

British Columbia. Provincial Court. “Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources”, September 14, 2010 (online: www.provincialcourt.bc.ca/downloads/pdf/Justice_Delayed_-_A_Report_of_the_Provincial_Court_of_British_Columbia_Concerning_Judicial_Resource.pdf).

British Columbia. Provincial Court. “The Semi‑Annual Time to Trial Report of the Provincial Court of British Columbia to March 31, 2015” (online: www.provincialcourt.bc.ca/downloads/pdf/Time%20to%20Trial%20-%20Update%20(as%20at%20March%2031,%202015).pdf).

Canada. Department of Justice. “The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System”, 2006 (online: www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/).

Canada. Law Reform Commission. Working Paper 67. Trial Within a Reasonable Time: A Working Paper Prepared for the Law Reform Commission of Canada. Ottawa: Canada Communication Group, 1994.

Code, Michael A. Trial Within a Reasonable Time: A Short History of Recent Controversies Surrounding Speedy Trial Rights in Canada and the United States. Scarborough, Ont.: Carswell, 1992.

Hill, Casey, and Jeremy Tatum. “Re‑Chartering an Old Course Rather than Staying Anew in Remedying Unreasonable Delay under the Charter ”, paper presented at the Crown Defence Conference, Winnipeg, September 2012 (online: www.crowndefence.ca/wp-content/uploads/2011/05/Justice-Casey-Hill_Remedying-Unreasonable-Delay1.pdf).

Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).

Hopwood, Shon. “The Not So Speedy Trial Act” (2014), 89 Wash. L. Rev. 709.

LaFave, Wayne R., et al. Criminal Procedure, 5th ed. St. Paul, Minn.: West, 2009.

Lamer, Antonio. “The Role of Judges”, address to the Empire Club of Canada, 1995 (online: http://speeches.empireclub.org/61076/data?n=1).

LeSage, Patrick J., and Michael Code. Report of the Review of Large and Complex Criminal Case Procedures. Toronto: Ontario Ministry of the Attorney General, 2008.

McLachlin, Beverley. “The Challenges We Face” (2007), 40 U.B.C. L. Rev. 819.

Ruby, Clayton C. “Trial Within a Reasonable Time under Section 11(b): the Ontario Court of Appeal Disconnects from the Supreme Court” (2013), 2 C.R. (7th) 91.

Venice Commission (European Commission for Democracy through Law). Can excessive length of proceedings be remedied? Strasbourg: Council of Europe Publishing, 2007.

                    APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, MacKenzie and Stromberg‑Stein JJ.A.), 2014 BCCA 241, 357 B.C.A.C. 137, 611 W.A.C. 137, 313 C.R.R. (2d) 1, [2014] B.C.J. No. 1263 (QL), 2014 CarswellBC 1760 (WL Can.), affirming a decision of Verhoeven J., 2012 BCSC 1735, [2012] B.C.J. No. 2448 (QL), 2012 CarswellBC 3655 (WL Can.). Appeal allowed.

                    Eric V. Gottardi and Tony C. Paisana, for the appellant.

                    Croft Michaelson, Q.C., and Peter R. LaPrairie, for the respondent.

                    Jolaine Antonio, for the intervener the Attorney General of Alberta.

                    Tim A. Dickson and Martin Twigg, for the intervener the British Columbia Civil Liberties Association.

                    Frank Addario and Erin Dann, for the intervener the Criminal Lawyers’ Association (Ontario).

                    The judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by

                    Moldaver, Karakatsanis and Brown JJ. —

I.              Introduction

[1]                              Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11( b )  of the Canadian Charter of Rights and Freedoms  attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”.

[2]                              Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

[3]                              An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.

[4]                              Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay.

[5]                              A change of direction is therefore required. Below, we set out a new framework for applying s. 11(b). At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives.

[6]                              Applying this new framework, including its transitional features, we conclude that the appellant was not brought to trial within a reasonable time. We would allow the appeal, set aside his convictions and direct a stay of proceedings.

II.           Facts

[7]                              The appellant, Mr. Jordan, was arrested in December 2008 following an RCMP investigation into a “dial-a-dope” operation in Langley and Surrey, British Columbia. He was eventually charged with nine other co-accused on a 14-count information alleging various offences relating to possession and trafficking. Mr. Jordan remained in custody until February 2009, when he was released under strict house arrest and other restrictive bail conditions.

[8]                              The 10 co-accused made numerous appearances through the early months of 2009 as they obtained counsel, made their elections, and coordinated schedules. By May 2009, all counsel had agreed that the preliminary inquiry would require approximately four days, and it was eventually set for May 13, 14, 17 and 18, 2010. Several of the co-accused entered guilty pleas or were severed from the information. By the time the preliminary inquiry commenced, there were five co-accused left on the information, including Mr. Jordan.

[9]                              At the preliminary inquiry, it quickly became apparent that the initial time estimate of four days was too low. Crown counsel advised the preliminary inquiry judge that the Crown would be able to present all of the evidence against the four co-accused, but that the Crown would require significantly more court time to present the “mountain of evidence” it had in respect of Mr. Jordan. The parties sought and obtained continuation dates throughout 2010 and into 2011. In May 2011, Mr. Jordan (along with two co-accused) was committed to stand trial on all 14 counts. The preliminary inquiry — which ended up taking nine days of court time — had taken a full year to complete. It was now two and a half years since Mr. Jordan had been charged.

[10]                          Following committal, the matter moved to the British Columbia Supreme Court. Crown counsel estimated that six weeks would be required for trial, and the trial was set for the first available six-week block — in September 2012. A new Crown counsel took over the file in July 2011, and wrote to Mr. Jordan’s counsel advising of her estimate that only two to three weeks would be needed to present the Crown’s case, and offering to seek earlier trial dates. Mr. Jordan’s counsel did not respond to this offer. Later, in December 2011, one of the remaining two co-accused was severed from the information. Only Mr. Jordan and one co-accused remained.

[11]                          As Mr. Jordan awaited trial, his liberty was restricted. He spent two months in custody following his arrest in December 2008, which was followed by close to four years of restrictive bail conditions. However, in July 2011, Mr. Jordan was convicted of prior drug charges and was sentenced to a 15-month conditional sentence order (“CSO”), which he served until October 2012. The conditions of the CSO were similar to the bail conditions Mr. Jordan was under for the charges at issue in this appeal. Therefore, for 15 months of the delay, Mr. Jordan’s liberty was restricted by both the bail conditions and the CSO.

[12]                          At the start of his trial in September 2012, Mr. Jordan brought an application for a stay of proceedings alleging a breach of his s. 11(b) right to be tried within a reasonable time. This application was dismissed. The trial was adjourned, and it eventually concluded in February 2013 with his conviction on five drug-related offences. The total delay from Mr. Jordan’s charges to the conclusion of the trial was 49.5 months.

III.        Judgments Below

A.           British Columbia Supreme Court, 2012 BCSC 1735

[13]                          The trial judge found that the delay in bringing this matter to trial was not unreasonable, and declined to enter a stay of proceedings. In concluding there was no s. 11(b) breach, he applied the framework from this Court’s decision in R. v. Morin, [1992] 1 S.C.R. 771, including the guidelines set out in it for how much institutional delay is generally tolerable.

[14]                          The trial judge found that the inherent time requirements for this case were 10.5 months. He also found that, of the total delay, four months (incurred when Mr. Jordan changed counsel and requested an adjournment of his trial) were attributable to the defence, and two months were attributable to the Crown.

[15]                          The bulk of the delay — 32.5 months — was attributable to institutional delay, of which 19 months occurred at the Provincial Court and 13.5 months occurred at the B.C. Supreme Court. This was, as the trial judge noted, well outside the Morin guidelines for tolerable institutional delay of eight to ten months in the provincial court, and six to eight months in the superior court. However, the trial judge held that institutional delay should be given less weight than Crown delay in the final balancing.

[16]                          The trial judge then considered the issue of prejudice. He reasoned that if the institutional delay had been within the Morin guidelines, the trial would have concluded by May 2011. Most of the additional delay coincided with the term of Mr. Jordan’s CSO. The trial judge therefore found that Mr. Jordan’s liberty interest was not significantly prejudiced by the delay. While Mr. Jordan’s security of the person was affected, any prejudice was minimized by the fact that he was facing other outstanding charges for much of the delay. Finally, he found no prejudice to Mr. Jordan’s right to make full answer and defence because the Crown’s case did not depend on the memory of witnesses.

[17]                          The trial judge balanced all of the factors and concluded that Mr. Jordan’s s. 11(b) right had not been infringed, due primarily to the fact that Mr. Jordan did not suffer significant prejudice.

B.            British Columbia Court of Appeal, 2014 BCCA 241, 357 B.C.A.C. 137

[18]                          Mr. Jordan appealed. He argued that the trial judge erred in his assessment of prejudice and gave inadequate weight to the excessive institutional delay. The Court of Appeal found that the trial judge did not err in his attribution of the delay, or in his weighing of the institutional delay. Further, the trial judge’s determination on prejudice was a finding of fact that was entitled to deference. Finally, the trial judge did not err by declining to infer prejudice based on the length of the delay alone. The appeal was dismissed.

IV.        Analysis

A.           The Right to Be Tried Within a Reasonable Time Is Important to Individuals and Society as a Whole

[19]                          As we have said, the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. It finds expression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.

[20]                          Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

[21]                          At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).

[22]                          Of course, the interests protected by s. 11(b) extend beyond those of accused persons. Timely trials impact other people who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice.

[23]                          Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timely trials (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1220-21). Delay aggravates victims’ suffering, preventing them from moving on with their lives.

[24]                          Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the “worry and frustration [they experience] until they have given their testimony” (Askov, at p. 1220). Repeated delays interrupt their personal, employment or business activities, creating inconvenience that may present a disincentive to their participation.

[25]                          Last but certainly not least, timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov, at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221).

[26]                          Extended delays undermine public confidence in the system. And public confidence is essential to the survival of the system itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” (Askov, at p. 1221).

[27]                          Canadians therefore rightly expect a system that can deliver quality justice in a reasonably efficient and timely manner. Fairness and timeliness are sometimes thought to be in mutual tension, but this is not so. As D. Geoffrey Cowper, Q.C., wrote in a report commissioned by the B.C. Justice Reform Initiative:

. . . the widely perceived conflict between justice and efficiency goals is not based in reason or sound analysis. The real experience of the system is that both must be pursued in order for each to be realised: they are, in practice, interdependent.

 

(A Criminal Justice System for the 21st Century (2012), at p. 75)

[28]                          In short, timely trials further the interests of justice. They ensure that the system functions in a fair and efficient manner; tolerating trials after long delays does not. Swift, predictable justice, “the most powerful deterrent of crime” is seriously undermined and in some cases rendered illusory by delayed trials (McLachlin C.J., “The Challenges We Face”, remarks to the Empire Club of Canada, published in (2007), 40 U.B.C. L. Rev. 819, at p. 825).

B.            Problems With the Current Framework

[29]                          While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view, developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it.

[30]                          The Morin framework requires courts to balance four factors in determining whether a breach of s. 11(b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court. The Morin guidelines reflect the fact that resources are finite and there must accordingly be some tolerance for institutional delay. Institutional delay within or close to the guidelines has generally been considered to be reasonable.

[31]                          This framework suffers from a number of related doctrinal shortcomings.

[32]                          First, its application is highly unpredictable. It has been interpreted so as to permit endless flexibility, making it difficult to determine whether a breach has occurred. The absence of a consistent standard has turned s. 11(b) into something of a dice roll, and has led to the proliferation of lengthy and often complex s. 11(b) applications, thereby further burdening the system.

[33]                          Second, as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the s. 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between “actual” and “inferred” prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests. Courts have also found that “it may not always be easy” to distinguish between prejudice stemming from the delay versus the charge itself (R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d) 396, at para. 43). And even if sufficient evidence is adduced, the interpretation of that evidence is a highly subjective enterprise.

[34]                          Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered “reasonable” if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused’s and the public’s interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured. Delayed trials may also cause prejudice to the administration of justice.

[35]                          Third, the Morin framework requires a retrospective inquiry, since the analysis of delay arises only after the delay has been incurred. Courts and parties are operating within a framework that is designed not to prevent delay, but only to redress (or not redress) it. As a consequence, they are not motivated to manage “each case in advance to achieve future compliance with consistent standards” (M. A. Code, Trial Within a Reasonable Time (1992), at p. 117 (emphasis in original)). Courts are instead left to pick up the pieces once the delay has transpired. This after-the-fact review of past delay is understandably frustrating for trial judges, who have only one remedial tool at their disposal — a stay of proceedings. It is therefore unsurprising that courts have occasionally strained in applying the Morin framework to avoid a stay.[1]

[36]                          The retrospective analysis required by Morin also encourages parties to quibble over rationalizations for vast periods of pre-trial delay. Here, for example, the Crown argues that the trial judge erred in characterizing most of the delay as Crown or institutional delay. Had he assessed it properly, the argument goes, he would have attributed only 5 to 8 months as Crown or institutional delay, as opposed to 34.5 months. Competing after-the-fact explanations allow for potentially limitless variations in permissible delay. As the intervener the Criminal Lawyers’ Association (Ontario) submits: “Boundless flexibility is incompatible with the concept of a Charter  right and has proved to serve witnesses, victims, defendants and the justice system’s reputation poorly” (I.F., at para. 12).

[37]                          Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay.

[38]                          In sum, from a doctrinal perspective, the s. 11(b) framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over-burdened trial courts.

[39]                          These doctrinal problems have contributed to problems in practice.

[40]                          As we have observed, a culture of complacency towards delay has emerged in the criminal justice system (see, e.g., Alberta Justice and Solicitor General, Criminal Justice Division, “Injecting a Sense of Urgency: A new approach to delivering justice in serious and violent criminal cases”, report by G. Lepp (April 2013) (online), at p. 17; Cowper, at p. 4; P. J. LeSage and M. Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at p. 15; Canada, Department of Justice, “The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System” (2006) (online), at pp. 5-6). Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system” (LeSage and Code, at p. 16). It “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system” (Cowper, at p. 48).

[41]                          The Morin framework does not address this culture of complacency. Delay is condemned or rationalized at the back end. As a result, participants in the justice system — police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament — are not encouraged to take preventative measures to address inefficient practices and resourcing problems. Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken. In many cases, however, much remains to be done.

[42]                          Aggravating the tolerance for delay is the increased complexity of pre-trial and trial processes since Morin. New offences, procedures, obligations on the Crown and police, and legal tests have emerged. Many of them put a premium on fairness, reasonableness, and a fact-specific analysis. They take time. They also take up judges, courtrooms, and other resources.

[43]                          Complexity is sometimes unavoidable in order to achieve fairness or ensure that the state lives up to its constitutional obligations. But the quality of justice does not always increase proportionally to the length and complexity of a trial. Unnecessary procedural steps and inefficient advocacy have the opposite effect, weighing down the entire system. A criminal proceeding does not take place in a vacuum. Each procedural step or motion that is improperly taken, or takes longer than it should, along with each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts.

[44]                          The intervener Attorney General of Alberta submits that a change in courtroom culture is needed. This submission echoes former Chief Justice Lamer’s two decades-old call for participants in the justice system to “find ways to retain a fair process . . . that can achieve practical results in a reasonable time and at reasonable expense” (“The Role of Judges”, address to the Empire Club of Canada, 1995 (online)).

[45]                          We agree. And, along with other participants in the justice system, this Court has a role to play in changing courtroom culture and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. We accept Mr. Jordan’s invitation — which was echoed by the Criminal Lawyers’ Association (Ontario), the British Columbia Civil Liberties Association, and Mr. Williamson in the companion appeal of R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741 — to revise the s. 11(b) analysis. While departing from a precedent of this Court “is a step not to be lightly undertaken” (Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 56), as we have explained, “there are compelling reasons to do so” (R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 44).

V.           A New Framework for Section 11(b) Applications

A.           Summary

[46]                          At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

[47]                          If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

[48]                          If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) 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. We expect stays beneath the ceiling to be rare, and limited to clear cases.

B.            The Presumptive Ceiling

[49]                          The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial.[2] We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.[3] As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted.

[50]                          A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

[51]                          While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time. Contrary to what our colleague Cromwell J. asserts, we do not depart from the concept of reasonableness; we simply adopt a different view of how reasonableness should be assessed.

[52]                          In setting the presumptive ceiling, we were guided by a number of considerations. First, it takes as a starting point the Morin guidelines.[4] In Morin, this Court set eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court following an accused’s committal for trial. Thus, under Morin, a total of 14 to 18 months was the measure for proceedings involving both the provincial court and the superior court.

[53]                          Second, the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case. These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin. In this way, the ceiling takes into account the significant role that process now plays in our criminal justice system.

[54]                          Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.

[55]                          Fourth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice.

[56]                          We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.

[57]                          There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.

[58]                          Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework “reduces reasonableness to two numerical ceilings” (para. 254). As we will explain in greater detail, this is clearly not so. The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken. As our colleague acknowledges, pursuant to our framework, “the judge must look at the circumstances of the particular case at hand” in assessing the reasonableness of a delay (para. 301).

[59]                          We now turn to discussing the various case-specific factors that must be accounted for both above and below the presumptive ceiling.

C.            Accounting for Defence Delay

[60]                          Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802).

[61]                          Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, per L’Heureux-Dubé J., at p. 1686).

[62]                          Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to a provincial court trial for legitimate reasons. To do so, the Crown’s consent must be obtained (Criminal Code , R.S.C. 1985, c. C-46, s. 561 ). Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as a condition of its consent.

[63]                          The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

[64]                          As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

[65]                          To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[66]                          To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.

[67]                          The next step of the analysis depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling.

D.           Above the Ceiling — Presumptively Unreasonable Delay

[68]                          Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

Exceptional Circumstances

[69]                          Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[70]                          It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

[71]                          It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[72]                          Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

[73]                          Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[74]                          Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[75]                          The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[76]                          If the remaining delay falls below the ceiling, the accused may still demonstrate in clear cases that the delay is unreasonable as outlined below. If, however, the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered.

[77]                          As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[78]                          A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.

[79]                          It bears reiterating that such determinations fall well within the trial judge’s expertise. And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right (see, e.g., Vassell). As this Court said in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760:

Certainly, it is within the Crown’s discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well. Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete. [para. 45]

[80]                          Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.

[81]                          To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity. Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

E.            Below the Presumptive Ceiling

[82]                          A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (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. Absent these two factors, the s. 11(b) application must fail.

[83]                          We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases.

(1)           Defence Initiative — Meaningful and Sustained Steps

[84]                          To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.

[85]                          To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

[86]                          Our colleague Cromwell J. criticizes this requirement as diminishing the right to be tried within a reasonable time. We respectfully disagree. First, this Court already considers defence conduct in assessing s. 11(b) applications. And the level of diligence displayed by the accused is relevant in the context of other Charter  rights as well, like the s. 10(b) right to counsel (R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439). Second, as mentioned, the requirement of defence initiative below the ceiling is a corollary to the Crown’s justificatory burden above the ceiling. Third, this requirement reflects the practical reality that a level of cooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing — rather than diminishing — timely justice.

(2)           Reasonable Time Requirements of the Case — Time Markedly Exceeded

[87]                          Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

[88]                          The reasonable time requirements of the case will increase proportionally to a case’s complexity. As Sopinka J. wrote in Morin: “All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins” (pp. 791-92).

[89]                          In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

[90]                          Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

[91]                          Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92).

F.             Applying the New Framework to Cases Already in the System

[92]                          When this Court released its decision in Askov, tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law. Such swift and drastic consequences risk undermining the integrity of the administration of justice.

[93]                          We recognize that this new framework is a departure from the law that was applied to s. 11(b) applications in the past. A judicial change in the law is presumed to operate retroactively and apply to past conduct (Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para. 84). Slightly more relaxed rules apply to judicial changes to the interpretation of constitutional provisions (para. 88). Transition periods, suspended declarations of invalidity, and purely prospective remedies are part of the discretionary remedial framework of our constitutional law (paras. 88-92; R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 217-18; R. v. Feeney, [1997] 2 S.C.R. 117).

[94]                          Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture. As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated.

[95]                          The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications.

[96]                          First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

[97]                          Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings.

[98]                          On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.

[99]                          The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial (Morin, at p. 802).

[100]                      Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

[101]                      We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. We also emphasize that for cases in which the charge is brought shortly after the release of this decision, the reasonable time requirements of the case must reflect this high level of tolerance for institutional delay in particular localities.

[102]                      Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time. In his dissenting opinion in Mills v. The Queen, [1986] 1 S.C.R. 863, Lamer J. (as he then was) was alive to this concern and his comments are apposite here:

This case is the first to have presented this Court with the opportunity of establishing appropriate guidelines for the application of s. 11(b). The full scope of the section, and the nature of the obligation it has imposed upon the government and the courts has remained uncertain for the period prior to the rendering of this judgment.

 

Given this uncertainty and the terminative nature of the remedy for a violation of the section, i.e., a stay of proceedings, I am of the view that a transitional approach is appropriate, and indeed necessary, to enable the courts and the governments to properly discharge their burden under s. 11(b). This is not to say that different criteria ought to apply during the transitional period, that is, the period prior to the rendering of this judgment, but rather that the behaviour of the accused and the authorities must be evaluated in its proper context. In other words, it would be inaccurate to give effect to behaviour which occurred prior to this judgment against a standard the parameters of which were unknown to all. [Emphasis added; p. 948.]

[103]                      We echo Lamer J.’s remarks. For cases already in the system, the presumptive ceiling still applies; however, “the behaviour of the accused and the authorities” — which is an important consideration in the new framework — “must be evaluated in its proper context” (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance.

[104]                      We disagree with Cromwell J. that our framework’s allowance for present realities somehow creates a Charter  amnesty. For cases currently in the system, the s. 11(b) right will receive no less protection than it does now. The point is that, on an ongoing basis, our framework has the potential to effect positive change within the justice system, rather than succumb to the culture of complacency we have described.

G.           Concluding Comments on the New Framework

[105]                      The new framework for s. 11(b) can be summarized as follows:

•                     There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

 

•                     Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

 

•                     Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (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.

 

•                     For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.

[106]                      As part of the process of developing this framework, we conducted a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts. These cases assisted in developing the definition of exceptional circumstances, as they highlighted the types of circumstances that judges have found to justify prolonged delays. By reading these cases with the new framework in mind, we were able to get a rough sense of how the new framework would have played out in some past cases. Indeed, we note that in the seminal case of Askov, the delay was in the range of 30 months, as it was in Godin some 19 years later, and in both cases, this Court found the delays to be unreasonable.

[107]                      It is also clear from this case law review that the ceiling will not permit the parties or the courts to operate business as usual. The ceiling is designed to encourage conduct and the allocation of resources that promote timely trials. The jurisprudence from the past decade demonstrates that the current approach to s. 11(b) does not encourage good behaviour. Finger pointing is more common than problem solving. This body of decisions makes it clear that the incentives inherent in the status quo fall short in the ways we have described.

[108]                      We acknowledge that this new framework represents a significant shift from past practice. First, its standpoint is prospective. Participants in the criminal justice system will know, in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay. And the public will more clearly understand what it means to hold a trial within a reasonable time. Enhanced clarity and predictability befits a Charter  right of such fundamental importance to our criminal justice system.

[109]                      Second, the new framework resolves the difficulties surrounding the concept of prejudice. Instead of being an express analytical factor, the concept of prejudice underpins the entire framework. Prejudice is accounted for in the creation of the ceiling. It also has a strong relationship with defence initiative, in that we can expect accused persons who are truly prejudiced to be proactive in moving the matter along.

[110]                      Prejudice has been one of the most fraught areas of s. 11(b) jurisprudence for over two decades. Understanding prejudice as informing the setting of the ceiling, rather than treating prejudice as an express analytical factor, also better recognizes that, as we have said, prolonged delays cause prejudice to not just specific accused persons, but also victims, witnesses, and the system of justice as a whole.

[111]                      Third, the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. While judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting process with a global assessment. This inquiry need only arise if the accused has taken meaningful and sustained steps to expedite matters. And above the ceiling, a s. 11(b) analysis is triggered only where the Crown seeks to rely on exceptional circumstances. A framework that is simpler to apply is itself of value: “. . . we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay” (Morin, per McLachlin J., at p. 810).

[112]                      In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary.

[113]                      The new framework also encourages the defence to be part of the solution. If an accused brings a s. 11(b) application when the total delay (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) falls below the ceiling, the defence must demonstrate that it took meaningful and sustained steps to expedite the proceedings as a prerequisite to a stay. Further, the deduction of defence delay from total delay as a starting point in the analysis clearly indicates that the defence cannot benefit from its own delay-causing action or inaction.

[114]                      The new framework makes courts more accountable, too. Absent exceptional circumstances, the ceiling limits the extent to which judges can tolerate delays before a stay must be imposed. Indeed, courts are important players in changing courtroom culture. Many courts have developed robust case management and trial scheduling processes, focussing attention on possible sources of delay (such as pre-trial applications or unrealistic estimates of trial length) and thereby seeking to avoid or minimize unnecessary delay. Some courts, however, have not.

[115]                      As we have said, this Court also has a role to play. On many occasions, this Court has established detailed guidelines and minimum requirements to give meaningful content to constitutional rights in the criminal law context (see, e.g., R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 83; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 49; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at paras. 53-56). Section 11(b) has received its content in much the same way. Cromwell J.’s framework, like ours, and like Morin and Askov, is entirely judicially created. And, like ours, and like Morin and Askov, it relies heavily on numerical guidelines (with such guidelines acting as guideposts, not absolute limitation periods). Our approach is entirely consistent with the judicial role.

[116]                      Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493:

The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. . . . It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal. [para. 32]

[117]                      Sharpe J.A.’s reference to finite resources is an important point. We are aware that resource issues are rarely far below the surface of most s. 11(b) applications. By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such.

VI.        Application to This Case

[118]                      Having established the new framework for s. 11(b), we now turn to the case before us.

[119]                      The first step in determining whether Mr. Jordan’s s. 11(b) right was infringed is to determine the total delay between the charges and the end of trial. In this case, the total delay was 49.5 months.  

[120]                      Turning to the first case-specific factor that must be accounted for, the next step is to determine whether any of that delay was waived or caused solely by the defence. We see no reason to interfere with the trial judge’s finding that four months of this delay were waived by Mr. Jordan when he changed counsel shortly before the trial was set to begin, necessitating an adjournment.

[121]                      The more difficult assessment is whether any of the remaining delay was caused solely by the action or inaction of the defence. The Crown argues that the trial judge erred by failing to attribute significant periods of delay to the defence, and that the defence was equally culpable in the delay in bringing this matter to trial. The Crown cited several examples: the defence consented to numerous adjournments; defence counsel initially suggested the four-day estimate for the preliminary inquiry; defence counsel’s unavailability resulted in the preliminary inquiry not being completed as scheduled in December 2010; defence counsel failed to respond to the Crown’s offer in July 2011 of an earlier trial; and there was no evidence that defence counsel would have been available for trial earlier than June 2012.

[122]                      While these instances that the Crown points to are symptomatic of the systemic complacency towards delay that we have described, most of them are not attributable solely to the defence. The Crown and defence both share responsibility for the preliminary inquiry underestimation. Similarly, responsibility for the delay resulting from consent adjournments and the defence’s failure to respond to the Crown’s offer of a shorter trial time in July 2011 should not be borne solely by the defence. These adjournments were part of the legitimate procedural requirements of the case, and it does not appear from the record that any occurred when the Crown and court were otherwise ready to proceed. Further, there was no evidence that, had the defence responded to the Crown’s offer of an earlier trial, the Crown and the court would have been able to accommodate an earlier date. Rather, the only evidence before the trial judge was that the earliest available trial dates were in September 2012. 

[123]                      The defence should, however, bear responsibility for the delay resulting from the adjournment of the preliminary inquiry necessitated by defence counsel’s unavailability for closing submissions on December 22, 2010, the last day scheduled for the preliminary inquiry. We would only attribute one and a half months of that delay to the defence, however, given the evidence that Crown counsel was unable to attend at the first available continuation date for the preliminary inquiry of February 3, 2011.

[124]                      In total then, four months of delay were waived by the defence and one and a half months of delay were caused solely by the defence. This leaves a remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30 months in the superior court. The burden is therefore on the Crown to demonstrate that the delay is reasonable in light of exceptional circumstances.

[125]                      There is nothing in the record to indicate that any discrete, exceptional circumstances arose. And although particularly complex cases may present an exceptional circumstance, this is not one of those cases. In terms of the legal issues, while Mr. Jordan was initially charged along with nine other co-accused, this number quickly dropped as the case progressed. At the time of trial, only one co-accused remained on the indictment with Mr. Jordan. Further, none of the alleged offences involved novel or complex points of law. Relatively few pre-trial applications were scheduled. In short, the legal issues in Mr. Jordan’s case were not particularly complex.

[126]                      As for the evidence, it was substantial but it was relatively straightforward. It consisted of surveillance evidence by police officers, undercover buys by police officers, a small amount of expert evidence regarding how dial-a-dope operations are conducted, and a search warrant for Mr. Jordan’s apartment. There was nothing particularly complex about this evidence.

[127]                      In the end, while the case against Mr. Jordan may have been moderately complex given the amount of evidence and the number of co-accused, it was not so exceptionally complex that it would justify a delay of 44 months (excluding defence delay).

[128]                      However, since Mr. Jordan’s charges were brought prior to the release of this decision, we must also consider whether the transitional exceptional circumstance justifies the delay. In our view, it does not. We recognize that the Crown was operating without notice of this change in the law within a jurisdiction with some systemic delay issues. But 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 regardless of the framework under which the Crown was operating. Therefore, it cannot be said that the Crown’s reliance on the previous state of the law was reasonable.

[129]                      We note that a good portion of the delay resulted from the inaccurate assessment of the time required for the preliminary inquiry, and in particular, the Crown’s failure to communicate with the parties with a view to tying down the evidence that it needed to call at the preliminary inquiry. A similar problem occurred with the trial. While the fault for the delay in bringing this matter to trial certainly did not lie solely with Crown counsel, it is equally clear that the Crown prosecutors assigned to the case did not have a solid plan for bringing the matter to trial within a reasonable time. The Crown was aware of potential s. 11(b) issues as early as December 2010, yet it took few steps to expedite the matter. Instead, the Crown was content to rely on an overly large estimate of trial time without attempting to streamline the issues or consider severing the co-accused from the indictment.

[130]                      The Crown did make a good faith effort to bring the matter to trial more quickly in light of the s. 11(b) issue when Crown counsel wrote to defence counsel in July 2011 with a revised estimate of the length of the Crown’s case. But by this point, approximately 31 months had already elapsed from the date of Mr. Jordan’s charges. This is a substantial length of time to wait before making efforts to expedite the matter. At this point, the scheduled trial was still more than a year away.

[131]                      While the Crown did make some efforts to bring the matter to trial more quickly, these efforts were too little and too late. The previous state of the law cannot reasonably support the Crown’s conduct. And the systemic delay problems that existed in the Surrey Provincial Court at the time cannot justify the delay either. As discussed, much of the institutional delay could have been avoided had the Crown proceeded on the basis of a more reasonable plan.

[132]                      To the extent that the trial judge held that this delay was reasonable under the Morin framework, he erred. Citing the Court of Appeal’s decision in R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74, at para. 52, he incorrectly held that institutional delay is entitled to less weight than delay within the Crown’s control. The parties agree that this was in error.

[133]                      It follows that the delay was unreasonable and Mr. Jordan’s s. 11(b) right was infringed.

VII.     Conclusion

[134]                      The right to a trial within a reasonable time has aptly been described as “discipline for the justice system”, in that it may cause “discomfort in the short term but [it will bring] achievement in the long term” (Code, at pp. 133-34).

[135]                      In this case, the system was undisciplined. It failed. Mr. Jordan’s s. 11(b) right was breached when it took 49.5 months to bring him to trial. All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years. There is simply no reasonable explanation for why the matter took as long as it did. The appeal must be allowed, the convictions set aside and a stay of proceedings entered.

[136]                      We agree with Cromwell J. that our differences of opinion are indeed fundamental. In our view, given the considerable doctrinal and practical problems confronting the Morin approach, further minor refinements to the model are incapable of responding to the challenges facing timely justice in this country.

[137]                      Real change will require the efforts and coordination of all participants in the criminal justice system.[5]

[138]                      For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.

[139]                      For the courts, this means implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.

[140]                      For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial. Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.

[141]                      Thus, broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Timely trials are possible. More than that, they are constitutionally required.

                    The reasons of McLachlin C.J. and Cromwell, Wagner and Gascon JJ. were delivered by

 

                    Cromwell J. —

I.              Introduction

A.           Overview

[142]                      Every person charged with an offence in Canada has a constitutional right to be tried within a reasonable time: Canadian Charter of Rights and Freedoms ,   s. 11( b ) . The right has ancient origins and finds expression across legal systems. In the Great Charter of 1215 (the Magna Carta) the King promised that “[t]o no one will we . . . delay right or justice”: clause 40. The International Covenant on Civil and Political Rights (1966), Can. T.S. 1976 No. 47, calls for trial “without undue delay”: art. 14(3)(c). A right of this nature is also found in the United States, New Zealand, Australia, India, South Africa, the Caribbean, the United Kingdom, Ireland, and in the European Union, among others: see Justice C. Hill and J. Tatum, “Re-Chartering an Old Course Rather than Staying Anew in Remedying Unreasonable Delay under the Charter ” (paper presented at the Crown Defence Conference in Winnipeg September 2012) (online), at p. 59. 

[143]                      This Court over the last 30 years has developed a sophisticated jurisprudence for dealing with allegations of s. 11(b) breaches: see Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; and R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3. The framework developed in this jurisprudence, which is most fully set out in Morin, identifies the many considerations that should be taken into account in order to determine whether the time to try a particular criminal case is reasonable.

[144]                      Determining reasonableness requires a court to balance a number of factors, including the length of the delay, waiver of any time periods by the accused, the reasons for the delay, including the time requirements for the case, the actions of the parties, limitations on institutional resources, and prejudice to the person charged. It is necessary to consider these factors on a case-by-case basis: the answer to the question of whether an accused is tried within a reasonable time is inherently case-specific.

[145]                      There is much wisdom, based on accumulated experience, in the Court’s jurisprudence about unreasonable delay. But the Court has made adjustments over time and has been clear that further adjustments will likely need to be made in the future. As Sopinka J. wrote in Morin, “Embarking as we did on uncharted waters it is not surprising that the course we steered has required, and may require in the future, some alteration in its direction to accord with experience”: p. 784. To be sure, some issues that need clarification have arisen in the case law and this appeal provides an opportunity to provide such clarification. But the orientation of our jurisprudence to case-specific determinations of reasonableness is sound. With modest adjustments to make the analysis more straightforward and with some additional clarification, that approach will continue to ensure that the constitutional right of accused persons to be tried in a reasonable time is defined and applied in a way that appropriately balances the many relevant considerations.

[146]                      My reasons on this appeal and those of my colleagues, Justices Moldaver, Karakatsanis and Brown, present contrasting visions of how our s. 11(b) jurisprudence should develop.

[147]                      My colleagues would define reasonableness by assigning a number of months of delay — “ceiling[s]” (para. 5) — that will be taken to be reasonable unless the accused establishes not only that the case took markedly longer that it reasonably should have, but also that he or she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. As I see it, this is not an appropriate approach to interpreting and applying the s. 11(b) right for several reasons. First, reasonableness cannot be captured by a number; the ceilings substitute a right for “trial under the ceiling[s]” (para. 74) for the constitutional right to be tried within a reasonable time. Second, creating these types of ceilings is a task better left to legislation. Third, the ceilings are not supported by the record or by my colleagues’ analysis of the last 10 years of s. 11(b) jurisprudence and have not been the subject of adversarial debate. Fourth, there is a serious risk that the introduction of these ceilings will put thousands of cases at risk of being judicially stayed. Fifth, the ceilings are unlikely to achieve the simplicity that is claimed for them. Finally, setting aside 30 years of jurisprudence and striking out in this new direction is unnecessary. My colleagues easily conclude that our existing jurisprudence supplies a clear answer to this appeal: paras. 125 and 128. I agree with them that it does: the appeal must be allowed and a stay of proceedings entered.

[148]                      In contrast, my view is that a reasonable time for trial under s. 11(b) cannot and should not be defined by numerical ceilings. The accumulated wisdom of the past 30 years of jurisprudence, modestly clarified, provides a workable framework to determine whether the right to be tried in a reasonable time has been breached in a particular case.

B.            The Nature of the Section 11(b) Right

[149]                      The right to be tried within a reasonable time is easy to state and understand: people charged with offences should be tried within a reasonable time. Determining whether the right has been breached in a specific case, however, may be far from straightforward. The right is by its very nature fact-sensitive and case-specific. There are several reasons for this.

[150]                      First, the term “delay” is not entirely apt. While delay has a pejorative connotation, delay, in the sense of the passage of time, is inherent in any legal proceeding. In fact, some delay may be desirable. As stated by Lamer J., dissenting but not on this point, with Dickson C.J. concurring, undue haste itself can make a trial unfair: see Mills, at p. 941. Therefore, delay only becomes problematic when it is unreasonable.

[151]                      Second, unreasonableness is not conducive to being captured by a set of rules: a reasonable time for the disposition of one case may be entirely unreasonable for another. Reasonableness is an inherently contextual concept, the application of which depends on the particular circumstances of each case. This makes it difficult and in fact unwise to try to establish the reasonable time requirements of a case by a numerical guideline. Inevitably, the ceiling will be too high for some cases and too low for others. More fundamentally, a fixed guideline is inconsistent with the notion of reasonableness in the context of the infinitely varied situations that arise in real cases.

[152]                      Third, the Charter  protects only against state action. Even if a case took too long to be dealt with, there will only be a breach of the right if that unreasonable delay counts against the state. And so it follows that the focus is not on unreasonable delay in general, but on unreasonable delay that properly counts against the state. We must therefore attribute responsibility for the delay that has occurred and only factor in the delay which can fairly be counted against the state in deciding whether the Charter  right has been infringed.

[153]                      Finally, s. 11(b) implicates several distinct interests, both individual and societal. Excessive delay implicates the liberty, security, and fair trial interests of persons charged, as well as society’s interest in the prompt disposition of criminal matters and in having criminal matters determined on their merits: Morin, at p. 786. Historically, the liberty interest was the focus: Mills, at p. 918, per Lamer J.; Rahey, at p. 642, per La Forest J., concurring.

[154]                      More recently, the “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” — the stigmatization, loss of privacy, stress and anxiety of those awaiting trial — has been recognized as implicating the security of the person charged: Rahey, at p. 605, per Lamer J., quoting A. G. Amsterdam, “Speedy Criminal Trial: Rights and Remedies” (1975), 27 Stan. L. Rev. 525, at p. 533; see also Mills, at pp. 919-20. As Cory J. for the majority put it in Askov, at p. 1219:

There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family.

[155]                      A third interest protected by s. 11(b) is the accused’s interest in mounting a full and fair defence. As Sopinka J. said in Morin, the “right to a fair trial is protected [by s. 11(b)] by attempting to ensure that proceedings take place while evidence is available and fresh”: p. 786. When delay is present, “justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate”: p. 810, per McLachlin J. (as she then was), concurring. Delay “can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence”: Godin, at para. 30.

[156]                      Finally, the right to be tried within a reasonable time has a societal dimension: see e.g. Askov, at p. 1219, per Cory J. But societal interests do not all point in the same direction. On one hand, the wider community has an interest in “ensuring that those who transgress the law are brought to trial and dealt with according to the law” (pp. 1219-20) and in “preventing an accused from using the [s. 11(b)] guarantee as a means of escaping trial”: p. 1227. On the other hand, there is a broad societal interest in ensuring that individuals on trial are “treated fairly and justly”: p. 1220. The community benefits “by the quick resolution of the case either by reintegrating into society the accused found to be innocent or if found guilty by dealing with the accused according to the law” and witnesses and victims benefit from a prompt resolution of a criminal matter: ibid.

[157]                      While the right to be tried within a reasonable time implicates all of these interests, it is important to recognize that it is a free-standing right. As Martin J.A. put it in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.), at p. 96, cited with approval in Morin, at p. 786: “Trials held within a reasonable time have an intrinsic value.” As such, actual impairment of the various interests protected by s. 11(b) “need not be proven by the accused to render the section operative”: Conway, at p. 1694, per Lamer J.; see also Mills, at p. 926, per Lamer J. The proper approach is to “recognize that prejudice underlies the right, while recognizing at the same time that actual proven prejudice need not be, indeed, is not, relevant to establishing a violation of s. 11(b)”: Mills, at p. 926, per Lamer J.

[158]                      To sum up, the right to be tried in a reasonable time is multi-factored, fact-sensitive, and case-specific. Like other broadly expressed constitutional guarantees, its application to specific cases is unavoidably complex. Our experience to date suggests that the relevant factors and general approach set out in Morin respond to these complexities. However, experience also suggests that the way in which Morin has come to be applied is unduly complicated and that aspects of the relevant factors require clarification. This can be done without losing the case-specific focus on whether a particular case has been or will be tried within a reasonable time.

II.           The Analytical Framework

[159]                      The purpose of carrying out the s. 11(b) analysis is to decide whether the length of time to try the case which counts against the state is “substantially longer than can be justified on any acceptable basis”: Smith, at p. 1138. If so, the delay is unreasonable and in breach of s. 11(b).

[160]                      The Morin framework identifies and describes the many factors that are relevant to whether a delay is reasonable or unreasonable. But one of the limitations of the framework is that it provides little assistance as to how these various factors are to be weighed in order to reach a final conclusion. In order to simplify and clarify this analysis, it will be helpful to regroup the Morin considerations under four main analytical steps, which may be framed as questions to guide a court when confronted with a s. 11(b) claim. Doing so will make what is being considered and why more apparent, without losing the necessarily case-specific focus of the reasonableness inquiry. The questions are:

1.                  Is an unreasonable delay inquiry justified?

2.                  What is a reasonable time for the disposition of a case like this one?

3.                  How much of the delay that actually occurred counts against the state?

4.                  Was the delay that counts against the state unreasonable?

[161]                      This framework, along with elaboration of the relevant considerations, will clarify questions that have arisen in this case, namely: whether different periods of delay receive different weighting in the analysis; what is meant by “waiver” by the accused; and what is the role of prejudice in the analysis.

[162]                      I will now turn to a brief elaboration of each of these four analytical steps.

A.           Is an Unreasonable Delay Inquiry Justified?

[163]                      The accused must establish as a threshold matter that there is a basis for the Charter  inquiry. The court should look to the overall period between the charge and the completion of the trial to determine whether its length is such that it merits further inquiry. As stated by McLachlin J. in her concurring opinion in Morin, this determination can be made by referring to “‘norms’ representing the time reasonably taken to bring the offence charged to the point of trial in all the circumstances”: p. 811. If there is no reasonable basis to think that the delay in question is excessive, the accused’s s. 11(b) claim fails and the inquiry stops at this stage.

B.            What Is a Reasonable Time for the Disposition of a Case Like This One?

[164]                      This second analytical step is to determine on an objective basis what would be a reasonable time for the trial of a case like the one under review. The objective standard of reasonableness has two components: institutional delay and inherent time requirements of the case. The period of institutional delay is the period that is reasonably required for the court to be ready to hear the case (including interlocutory motions) once the parties are ready to proceed. The reasonable inherent time requirements of the case represent the period of time that is reasonably required for the parties to be ready to proceed and to conclude the trial for a case similar in nature to the one before the court.

[165]                      Both of these periods of time are to be determined objectively. The acceptable period of institutional delay is determined in accordance with the administrative guidelines for institutional delay set out by this Court in Morin: eight to ten months before the provincial courts and six to eight months before the superior courts (see Morin, at pp. 798-99). The inherent time requirements of a case, on the other hand, are to be determined on the basis of judicial experience, supplemented by submissions of counsel and evidence in relation to the reasonable time requirements of a case of a similar nature to the one before the court. As I will describe below, these two elements must be distinguished in the s. 11(b) analysis.

(1)           Institutional Delay

[166]                      Institutional delay is the period of time that results from the inadequacy of institutional resources. The period of institutional delay “starts to run when the parties are ready for trial but the system cannot accommodate them”: Morin, at pp. 794-95. At this stage of the objective analysis, the court will determine an acceptable period of time for the court to be available to hear the case once the parties are ready to proceed.

(a)           The Morin Administrative Guidelines Are Appropriate for Determining Institutional Delay

[167]                      As stated in Morin, “institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11( b )  of the Charter ”: p. 794. The difficulty arises because we do not live in a “Utopia” in which there is always fully adequate funding, personnel, and facilities in order to administer criminal matters: p. 795. The courts must account for both the fact that the state does not have unlimited funds to attribute to the administration of the criminal justice system and the fact that an accused has a fundamental Charter  right to be tried within a reasonable time: ibid.

[168]                      The period of institutional delay is generally not case-specific, unlike the inherent time requirements of a particular case. Institutional delay is therefore more amenable to generalization based on evidence than is the element of the reasonable inherent time requirements of particular types of cases. Moreover, institutional delay is largely the result of government choices about how to allocate resources. Accordingly, the courts “cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly”: Morin, at p. 795.

[169]                      The Morin administrative guidelines, namely eight to ten months for trials in provincial courts and six to eight months for trials before the superior courts, were established on the basis of extensive statistical and expert evidence. There is no basis in the record in this case to revise them and I would therefore confirm these guidelines as appropriate for determining reasonable institutional delay.

(b)           Determining Institutional Delay

[170]                      I would add two comments about determining institutional delay using the Morin administrative guidelines.

[171]                      First, in determining where a particular case should fit within the range established by the Morin guidelines, the court should consider whether the accused is in remand custody pending trial or subject to stringent bail conditions in identifying a reasonable period of institutional delay for a particular type of case. The period of reasonable institutional delay should generally be at the lower end of the range in these circumstances because these types of cases should receive higher priority by the courts. This period might even be shortened below the range described in the guidelines. As Sopinka J. put it Morin:

If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court’s concern. [p. 798]

[172]                      Second, the guidelines should not be understood as precluding allowance for any “sudden and temporary strain on resources” that causes a temporary congestion in the courts: Morin, at p. 797. As I discuss at the final step of the analysis, even a properly resourced system will occasionally buckle under an unusually heavy onslaught of work. 

(2)           The Inherent Time Requirements of the Case

(a)           Introduction

[173]                      The inherent time requirements of a case include the time periods that are reasonably necessary to conclude the proceedings for a case similar in nature to the one before the court. In Morin, Sopinka J. described some of the inherent time requirements of the case as including the time required “in processing the charge, retention of counsel, applications for bail and other pre-trial procedures” along with “police and administration paperwork, disclosure, etc.”: pp. 791-92. Separate consideration of these inherent time requirements is essential given the almost infinitely variable circumstances of particular cases.

[174]                      As Lamer J. described in Mills, the inquiry into the inherent time requirements of a case will necessarily require judges to “rely heavily upon their practical experience and good sense”: p. 932. Judges should “undertake an objective assessment of the delay which may be required in the circumstances of the case”: ibid. This inquiry is “wholly objective” (p. 931):

. . . the court must fix an objective and realistic time period for the preparation of the type of case which is at bar. It must determine the period which would normally be required, taking into account the number of charges, the number of accused, the complexity and volume and similar objective elements, for the preparation and completion of the case . . . . [Emphasis added; p. 932.]

In the end, we must rely on the good sense and experience of trial judges to determine what would constitute a reasonable period of time required for a particular type of case.

[175]                      The inherent time requirements of a case are to be determined objectively on a case-by-case basis. 

(b)           Determining the Inherent Time Requirements

[176]                      The elements to be considered are the amounts of time reasonably required in processing the charge, retaining counsel, applying for bail, completing police and administration paperwork, making disclosure, dealing with pre-trial applications, preparing for and arguing the preliminary inquiry and/or the trial, and trying a case similar in the nature to the one before the court. Included are such things as the time reasonably required to reschedule after a mistrial, the time to resolve legal issues, the time to convene a judicial pre-trial, and a reasonable time to try the case: see e.g. Hill and Tatum, at pp. 14-15.

[177]                      If a case is more complex, the estimate of the reasonable time period required to dispose of the case will be higher. Given the type of case before the court, it may be expected that there will be more pre-trial motions, or particular types of motions. Most s. 11(b) applications are considered after the fact, and any incidental proceedings to a trial could help guide this analysis. However, courts should avoid ex post facto analysis focusing on whether certain motions in the case before them were unreasonably or unnecessarily taken. The objective nature of this inquiry involves an analysis of the type of case before the court, and all the motions and other pre-trial procedures that could reasonably be expected in such a case.

[178]                      One example is a case involving a large amount of disclosure, where it could reasonably be expected that such disclosure would lengthen the inherent time requirements to try the case. However, disclosure may be a major factor contributing to delay and should be approached on the basis that the Crown has a duty to make disclosure fully, but also promptly. And defence counsel must not engage in unnecessary fishing expeditions. The reasonable estimation of the objective inherent time requirements of a case must assume both prompt disclosure and the absence of unnecessary fishing expeditions.

[179]                      Also included in the inherent time requirements of a case is the time required for counsel, both Crown and defence, to be available and to prepare the case: see Morin, at p. 791. In Morin, Sopinka J. noted that the courts must take account of the fact that “counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case”: p. 792. Or, as I put it in Godin, s. 11(b) does not require counsel to “hold themselves in a state of perpetual availability”: para. 23. The court should estimate the reasonable amount of time required for Crown and defence counsel to prepare and to make themselves available in the type of case before them. This estimation is objective, and does not include an analysis of the record which may demonstrate that counsel was available before or after this estimated time period.

[180]                      Morin provides an example of how this may be done. Sopinka J. specifically found that “[a]n additional period for inherent time requirements must be allowed” for the post-preliminary inquiry “second stage”: p. 793. He further inferred, absent concrete evidence to the contrary, that counsel would have required 2 months to make themselves prepared and available for trial and for the matter to be heard, leaving the other 12 months to institutional delay: pp. 804-6. Similarly, in R. v. Sharma, [1992] 1 S.C.R. 814, at pp. 825-26, Sopinka J. estimated 3 months of inherent time requirements in the 12-month period from the set date appearance to the trial date.

[181]                      Finally, in estimating a reasonable time period for the inherent time requirements of a case, the court should also take into account the liberty interests of the accused. If an accused is in custody or under stringent conditions of release, such as house arrest, counsel and the court system should accord his or her case priority over those of accused persons subject to less onerous conditions pending trial.

(c)           Do the Periods of Institutional Delay and Inherent Time Requirements Overlap?

[182]                      The question has arisen of whether the periods of institutional delay (i.e. the time for the court to be ready to hear the matter) and inherent delay (i.e. the time reasonably required for the parties to be ready to proceed and to conclude the trial for a case similar in nature to the one before the court) overlap. On occasion, the elements of institutional and inherent requirements have been intermingled in the application of the s. 11(b) framework such as in considering periods of time during which both counsel and the court are unavailable: see e.g. C. Ruby, “Trial Within a Reasonable Time under Section 11(b): the Ontario Court of Appeal Disconnects from the Supreme Court” (2013), 2 C.R. (7th) 91, at p. 94, citing Morin, at p. 793. The short answer to this question of overlap, however, is that, on the objective determination of how much time the case should reasonably take, the two periods are distinct.

[183]                      The reasonable inherent time requirements are concerned with identifying a reasonable period to get a case similar in nature to the one before the court ready for trial and to complete the trial. The inherent time requirements are not determined, for instance, with reference to the actual availability of particular counsel and court, but rather they are determined by an objective estimation. The other element, the acceptable period of institutional delay, is the amount of time reasonably required for the court to be ready to hear the case once the parties are ready to proceed. This is expressed with reference to the Morin guidelines. These guidelines do not relate to inherent time requirements; they reflect only the acceptable period of institutional delay.

(3)           Conclusion on Objectively Reasonable Time Requirements

[184]                      To sum up, in assessing a claim under s. 11(b), the courts must first determine the reasonable time requirements, objectively viewed, for the type of case before them. Simply put, the courts must determine how long the case should reasonably take (or have taken). This consists, first, of the length of time required for that type of case to be prepared, heard, and decided (i.e. the case’s inherent time requirements). The second element is the additional time required for the court to be available to hear the parties beyond the point at which they should be prepared to proceed (i.e. the period of institutional delay). This period of institutional delay is assessed by applying the administrative guidelines developed in Askov and Morin: eight to ten months in provincial court and six to eight months in superior court. These guidelines set some rough limits on the point at which inadequacy of state resources will be accepted as an excuse for excessive delay.

C.            How Much of the Delay That Actually Occurred Counts Against the State?

[185]                      Having addressed the objective elements of the analysis — the reasonable institutional delay and the reasonable inherent time requirements of the case — the judge moves on to compare those objectively reasonable time periods against the time actually taken in the case before the court, to determine whether the overall delay is reasonable. Delay in excess of the objectively required time may be reasonable if it is not attributable to the state. As mentioned at the outset, s. 11(b) protects only against unreasonable delay attributable to the state. The period fairly attributable to the state excludes any time period fairly attributable to the accused — including “waiver” — and any extraordinary and unavoidable delays that should not be counted against the state. The main task at this step of the analysis is to identify any portion of the actual elapsed time that should not count against the state.

(1)           Delay Attributable to the Accused

[186]                      Delay attributable to the accused includes any period “waived” by the accused, and other delays attributable to the accused.

(a)           Waiver

[187]                      The concept of “waiver” by the accused in the s. 11(b) context has given rise to some confusion and this case provides an opportunity to bring further clarity to that issue.

[188]                      First, the language of “waiver” in this context may be misleading. As stated by this Court in Conway, when the courts speak of “waiver” in the context of s. 11(b), “it is not the right itself which is being waived but merely the inclusion of specific periods in the overall assessment of reasonableness”: p. 1686. This means that periods of time to which the accused has or is deemed to have agreed will not count towards any determination of unreasonable delay.

[189]                      Second, there is admittedly some lack of clarity in our jurisprudence as to whether the accused’s consent to an adjournment sought by the Crown constitutes “waiver” of the resulting delay. In Smith, this Court created a rebuttable inference of waiver if defence consents to a future trial date. This proposition was qualified, however, by the point that “inaction or acquiescence on the part of the accused, short of waiver”, does not result in a forfeiture of an accused’s s. 11(b) rights: Smith, at p. 1136. In Morin, Sopinka J. explained that the accused’s consent to a trial date “can give rise to an inference of waiver”, but this is not the case “if consent to a date amounts to mere acquiescence in the inevitable”: p. 790. This Court, albeit in very short decisions, upheld this approach in R. v. Brassard, [1993] 4 S.C.R. 287, at p. 287, and R. v. Nuosci, [1993] 4 S.C.R. 283, at p. 284, stating that consent to a future date will be characterized as waiver in the absence of evidence that it is acquiescence.

[190]                      A rebuttable inference of waiver from the accused’s consent to an adjournment does not sit well with the settled law that waiver must be clear, unequivocal and must be established by the Crown: see e.g. Askov, at p. 1232. As noted in Morin, the waiver must be done “with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights”, and such a test is “stringent”: p. 790.

[191]                      I conclude that, when the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than “mere acquiescence in the inevitable” and that it meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state.

(b)           Other Delay Attributable to the Accused

[192]                      All steps that are reasonably necessary to make full answer and defence are properly part of the inherent time requirements of the case and do not count against either the Crown or the accused. However, delay resulting from unreasonable actions solely attributable to the accused must be subtracted from the period for which the state is responsible.

[193]                      Unreasonable actions by the accused may take diverse forms, such as last-minute changes in counsel or adjournments flowing from a lack of diligence (e.g. failure to pursue or review disclosure in a timely way; pursuit of unnecessary information; failure to attend court appearances or to give timely notice of intended Charter  applications, particularly during case scheduling; unreasonable rejection of earlier dates for preliminary hearing, trial or other court appearances (see Hill and Tatum, at pp. 17-18); and a lack of sufficient effort to accommodate dates available to the court and the prosecution). It is obvious that delays caused by attempts to obstruct the course of the trial, that amount to “deliberate and calculated tactic[s] employed to delay the trial”, or other vexatious or bad faith conduct by the accused, cannot count against the state: Askov, at p. 1228.

[194]                      The question of whether the actions of the accused were unreasonable must be viewed through the lens of reasonable conduct of counsel and the accused at the time the judgments had to be made, not with the benefit of hindsight. The accused must not be penalized for taking all reasonable steps to make full answer and defence even if, with the benefit of hindsight, they were not particularly fruitful.

(2)           Extraordinary and Unavoidable Delays That Should Not Count Against the State

[195]                      It is also necessary to subtract from the actual delay any periods that, although not fairly attributable to the defence, are nonetheless not fairly counted against the state. Such time periods could include unavoidable delays due to inclement weather or illness of a trial participant.

D.           Was the Delay That Counts Against the State Unreasonable?

[196]                      At this point in the analysis, the judge has determined the reasonable time a case ought to have taken, and the period of time that fairly counts against the state that it actually took. The next and final step is to determine whether this actual period of time exceeds the reasonable time by more than can be justified on any acceptable basis. This approach is a slight reorientation of the Morin framework because the focus is more explicitly on the period of delay which exceeds what would have been reasonable. But there is no change in principle. 

(1)           Can the Delay Beyond What Would Have Been Reasonable Be Justified?

[197]                      Determining whether the actual delay was longer than what would have been reasonable is a simple matter of arithmetic. However, qualifying the extent of that excess delay as justified or not requires evaluation. As stated in Morin, at p. 787: “The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula” but rather by judicial determination.

[198]                      Where the actual time exceeds what would have been reasonable for a case of that nature, the result will be a finding of unreasonable delay unless the Crown can show that the delay was justified having regard to the length of the excess delay balanced against certain other factors described below. The point at which the amount of time beyond what would have been a reasonable delay becomes unreasonable cannot be described with precision. We can say, however, that where the delay exceeds what would have been reasonable, justification is required and, as the length of the excess delay increases, justification will be more difficult. Even substantial excess delay may be justified and therefore reasonable where, for example, there is a particularly strong societal interest in the prosecution proceeding on its merits, or where the delay results from temporary and extraordinary pressures on counsel or the court system. However, it does not follow that in these conditions the excess period is invariably justified. As I will discuss, given proof of actual prejudice to the accused or of abusive or negligent conduct on the part of the Crown which contributed to the delay, justification may be found to be lacking.

[199]                      The focus must remain on the fundamental question at this point in the analysis: whether the amount of excess delay can be “justified on any acceptable basis”: Smith, at p. 1138.

(2)           The Role of Prejudice in the Analysis

[200]                      The role of prejudice in the unreasonable delay analysis has become unduly complicated. The jurisprudence has distinguished between inferred and actual prejudice and, in some cases, it appears that it has been almost impossible to succeed on an unreasonable delay claim without proof of either type of prejudice.

[201]                      I would clarify the role of prejudice in the following ways.

[202]                      First, I would affirm the statements in previous cases to the effect that actual prejudice is not necessary to establish a breach of s. 11(b): see e.g. Mills, at p. 926, per Lamer J.; Askov, at p. 1232, per Cory J. The question is whether the delay is unreasonable, not whether an unreasonable delay has, in addition to being unreasonable, caused identifiable and actual prejudice.

[203]                      Second, and as explained earlier, actual prejudice to the liberty interests of the accused, notably being detained in custody or subject to very restrictive bail conditions pending trial, is taken into account in deciding what a reasonable time for trial would be. Prejudice of this nature during the period of reasonable delay need not be considered again in the final assessment of whether the delay is unreasonable.

[204]                      Third, prejudice to an accused’s security and fair trial interests in the general sense — such as stress and stigma or the erosion of evidence — is already considered in this revised framework. Defining the reasonable time requirements of a case recognizes that delay beyond this point will cause such stress and erosion of fair trial interests, regardless of any evidence the Crown may bring to the contrary. Prejudice to these interests during the period of reasonable delay need not be explicitly considered as a separate factor in this final inquiry, and the court should not consider evidence on any vague, general effect that the delay may have had on the security or fair trial interests of the accused.

[205]                      Fourth, specific examples of actual prejudice to an accused’s security and fair trial rights, such as the loss of employment or death of a witness (this, of course, is not an exhaustive list), are properly considered at the final stage of the analysis.

[206]                      Lastly, the absence of actual prejudice cannot make reasonable what would otherwise be an unreasonable delay. Actual prejudice need not be proved to find an infringement of s. 11(b) and its absence cannot be used to excuse otherwise unreasonable delay. However, even if the excess delay does not exceed the objectively determined reasonable time requirements of a case of that nature, the accused still may be able to demonstrate actual prejudice, thus making unreasonable (in the particular circumstances of the case) a delay that might otherwise be objectively viewed as reasonable.

(3)           Extraordinary Reasons for the Delay

[207]                      Exceptional cases may arise which merit further consideration of the various reasons for the delay at this final stage of the inquiry.

[208]                      In most cases, the elements of delay apart from delay attributable to the accused will be given equal weight, contrary to the approach in R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74, at para. 52. Specifically, institutional delay and other delay that is counted against the state are generally given equal weight. Abusive or grossly negligent Crown conduct causing delay counts more heavily against the state in determining whether the excessive delay may be justified on any acceptable basis. Such conduct not only undermines the accused’s rights, but is contrary to society’s interest in an effective and fair justice system.

[209]                      Conversely, institutional delay that is attributable to exceptional and temporary conditions in the justice system may be excused or given somewhat less weight against the state in the overall balancing and may in some cases justify excusing what would otherwise be excessive delay. This should generally be done, however, only if the state has made reasonable efforts to alleviate those conditions: Askov, at p. 1242.

(4)           Are There Especially Strong Societal Interests in the Prosecution on the Merits of the Case?

[210]                      As discussed above, s. 11(b) encompasses “a community or societal interest” to “see that the justice system works fairly, efficiently and with reasonable dispatch”: Askov, at pp. 1219 and 1221. This societal interest supports prompt disposition of criminal cases. However, there is also a societal interest in “ensuring that those who transgress the law are brought to trial”: pp. 1219-20. Societal interests must be considered “in conjunction” with the interests of the accused in the interpretation of s. 11(b): p. 1222.

[211]                      In McLachlin J.’s concurring opinion in Morin, she held that the societal interests in bringing the accused to trial should be considered in the determination of s. 11(b) claims: the “true issue at stake” in a s. 11(b) analysis is the “determination of where the line should be drawn between conflicting interests”, i.e. those of the accused and those of society: p. 809. Whether a delay becomes unreasonable, on the spectrum of delays apparent in criminal proceedings, must be determined by an analysis in which the interests of society in bringing those accused of crimes to trial are balanced against the rights of the person accused of a crime: pp. 809-10. To this I would add the societal interest in prompt disposition of criminal matters.

[212]                      I agree with this balancing approach. Under the revised framework I propose, the delay in excess of the reasonable time requirements of the case and any actual prejudice arising from the overall delay must be evaluated in light of societal interests: on one hand, fair treatment and prompt trial of accused persons and, on the other, determination of cases on their merits. As noted by Cory J. in Askov, more serious offences will carry commensurately stronger societal demands that the accused be brought to trial: p. 1226. These interests, however, are in effect factored into the determination of what would be a reasonable time for the disposition of a case like this one. But if there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an “acceptable basis” upon which exceeding the inherent and institutional requirements of a case can be justified.

E.            Summary of the Analytical Framework

[213]                      If the accused first establishes a basis that justifies a s. 11(b) inquiry, the court must then undertake an objective inquiry to determine what would be the reasonable time requirements to dispose of a case similar in nature to the one before the court (the inherent time requirements) and how long it would reasonably take the court to hear it once the parties are ready for hearing (the institutional delay).

[214]                      Next, the court must consider how much of the actual delay in the case counts against the state. This is done by subtracting the periods attributable to the defence, including any waived time periods, from the overall period of delay from charge to trial.

[215]                      Finally, the court must consider whether and to what extent the actual delay exceeds the reasonable time requirements of a case, and whether this can be “justified on any acceptable basis”. If the actual delay that counts against the state is longer than the reasonable time requirements of a case, then the delay will generally be considered unreasonable. The converse is also the case. However, there may be countervailing considerations, such as the presence of actual prejudice, exceptionally strong societal interests, or exceptional circumstances such as Crown misconduct or exceptional and temporary conditions affecting the justice system. These may either shorten or lengthen the period that would otherwise be unreasonable delay.

[216]                      This straightforward framework does not attempt to gloss over the inherent complexity of determining what delays are unreasonable. It merely clarifies where the various relevant considerations fit into the analysis and how they relate to each other. It also simplifies the analysis of prejudice and makes clear that, as a general rule, institutional and Crown delay should be given equal weight. It retains the focus on the circumstances of the particular case and builds on the accumulated experience found in 30 years of this Court’s jurisprudence.

III.        Application

[217]                      Although, as noted, this appeal would also be allowed applying the existing Morin analysis, it will be useful by way of illustration to analyze it under the modified framework that I have just described.

A.           Facts

[218]                      In 2008, the RCMP conducted a single, straightforward undercover investigation into a “dial-a-dope” operation involving the sale of drugs out of the Langley and Surrey areas of British Columbia. Undercover police officers purchased cocaine six times over seven months, calling a number associated with Mr. Jordan. On December 17, 2008, the police executed a search warrant, seizing 42.3 grams of heroin and just under 1.5 kilograms of cocaine and crack cocaine from the apartment that Mr. Jordan and his then-girlfriend, Ms. Kristina Gaudet, shared. On December 17, 2008, the police arrested Mr. Jordan and Ms. Gaudet. Mr. Jordan was charged with possession for the purposes of trafficking on December 18, and Ms. Gaudet was charged on February 20, 2009.

[219]                      From December 18, 2008 to February 16, 2009, Mr. Jordan was in custody. He was released on February 16, on strict conditions, including house arrest. During this time, the Crown swore additional and amended informations. Ultimately, 10 accused were charged. Mr. Jordan, as the main target of the investigation and prosecution, faced six charges.

[220]                      The accused elected to be tried in British Columbia Supreme Court. Crown and defence counsel agreed upon a preliminary hearing. For 24 months, the preliminary hearing process was held before the Provincial Court; it took another 16 months to obtain a Supreme Court trial date for the two remaining accused.

B.            Judicial History

(1)           British Columbia Supreme Court, 2012 BCSC 1735

[221]                      Verhoeven J. of the British Columbia Supreme Court dismissed Mr. Jordan’s s. 11(b) motion. He reached the following conclusions with respect to the total time to the end of the trial:

•                     Total length of delay: 49.5 months

•                     Inherent requirements: 10.5 months

•                     Crown delay: 2 months

•                     Institutional delay: 32.5 months

•                     Accused delay: 4 months

[222]                      Some of the delay present in this case was due to an underestimation of the time required to conduct the preliminary inquiry. While the Crown argued that the subsequent delay should be attributable to the defence, the trial judge ultimately attributed it as institutional delay, citing a lack of evidence supporting the Crown’s claims.

[223]                      The trial judge ultimately concluded that the accused only waived four months of the delay, due to a last-minute change in counsel. He rejected the Crown’s arguments that the delay before the superior court was waived. The Crown relied upon a letter it sent to defence counsel, asking whether the latter would be interested in an earlier trial date based upon a three-week (as opposed to a six-week) trial estimation. Defence counsel did not respond to this letter, and there was no evidence as to the reason behind this. The trial judge found that this did not amount to clear and unequivocal waiver.

[224]                      The trial judge estimated eight months of inherent time requirements before the provincial court (five months of intake requirements, two months for scheduling and preparation, and one month for the hearing and decision), and two and a half months before the superior court (two months to accommodate counsel scheduling, two weeks for the trial itself).

[225]                      The trial judge found that no time was attributable to the accused, but that the Crown was responsible for two months due to unavailability to continue the preliminary inquiry.

[226]                      The trial judge concluded that there was 19 months of institutional delay before the provincial court, noting the evidence supporting the shortage of institutional resources in those courts in British Columbia. He further concluded that there was 13.5 months of institutional delay before the superior court.

[227]                      The trial judge then considered both actual prejudice and inferred prejudice. He concluded that the accused was not greatly prejudiced with respect to any of his liberty or fair trial interests but that he did suffer some prejudice to his security interests in the form of stress and worry. However, he held that the prior charges against Mr. Jordan “substantially reduc[e] the degree of prejudice” that would otherwise be assigned to Mr. Jordan’s security interests: para. 124 (CanLII).

[228]                      The trial judge concluded that the delay present in Mr. Jordan’s case “substantially exceeded” the guidelines: para. 138. However, the delay was not unreasonable given the seriousness of the offences charged, the lack of substantial prejudice against the accused, and the reduced weight attributed to institutional delay.

(2)           British Columbia Court of Appeal, 2014 BCCA 241, 357 B.C.A.C. 137

[229]                      The British Columbia Court of Appeal dismissed Mr. Jordan’s appeal.

[230]                      Justice Stromberg-Stein agreed with the facts laid out by the trial judge. She also confirmed that the “application judge identified and applied the correct legal authorities and principles”: para. 13.

[231]                      On the first ground of appeal, Mr. Jordan argued that the judge should have used the full 34.5 months of delay in his s. 11(b) analysis, instead of the 17 months outside of the Morin guidelines. However, the court concluded that the application judge correctly assessed the delay period.

[232]                      Next, Mr. Jordan argued that the trial judge erred in attaching less weight to institutional delay. Justice Stromberg-Stein found that the judge’s assessment of 34.5 months as institutional delay was not based on a proper evidentiary record. However, this assessment was favourable to Mr. Jordan, and she declined to interfere with Verhoeven J.’s weighing of the institutional delay in comparison to other factors.

[233]                      Finally, Mr. Jordan claimed that the trial judge erred in his assessment of prejudice: by using the wrong quantum of delay and by failing to make a meaningful finding of inferred prejudice. The application judge found that Mr. Jordan experienced “some degree” of prejudice, but not a “substantial” degree of prejudice: C.A. reasons, at para. 46. This finding of fact is reviewable on a standard of palpable and overriding error. The Court of Appeal found that the trial judge’s assessment did not rise to this degree. The court affirmed the trial judge’s findings regarding actual prejudice, and held that the judge was “alive to the possibility of inferring prejudice” and did, in fact, infer some degree of prejudice from the delay: para. 51.

C.            Analysis

[234]                      Applying the analytical framework from Morin as elaborated and clarified above, I conclude that Mr. Jordan’s appeal should be allowed and the charges against him stayed because his constitutional right to be tried within a reasonable time was violated in this case. I will briefly consider the four steps in the analytic framework.

(1)           Is an Unreasonable Delay Inquiry Justified?

[235]                      I agree with the trial judge that the 49.5-month delay from the charges to the end of the scheduled trial date is sufficient to trigger an inquiry into whether the delay is unreasonable.

(2)           What Is a Reasonable Time for the Disposition of a Case Like This One?

(a)          Inherent Time Requirements

[236]                      The trial judge identified the periods of inherent delay present in the case as being 10.5 months. While the trial judge did not approach this on a purely objective basis, I nonetheless find no reason to interfere with this assessment as representing the reasonable inherent time requirements of a case of this nature, even treating this case as involving an in-custody accused or an accused subject to very restrictive bail conditions.

(b)         Institutional Delay

[237]                      This case proceeded through the Provincial Court and the Supreme Court of British Columbia. Under the Morin administrative guidelines, the reasonable institutional delays for both levels of court total between 14 and 18 months. Although it is debatable whether accepting the upper end of the range is appropriate in a case of this nature, for the purposes of my analysis I will proceed on the basis that 18 months of institutional delay would be reasonable.

[238]                      It follows that a reasonable period for the disposition of this case was 28.5 months.

(3)           How Much of the Delay That Actually Occurred Counts Against the State?

[239]                      We know that this case took 49.5 months in total. To determine the amount of delay that counts against the state we must subtract any period attributable to the defence and any period of unusual or unforeseen delay not fairly counted against the Crown.

(a)           Delay Attributable to the Defence

[240]                      The Crown’s main argument is that the trial judge erred in categorizing so much of the delay as institutional. The Crown makes multiple submissions regarding the categorization of delay between the charge to the arraignment hearing, from the arraignment hearing to the preliminary inquiry, of the adjournments of the preliminary inquiry, and in setting the six-week trial. For many of these submissions, the Crown argues that various periods should be considered “waiver” or conduct otherwise attributable to the defence.

[241]                      As stated above, for any period to be considered waived by the defence, the defence must have so indicated in clear and unequivocal terms. The trial judge noted that Mr. Jordan agreed that four months of the delay was “waived” because it resulted from his last-minute change in counsel. However, I see no reason to attribute any other period as being “waived” by Mr. Jordan. Moreover, I see no reason to classify any other period as being fairly attributable to Mr. Jordan.

(b)           Exceptional or Unavoidable Delay

[242]                      No such delay is present here.

(4)           Was the Delay That Counts Against the State Unreasonable?

[243]                      As discussed earlier, the reasonable time requirements for a case of this nature were 28.5 months. The case in fact took 49.5 months. The difference is 21 months. Of that, 4 months are attributable to the defence. The rest — a period of 17 months — counts against the state. In other words, this case took almost a year and a half longer than what would be a reasonable period to prosecute a case of this nature.

[244]                      This is not a close case. The time to the end of trial greatly exceeds what would be a reasonable time to prosecute a case of this nature. While there are societal interests in the trial on the merits of the serious drug crimes alleged against Mr. Jordan, these cannot make reasonable the grossly excessive time that it took society to bring him to trial.

D.           Other Issues Raised

[245]                      The parties raised a number of other issues, explicitly or implicitly, to which I will briefly respond.

(1)     Should some delay where the courts are unavailable be classified as inherent requirements if defence counsel is also unavailable?

[246]                      The inherent requirements of a case are determined objectively and when this is done as described earlier in my reasons, there is no overlap between the inherent requirements and institutional delay.

(2)     Should institutional delay be accorded “less weight” in determining the overall reasonableness of the delay?

[247]                      Under the revised framework, institutional delay is not given less weight than other delay that counts against the state.

(3)     Does the accused’s consent to an adjournment or later trial date constitute “waiver”?

[248]                      The onus is on the Crown to demonstrate that, when an accused agrees to an adjournment initiated by the Crown or to a trial date, it amounts to “waiver” and not “mere acquiescence in the inevitable”.

(4)     Should inherent requirements be subtracted from the final quantum of delay when assessing the overall reasonableness of the delay?

[249]                      Inherent requirements are not “subtracted” but are rather considered along with institutional delay in deciding what period of delay would be reasonable for a case of this nature.

(5)     Can the constitutionally tolerable length of institutional delay be extended if the accused did not suffer “substantial” or “significant” prejudice?

[250]                      As explained earlier, the answer is no: proof of actual prejudice is not required to find unreasonable delay.

 

(6)     Did the trial judge err in finding that the accused only suffered “some” and not “substantial” prejudice?

[251]                      I see no reason to interfere with the trial judge’s reasons to this effect.

(7)     Did the trial judge err when categorizing the delays in this case, specifically in attributing so much of the delay to Crown and institutional delay?

[252]                      I see no reason to interfere with the trial judge’s classification of delay in this case.

E.            Conclusion

[253]                      I would allow the appeal and would stay the charges against Mr. Jordan.

IV.        The Approach of Justices Moldaver, Karakatsanis and Brown

[254]                      It will by now be obvious that I fundamentally disagree with the approach proposed by my colleagues. It is, in my respectful view, both unwarranted and unwise. The proposed approach reduces reasonableness to two numerical ceilings. But doing so uncouples the right to be tried within a reasonable time from the Constitution’s text and purpose in a way that is difficult to square with our jurisprudence, exceeds the proper role of the Court by creating time periods which appear to have no basis or rationale in the evidence before the Court, and risks negative consequences for the administration of justice. Based on the limited evidence in the record, the presumptive time periods proposed by my colleagues are unlikely to improve the pace at which the vast majority of cases move through the system while risking judicial stays for potentially thousands of cases. Moreover, the increased simplicity which is said to flow from this approach is likely illusory. The complexity inherent in determining unreasonable delay has been moved into deciding whether to “rebut” the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases: para. 47.

A.           Reasonableness Cannot Be Captured by a Number

[255]                      One of the themes that appears throughout the Court’s jurisprudence on the right to be tried within a reasonable time is that reasonableness cannot be judicially defined with precision or captured by a number. The proposed ceilings are deeply inconsistent with this constant in our jurisprudence.

[256]                      In Mills, where this Court first considered the scope of s. 11(b), Lamer J. wrote that a “reasonable” time to trial cannot be determined with reference to specific numbers:

     Reasonableness is an elusive concept which cannot be juridically defined with precision and certainty. Under s. 11(b), however, as we are dealing with reasonableness as regards the passage of time, we have the advantage of being able to refer to precise stages of proceedings and events.

 

     This is not to say that reasonableness can be predetermined with precision. That would be “falling victim to the tyranny of numbers”. But the advantage to be found when dealing with time is that reasonableness can be determined with the help of the precision surrounding the happening of certain events, e.g. arraignment, the preliminary inquiry, the trial, and the time elapsed between. [p. 923]

[257]                      In Conway, L’Heureux-Dubé J. wrote for the majority that the “protection afforded by s. 11( b )  of the Charter  is not expressed in absolute terms” and that “the right to a speedy trial ‘is necessarily relative. It is consistent with delays and depends upon circumstances’”: p. 1672, quoting Beavers v. Haubert, 198 U.S. 77 (1905), at p. 87.

[258]                      In Smith, Sopinka J. for the Court elaborated on this point:

The question is, at what point does the delay become unreasonable? If this were simply a function of time, the matter could be easily resolved. Indeed a sliding scale of times could be developed with respect to specified offences which could be adjusted because of the special circumstances of the case. But it is not simply a function of time, but of time and several other factors. What those basic factors are is not the subject of disagreement. [p. 1131]

[259]                      In Askov and Morin, this Court again reiterated the importance of the balancing test in determining reasonable delay. In fact, in Morin, this Court specifically declined to create an administrative guideline for the “inherent” or “intake” time requirements of a case, noting the “significant variation between some categories of offences”: p. 792. Sopinka J. wrote that as “the number and complexity of [intake requirements of a case] increase, so does the amount of delay that is reasonable”: ibid.

[260]                      Thus, the Court has said on several occasions that reasonable inherent time requirements for cases do not lend themselves to the creation of administrative guidelines.

[261]                      Moreover, a judicially fixed ceiling for overall case disposition is at odds with jurisprudence arising from every other jurisdiction with a speedy trial guarantee of which I am aware. In Trial Within a Reasonable Time (1992), Michael A. Code wrote that “[i]t is generally foreign to the U.S. speedy trial jurisprudence to establish numerical standards of any kind”: p. 119. The presence of time limitations, whether judicial or statutory, are virtually unheard of in European jurisdictions. In Can excessive length of proceedings be remedied? (2007), the Venice Commission polled a number of jurisdictions ranging from Albania to the former Yugoslav Republic of Macedonia, all of which replied in the negative to the questions as to whether there was a deadline or fixed time frame in which the competent authorities need rule on a criminal matter: Section II (pp. 65-322). Statutory timelines are, of course, an entirely different matter and I will have more to say about them in a moment.

[262]                      There is no parallel between the administrative guidelines for institutional delay adopted in Askov and Morin and the ceilings for overall delay proposed in my colleagues’ reasons. As I have explained, institutional delay is concerned with how long one should have to wait for the court to be ready to hear the case. This is not a question that depends to any significant extent on the particular circumstances of the case. It is mainly a question of resources. It is quintessentially a judicial function under the Constitution to set some clear limits on the point at which the state’s plea of inadequate resources must give way to the constitutionally guaranteed right to be tried within a reasonable time. The administrative guidelines in Askov and Morin serve the reasonableness analysis by defining when state-provided court services should reasonably be available. Unlike the proposed ceilings, the administrative guidelines do not attempt to define what would be a reasonable time for trying all cases in all circumstances. Moreover, the administrative guidelines were intended to be generous and established “neither a limitation period nor a fixed ceiling on delay”: Morin, at pp. 795-96.

[263]                      The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose.

[264]                      Moreover, this approach unjustifiably diminishes the right to be tried within a reasonable time. As I see it, a case is not tried within a reasonable time if it has taken “markedly longer than it reasonably should have” (para. 48) to be tried. Other than in very unusual circumstances, that is what an accused has to show to establish a breach of s. 11( b )  of the Charter . But that is not enough under the proposed framework. When the elapsed time is below the ceiling, an accused would have to show not only that the case took “markedly longer” than it reasonably should have but also that he or she “took meaningful steps that demonstrate a sustained effort to expedite the proceedings”: para. 48. This requirement has no bearing on whether the time to trial was unreasonable. It is, in effect, a judicially created diminishment of a constitutional right, and one for which there is no justification. I see no basis in the constitutional text or the jurisprudence for imposing this burden on an accused person.

[265]                      My colleagues’ “qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” (para. 106) suggests that my concerns on this score are not theoretical. That examination shows that our superior courts found unreasonable delay in 20 percent of the cases where the delay was at or under the 30-month ceiling. The percentage is about the same for the provincial court cases at or under the ceiling. But under the proposed framework, none of these cases could be stayed absent proof by the accused that they had attempted to actively expedite the process. Imposing this burden is contrary to the Court’s holding in Askov that “it is the responsibility of the Crown to bring the accused to trial” and that “any inquiry into the conduct of the accused should in no way absolve the Crown from its responsibility to bring the accused to trial”: p. 1227.

[266]                      The proposed approach in effect substitutes a right to be “tried under the ceiling” for a right to be tried within a reasonable time. In doing so, it unjustifiably diminishes the right guaranteed by the Charter  and sets aside a central teaching of our s. 11(b) jurisprudence — that reasonableness cannot be captured by a number.

B.            Creating Presumptive Ceilings for Reasonableness Is a Legislative, Not a Judicial Task

[267]                      Creating fixed or presumptive ceilings is a task better left to legislatures. If such ceilings are to be created, Parliament should do so. As Lamer J. stated in Mills: “There is no magic moment beyond which a violation will be deemed to have occurred, and this Court should refrain from legislating same” (p. 942; see also Conway, at p. 1697 (concurring)).

[268]                      Prof. P. W. Hogg’s Constitutional Law of Canada (5th ed. Supp.) notes that a number of commentators have advocated that Parliament enact fixed time limits for trials: s. 52.5. The Law Reform Commission in Trial Within a Reasonable Time: A Working Paper Prepared for the Law Reform Commission of Canada (1994) (“Working Paper”) pointed to a number of considerations that weigh in favour of legislative standards, instead of judicially imposed ceilings: pp. 5-6.

[269]                      First, courts do not, and should not, function as legislatures. As the Working Paper put it:

The courts have been given a greatly expanded role with the Charter , but their essential function has not changed. They do not function as legislating bodies; their principal task is adjudicating conflicts brought before them. Rather, it is the role of Parliament to advance and enhance constitutional rights through legislative standards which the Charter , by its very nature, can provide only in general terms. As Chief Justice Dickson stated in Hunter v. Southam Inc.[, [1984] 2 S.C.R. 145, at p. 169]:

    

While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. [p. 5]

[270]                      The Working Paper also pointed out that legislative timelines can be more easily changed:

Another advantage of statutory rules or internal court goals is that they can more easily be adjusted and fine-tuned: constitutional standards, in contrast, are difficult to amend. This will be particularly valuable in the case of the right to a trial within a reasonable time. [p. 6]

[271]                      In addition, the Working Paper noted that legislation can more comprehensively address the root causes of delay:

     In addition, statutory provisions are not restricted to establishing time-limits. A Charter decision can do little beyond setting a maximum allowable delay and providing a remedy when it is exceeded. While this approach may be satisfactory from the perspective of the individual accused, it does not address the societal interest. Statutory provisions, on the other hand, can address the underlying causes of delay, rather than merely responding to failures to meet the standard. [p. 6]

[272]                      Creating presumptive, fixed ceilings is a matter for Parliament, not for this Court, in my respectful view.

[273]                      My colleagues write, and I agree, that giving meaningful content to constitutional rights is entirely consistent with the judicial role: para. 115. But that is not what the proposed ceilings do. The proposed ceilings do not so much define the content of the s. 11(b) right to a trial within a reasonable time as place new limits on the exercise of that right for reasons of administrative efficiency that have nothing to do with whether the delay in a given case was or was not excessive. In my respectful view, this is inconsistent with the judicial role.

C.            The Proposed Presumptive Ceilings Are Not Supported by the Record

[274]                      The proposed ceilings have no support in the record that was placed before the Court in this case. The Court did not hear argument about the impact of imposing them, which remains unknown.

[275]                      Moreover, the ceilings appear to be illogical. The ceilings accept the Morin guidelines for institutional delay: 8 to 10 months in provincial courts and 14 to 18 months in cases involving a preliminary hearing and a trial (para. 52). This means that the proposed ceilings allow 8 to 10 months for the inherent time requirements of the case in provincial courts, which seems long, while allowing only marginally more inherent time requirements (12 to 16 months) for cases — generally significantly more complex cases — that involve a preliminary inquiry and a trial. As well, under the ceilings, the seriousness or gravity of the offence cannot be relied on to discharge the onus which the ceilings impose: para. 81. Yet under the transitional scheme, this remains a relevant factor: para. 96. The illogical result is that serious offences are more likely to be stayed under the ceilings than under the transitional scheme.

[276]                      What evidence there is in the record suggests that it would be unwise to establish these sorts of ceilings. For the vast majority of cases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist. If anything, such high ceilings are more likely to feed such a culture rather than eliminate it.

[277]                      Consider the statistical information that we have in the record which is from the Provincial Court of British Columbia. It suggests that the proposed ceiling for the provincial courts is too high to be of any use in encouraging more expeditious justice in the vast majority of cases.

[278]                      The proposed ceiling is set for 18 months in provincial courts. But the median time to disposition of matters in the Provincial Court of British Columbia was 95 days in 2011-2012, with the average being 259 days, both well below the proposed ceiling: B.C. Justice Reform Initiative, A Criminal Justice System for the 21st Century (2012), at p. 30. Of course, these statistics relate to all matters, the vast majority of which (about 95 percent) are disposed of without trial: p. 33. The time to trial varies widely by court location with the time to the commencement of trial for a 2-day case varying in the Provincial Court from 12 to 16 months: p. 34. (I note that this period does not include the period from intake until a trial date is set and measures only to the beginning, not the end of the trial: “Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources” (September 2010) (online), at p. 21.) But there is not much here to lead one to think that the ceilings will do anything to improve the timeliness of the vast majority of criminal cases in the Provincial Court. And, as I will discuss shortly, the ceilings put a small percentage of the total caseload, but a large number of long cases, at serious risk of judicial stay.

[279]                      The “qualitative review” conducted by Justices Moldaver, Karakatsanis, and Brown “assisted in developing the definition of exceptional circumstances” and provided “a rough sense of how the new framework would have played out in some past cases”: para. 106. This examination has not been the subject of adversarial scrutiny or debate, and how it “assisted” in developing the definition of exceptional circumstances is unstated. In any case, the examination as I have reviewed it suggests that the proposed ceilings are unrealistic and that their implementation risks large numbers of judicial stays.

[280]                      What does this examination tell us about the appropriateness of the ceilings? Consider first the superior court cases over the past 10 years in which stays were granted. The average “net” delay was about 44 months, with the median “net” delay being about 37 months. This provides no support for a ceiling of 30 months for superior court cases. The examination is no more supportive in relation to the provincial courts. Looking at provincial court cases in which stays were granted, the average “net” delay was about 27 months and the median was 24.5 months (I have excluded Quebec from this calculation because of the distinctive jurisdiction of the Court of Québec). Once again, my colleagues’ examination of the cases fails to support the proposed ceiling of 18 months for provincial court cases.

[281]                      Developing the proposed ceilings in the absence of evidence and submissions by counsel contrasts with the Court’s development of the administrative guidelines for institutional delay in Askov and Morin. In those cases, the Court had the benefit of extensive evidence including statistical information from comparable jurisdictions and expert opinion: Morin, at p. 797. The record in Morin included four volumes of evidence, largely consisting of evidence from three experts with exhibits on the issue of institutional delay across various jurisdictions in Canada — in fact, two volumes of the record were exclusively devoted to such information. This record contained evidence from a solicitor in the region of Durham, the region at issue in Morin, who was a member of the trial delay reduction committee in the region. His evidence included statistical information and information about the efforts made to reduce delay in the region. Furthermore, the record included extensive evidence from Professor Baar, who “has written and consulted extensively on court administration in general and case flow management in particular in Canada, the United States and other jurisdictions”: R. v. Morin (1990), 55 C.C.C. (3d) 209 (Ont. C.A.), at p. 213. This extensive record enabled the Court to analyze the respective caseloads of provincial courts and superior courts, the increase in caseload in particular regions (including in Durham), reasons for the growth in this caseload, and the abilities of various courts to handle the increasing caseload: see Morin (S.C.C.), at pp. 798-99. The broad range set out in the administrative guidelines in Morin (eight to ten months in provincial court; six to eight months from committal to trial) was derived from the considerable mass of evidence then before the Court.

D.           There Is a Significant Risk of Negative Consequences

[282]                      My colleagues acknowledge that, if their new framework were applied immediately, there would be a risk of thousands of cases being off-side the new ceilings and being judicially stayed as a result: para. 98. There are worrying signs in the limited record that we do have that large numbers of cases (although not a large percentage of the total cases dealt with by the courts) would be at risk if the presumptive ceilings were applied.

[283]                       The record indicates that, in the British Columbia Provincial Court, as of March 31, 2010, there were over 2,000 adult criminal cases pending for over 18 months. As of 2011, this represented 13 percent of the caseload of the Provincial Court. As of 2012, 4 percent of pending cases in the Provincial Court had been in the system for more than two years: “Justice Delayed”, at p. 23; B.C. Justice Reform Initiative, at p. 35. Thus the limited record that we do have suggests that the proposed ceiling of 18 months in provincial courts, if applied now, would put thousands of prosecutions in the Provincial Court at serious risk of being judicially stayed. Dramatic improvements for the group of cases at the top end of the delays would be required to avoid thousands of judicial stays under the proposed ceilings.

[284]                      The examination of the case law undertaken by my colleagues increases rather than diminishes this concern. As I noted earlier, the average time for stays in superior courts, based on that analysis, is about 44 months, with the median being about 37 months. This time period significantly exceeds the proposed 30-month ceiling. If these figures can be relied on, they suggest that the proposed ceilings would require unrealistic and improbable improvement in case processing times to avoid many judicial stays.

[285]                      The transitional regime which my colleagues propose is intended to avoid the problems that would arise from immediate application of the presumptive ceilings. In my view, these transitional provisions will not avoid the risk of thousands of judicial stays of proceedings.

[286]                      Although my colleagues maintain that different criteria should not apply during the transitional period, they in fact establish different criteria for transitional cases. To take only one example, there will be a “transitional exceptional circumstance” if the parties reasonably relied on the law as it previously existed and have not had time “to correct their behaviour”: para. 96. In other words, the ceilings do not apply to some transitional cases.

[287]                      The basic problem with this is that transitional provisions create a Charter  amnesty. What is unreasonable according to the Constitution is treated as if it were reasonable. The justification for this is that parties require time to correct their behaviour following the release of this decision. However, this sort of Charter  amnesty is contrary to our s. 11(b) jurisprudence.

[288]                      Morin ruled against transitional provisions in s. 11(b) cases and explained why purporting to set up a parallel system of rules to govern existing cases is wrong in principle. Sopinka J. for the majority wrote, at pp. 797-98:

. . . the Court of Appeal purported to apply a transitional period to accommodate the situation in Durham. While a transitional period may have been appropriate immediately after the Charter  came into effect, it is not appropriate any longer. This Court so held in Askov. The use of a transitional period implies a fixed period during which unreasonable delay will be tolerated while the system adjusts to a new set of rules. It imposes a general moratorium on certain Charter  rights. For this reason and quite apart from the statement in Askov that the transitional period had ended, I would not find it appropriate in this case. It appears to me undesirable to impose a moratorium on Charter  rights every time a region of the country experiences unusual strain on its resources. It is preferable to simply treat this as one factor in the overall decision as to whether a particular delay is unreasonable. [Emphasis added.]

[289]                      In my opinion, this teaching is both authoritative and sensible. I would continue to apply it.

[290]                      Moreover, my colleagues indicate that the proposed transitional exception applies to problems of institutional delay. But it is hard to see how this can be justified by the need to give parties an opportunity to correct their behaviour. The guidelines for reasonable institutional delay were established (at the very latest) in Morin, almost a quarter of a century ago. Twenty-four years is long enough for parties to modify their behaviour to comply. No transitional arrangements for institutional delay can now be justified.

[291]                      My colleagues write that the “contextual application of the [new] framework is intended to ensure that the post-Askov situation [in which tens of thousands of charges were stayed in Ontario alone] is not repeated”: para. 94. In other words, the hope is that the presumptive ceilings that are unrealistic now will become realistic in the fairly near future. But there is no basis in the record or in logical reasoning to suppose that these ceilings, if dramatically unrealistic now, will become less unrealistic with the passage of time. In my respectful view, this Court should not impose on the criminal justice system the risk that thousands of prosecutions will be judicially stayed. Doing so is especially regrettable when it is done, as is proposed here, in a virtual factual vacuum, with no opportunity for submissions about either the wisdom of this approach or the accuracy of the assumptions on which it is based.

[292]                      My colleagues maintain that there is a “culture of complacency towards delay” (para. 40) that has emerged in the criminal justice system, which is not addressed by the Morin framework. They argue that their revised approach to s. 11(b) is warranted, given that under the current framework “participants in the justice system . . . are not encouraged to take preventative measures to address inefficient practices and resourcing problems”: para. 41. But, contrary to these broad and unsupported generalizations, even the limited record before the Court indicates that the problem of excessive delay has been the focus of extensive attention by the British Columbia Provincial Court and by the governments of British Columbia, Alberta, Newfoundland and Labrador, and Ontario. The most recent statistics in the record indicate that the situation is, if anything, getting better, not worse: see “The Semi-Annual Time to Trial Report of the Provincial Court of British Columbia to March 31, 2015” (online), at p. 5.

[293]                      Imposing judicially created ceilings as an aspect of our s. 11(b) jurisprudence presents risks. If we are to take these risks through the imposition of ceilings or other time limits, these limits should be created by legislation and informed by facts.

E.            The Promised Simplicity of the Ceilings Is Likely Illusory

[294]                      Even if creating ceilings were an appropriate task for the courts and even if there were an appropriate evidentiary basis for them, there is little reason to think these presumptive ceilings would avoid the complexities inherent in deciding whether a particular delay is unreasonable in all of the circumstances.

[295]                      We can look to the experience of other jurisdictions. It appears that even fixed limitation periods set by legislatures have not succeeded in avoiding complexity. Various states in the United States have created statutory time limitation periods dealing with overall delay in criminal proceedings. At the federal level, there is the Speedy Trial Act of 1974, 18 U.S.C. § 3161, and there are similar provisions in many states: W. R. LaFave et al., Criminal Procedure (5th ed. 2009), at pp. 892-93. These provisions create time limitations, but also include a number of contingencies to account for the plethora of different circumstances under which criminal cases may arise: pp. 895-97. In short, to be workable, the legislated limits inevitably require that a number of factors be balanced and considered in determining whether any case or charge should be dismissed: p. 897. But these contingencies and this balancing simply give rise to the sort of litigation that the limits were supposed to avoid: see S. Hopwood, “The Not So Speedy Trial Act” (2014), 89 Wash. L. Rev. 709, at p. 715.

[296]                      Turning to the proposed scheme, it seems to me that rather than avoiding complexity, it simply moves the complexities of the analysis to a new location.

[297]                      I turn first to cases in which the delay exceeds the presumptive ceiling. Departure from the ceiling may be required by a variety of circumstances: “discrete exceptional events” (para. 75), including delay caused by unexpected recantation by a complainant and other unforeseen trial delays; delay resulting from a case’s particular “complexity” (para. 77); and whether particular periods of delay could reasonably have been mitigated. It is hard to see how this framework is likely to bring greater simplicity to the analysis.

[298]                      The same applies to the burden on the defence in cases which fall below the ceilings. Under the proposed framework, the defence has the burden to show, first, that the time required to dispose of the case “markedly exceeds the reasonable time requirements of the case”: para. 87. In order to consider a defence attempt to discharge this burden, the court will have to consider a variety of factors, including “the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”: ibid. These factors largely mirror the test under the existing jurisprudence.

[299]                      The defence must also show that it took “meaningful, sustained steps to expedite the proceedings”: para. 84. The defence must show that “it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications . . . reasonably”: para. 85. I have already explained why I think it is inappropriate to impose this burden. But putting that aside, the need for these inquiries increases rather than reduces the complexity of the analysis mandated by the existing jurisprudence.

[300]                      Finally, consider the proposed transitional provisions. It is unexplained how the Crown will be able to satisfy the court that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” in the relevant jurisdiction, let alone how it will be shown that “the parties have [or have not] had time following the release of this decision to correct their behaviour”: para. 96. Little imagination is needed to see the ballooning evidentiary implications of these elements of the scheme. Also, it seems that for transitional cases below the ceiling, unlike cases subject to the new template, the defence does not have to prove having taken initiative to expedite matters in the period preceding this decision in order to make out a case of unreasonable delay. But doing so will assist the defence claim of unreasonable delay. The result is that even in transitional cases, the parties will be parsing the record to show how the defence did, or did not, try to move things along.

[301]                      These considerations suggest that the proposed presumptive ceilings will do little to simplify the task of determining whether the delay in a particular case violates the accused’s right to be tried within a reasonable time. In one way or the other, the judge must look at the circumstances of the particular case at hand.

F.             Conclusion

[302]                      I am not convinced that this Court should impose the scheme proposed by my colleagues. It diminishes Charter  rights. It casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change — and this in the context of a case in which all of us agree that the result is clear under the existing jurisprudence. It has not been the subject of adversarial scrutiny or debate. The record does not support the particular ceilings selected. Nor, so far as I can tell, does the Court-conducted examination of reported cases. And it risks repetition of the Askov aftermath in which thousands of prosecutions were judicially stayed. In short, the proposed scheme is, in my respectful view, wrong in principle and unwise in practice.

V.           Disposition

[303]                      I would allow the appeal and enter a stay of proceedings.

                    Appeal allowed.

                    Solicitors for the appellant: Peck and Company, Vancouver.

                    Solicitor for the respondent: Public Prosecution Service of Canada, Vancouver.

                    Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Calgary.

                    Solicitors for the intervener the British Columbia Civil Liberties Association: Farris, Vaughan, Wills & Murphy, Vancouver.

                    Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Addario Law Group, Toronto.