The Supreme Court ruled in favour of the accused. And from that decision, identified a new presumptive ceiling for what would constitute an unreasonable delay – 18 months for provincial cases, and 30 months for superior court cases. Since then, about 200 cases have been thrown out of court. The media are crying foul, pointing at the apparent injustice that alleged murderers, sexual deviants, drug dealers and child predators are being freed without being tried.
First of all, delays in the justice system do not benefit anyone. It does not benefit the court, which may become more backlogged as cases are pushed back and new cases are added to the list. It does not benefit the Crown prosecution, which has a vested interest in achieving a conviction for their efforts. It definitely does not benefit the accused, who may be in fact not guilty of the allegation, but in many cases must remain in custody until their case reaches an outcome.
There are more than 320,000 criminal cases that proceed through Canadian courts each year. The fact that only 204 cases were dropped as a result of unreasonable delay is actually a good thing. It means only .06% of cases were unreasonably delayed. It means the courts are doing their jobs in trying to get cases concluded as quickly as reasonably possible. Indeed, in BC changes have already been made. From a Vancouver Sun article:
“B.C.’s Supreme Court recently issued new directions for so-called ‘mega-trials,’ or large or complex criminal cases that have the potential to occupy a significant amount of court time or risk delays. The directions call for a case management judge to be appointed early in the process and for tight time limits for disclosure, pre-trial applications and the trial itself.
Associate Chief Justice Austin Cullen said in an interview the court began reviewing complex trial procedures about 18 months before the Jordan decision. But he said the ruling helped ‘spur us on and made us realize that we’re doing something useful.”
How were unreasonable delays decided before the Jordan decision?
Just reading the media reports would have you convinced that the people charged in most of these cases experiencing unreasonable delay were already guilty. That any delays they experienced in court was the result of their own actions. That’s not how it works.
Before you can understand precisely what changed with the Jordan decision, you need to understand how the court has traditionally determined whether a case is unreasonably delayed. R. v. Morin, in 1992, laid out four factors:
1. the length of the delay
2. waiver of time periods
3. the reasons for the delay:
- – inherent time requirements of the case;
- – actions of the accused;
- – actions of the Crown;
- – limits on institutional resources;
- – other reasons for delay;
4. prejudice to the accused.
Jordan changed this up a bit, instead stating that if the ceiling is exceeded and that it wasn’t due to the fault of the accused, it’s the Crown prosecution’s job to prove “exceptional circumstances” caused the delay.
There are two general types of “exceptional circumstances.” Discrete events: such as illness or something sudden that comes up. Particularly complex cases: situations where the case ought to require more time because of its complexities.
Exceptional circumstances are defined loosely:
- that they are reasonably unforeseen or reasonably unavoidable
- that they cannot reasonably be remedied
The defence can still raise an argument of unreasonable delay, even if the case hasn’t reached the presumptive ceilings. But, there are requirements that must be met to do this:
- that the defence took meaningful steps to expedite the proceedings
- that the case took markedly longer than it should have
Unless the defence is able to prove these two factors, the courts must not grant a stay if a case has not passed the 18 and 30 month limits.
For all existing cases, these new limits do apply, but with two caveats.
- the Crown is allowed to satisfy the court, by way of a “transitional exceptional circumstance” which shows the time taken so far is reasonable, based on the previous version of the law.
- for existing cases that didn’t reach the new presumptive ceiling, the court would only consider whether the case took markedly longer than it ought to have taken, under the previous rules.
Who is responsible for these unreasonable delays?
In our view, the courts have made it abundantly clear that most of the reasons for delay have nothing to do with the actions of the defendant. It’s easy to lump up 204 cases across Canada and say that hundreds of apparent criminals have been released. But if you want to really understand the issue, you have to consider the unique factors in each case where there was an unreasonable delay.
One case in BC Provincial Court that was stayed following the Jordan decision is R.v. Cooper, which involved a man charged with gun and drug related charges. His initial charges were laid on Nov. 29, 2013. However, it would be another 39 months and 18 days before these charges were expected to be brought to trial. Here’s what happened.
The unreasonable delay in R. v. Cooper
It is important to remember any actions that delayed the case, but were the fault of the accused, is subtracted from the period of delay that is alleged. The same goes for any waivers defence made – that is, if the accused agreed to the action that led to delay, then that period of delay is waived.
In R. v. Cooper, initially, the court had reserved trial dates for April 22, 2015 to May 11, 2015. But it wasn’t until just a few months before the trial date that the Crown approved another drug trafficking charge, and finally disclosed documents relating to a search warrant. Despite this, the accused decided to continue on as scheduled. But then on April 28, 2015, in the middle of the scheduled trial time, the Crown again introduced new information relating to another search warrant. It was the first time the court heard of this new information, and disclosure had to be provided.
So the trial was delayed. When defence tried to fix a new date by attending court on May 1, the Crown didn’t show up. More than a week later, both defence and the Crown agreed to set new trial dates for March 21 to April 1, 2016.
Those trial dates didn’t work out, either, since neither side were finished arguing what evidence could and couldn’t be used. So again, new trial dates were scheduled. This time, for Jan. 9, 2017 to Jan. 27, 2017.
By October, 2016, however, the accused served notice that the case had now been in the courts for too long. A hearing was held in December 2016, where it was decided that the case had been delayed significantly longer than the 18 months allowed under the new Jordan rules.
The court determined the total delay was about 36 to 38 months. The court found the defence contributed to, at most, 2.75 months in delay.
Is a three-year delay still too short?
Much has been said about how these new presumptive ceilings will result in waves of criminals being set free. This is clearly not the case. There are clear guidelines, rules and exceptions allowed to be raised by the prosecution to allow long trials in cases where it’s justified.
However, many other cases, such as R. v. Cooper, it was evident much of the delays were due to the Crown introducing new submissions at inconvenient times. In the above case, the initial trial date may have be just fine, had the Crown not attempted to include another trafficking charge on top of the seven charges Cooper was already facing, plus disclosing long-sought documents just months before trial, in addition to documents related to a warrant the court wasn’t even aware of.
These time limits send a clear message. If an accused is to be tried in court, the Crown must be ready to bring the case to trial in a reasonable amount of time. Disclosing documents late, introducing new submissions unexpectedly, approving additional charges shortly before trial; all these things may be well-intentioned, but they are simply unfair to an accused whose innocence is presumed until proven guilty.