We return today to a topic we have covered twice before: last week’s important Supreme Court of Canada decision that established a new framework for a Canadian court to use in measuring whether a delay to a criminal trial was unreasonable in violation of the defendant’s constitutional right to a speedy trial.The Supreme Court in the case of R. v. Jordan set a presumptive ceiling of reasonable time within which a criminal trial must be concluded to receive a presumption of compliance with the constitutional requirement under the Canadian Charter of Rights and Freedoms that a criminal defendant have a trial within a reasonable time.As we wrote previously, for defendants in the Ontario court system, the presumptive ceiling in the Ontario Court of Justice is 18 months and in the Ontario Superior Court of Justice (or the Court of Justice after a preliminary inquiry) is 30 months. Periods of delay attributed to or waived by the defence are subtracted from the total amount of time from charging to trial conclusion.The Crown may overcome the presumption of unreasonable delay by showing that exceptional circumstances beyond the Crown’s control were the cause. A uniquely complex case overcomes the presumption of unreasonableness. In addition, the presumptive ceiling number may be reduced if the prosecution can show that discrete events contributed to the delay. Examples could be sickness or a family emergency that delayed a trial.Today we want to discuss how under the new framework the criminal defendant can show that delay was unreasonable even in a case when the total time through trial resolution was below the presumptive ceiling. The burden to prove this is on the defence and the unreasonableness must be clear.The only way to show unreasonable delay below the presumptive ceiling is to show that both of these are true:
- The defence took meaningful, yet still reasonable, “steps that demonstrate a sustained effort to expedite the proceedings” in four specific ways listed by the court.
- The time from charges to conviction was “markedly longer than it reasonably should” have. This does not have to be an exact calculation of reasonableness, but considers various factors like the complexity of the matter and “local considerations.”