Charter rights: more on the right to trial within reasonable time

Last week, the Supreme Court of Canada overhauled how a Canadian court will evaluate whether a criminal defendant’s right under the Canadian Charter of Rights and Freedoms to trial within a reasonable time has been impinged. In a previous post, we discussed the case of R. v. Jordan in which the Supreme Court established a new framework that sets a presumptive ceiling of reasonable time between bringing criminal charges and concluding the trial.

The court advised in Jordan that everyone involved with the Canadian justice system must work together for more timely trials that achieve the reasonableness the constitution requires, instead of the current “culture of complacency towards delay.” The court called for “broader structural and procedural changes” as well as daily efforts to achieve this goal.

We described how the Ontario courts will be impacted by the Jordan decision. For less serious criminal charges in the Ontario Court of Justice, the presumptive ceiling is 18 months. For more serious charges heard in the Ontario Superior Court of Justice (or in the Ontario Court of Justice after a preliminary inquiry), the presumptive ceiling is 30 months. If the defendant caused or waived any part of the delay, that part of the time is subtracted from the total.

For the Crown to overcome the presumption that a delay to trial that exceeded the ceiling was unreasonable in violation of the Charter, the prosecution must show that exceptional circumstances made the delay reasonable and therefore constitutional.

The court elaborated about what kind of circumstances would be exceptional, meaning beyond the Crown’s control. Emphasizing that while the kinds of circumstances qualifying as exceptional are not all foreseeable, the court believed that they would usually fall into one of two categories:

• Discrete events like sickness or an unplanned trial event; the time for such an event would be subtracted from the total delay
• Particularly complex cases justify delay and make it reasonable beyond the cap

The court said that three particular things do not equal exceptional circumstances that would justify departure from the presumptive ceiling time:

• “Chronic institutional delay”
• Seriousness of the charged crime
• Absence of prejudice, meaning that an unreasonable delay cannot be excused just because that delay did not otherwise harm the defendant

In another post, we will talk about how a criminal defendant can show unreasonable delay when it is below the presumptive ceiling under Jordan.