Accounting for Law

SCC decision creates presumptive ceilings to curb court delay


OTTAWA – The Supreme Court of Canada, citing a ``culture of complacency'' in the justice system, has set out a new framework for determining whether a criminal trial has been unreasonably delayed.

In a potentially groundbreaking 5-4 decision Friday, the high court said the old means of determining whether a person's constitutional right to a timely trial had been infringed was too complex and unpredictable.

The Charter of Rights and Freedoms says someone charged with an offence has the right to be tried within a reasonable time.

Under the new framework, an unreasonable delay would be presumed should proceedings – from the criminal charge to conclusion of a trial – exceed 18 months in provincial court, or 30 months in a superior court.

However, these benchmarks are not set in stone.

The Crown could challenge the notion that a delay is unreasonable by showing there were ``exceptional circumstances,'' a majority of the court said in its reasons.

These circumstances could include something unforeseen and beyond the Crown's control, such as a sudden illness, or a case requiring extradition of an accused from another country. They might also arise in ``particularly complex'' cases that involve disclosure of many documents, a large number of witnesses or a significant need for expert evidence.

The Supreme Court said that as a transitional measure for cases already in the system, the new framework must be applied ``flexibly and contextually.''

The right to be tried within a reasonable time is central to the administration of Canada's criminal justice system, the high court said.

``An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.''

However, unnecessary procedures and adjournments, inefficient practices and inadequate institutional resources have been ``accepted as the norm and give rise to ever-increasing delay,'' the ruling said.

The old framework failed to address this ``culture of complacency,'' and participants in the justice system – police, Crown counsel, defence lawyers, courts, provincial legislatures and Parliament – were not encouraged to ``take preventative measures to address inefficient practices and resourcing problems,'' the court said.

The Supreme Court made the ruling in deciding that the British Columbia drug convictions of Barrett Richard Jordan must be set aside due to an unreasonable delay.

In a dissenting opinion, a minority of the court agreed the charges against Jordan should be stayed, but called the new framework for gauging delays unwarranted and unwise, saying it could lead to thousands of prosecutions being tossed out.

In an interview with, Toronto criminal lawyer Breese Davies says the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, is a major departure from the existing framework for considering when delay in criminal proceedings is unreasonable.  

“It creates ‘presumptive ceilings’ for delay that will be tolerated in the system,” she tells the online legal publication. “While there were guidelines in place based on past SCC decisions in Askov and Morin, the SCC has sent a clear signal in Jordan that if criminal matters are not completed within the prescribed timelines, the Crown has the burden of explaining why any additional delay should be tolerated.”

Davies says the notion of “presumptive ceilings” is a good idea.  

“They give clear guidance to everyone in the system,” she explains. “They can also create strong incentives for everyone to do their part to minimize delay.”

But Davies notes, in her view, the presumptive ceilings were set too high for some types of matters.  

“Our criminal justice system should be able to get summary conviction matters completed in much less than 18 months,” she says. “And we should be able to get serious trials done in less than 30 months.”

Davies says criminal charges are incredibly disruptive to people’s lives — some become jobless, they can lose their children, they may be kept out of their homes because of bail restrictions and enormous amounts of stress can be felt by all parties.

“We should not tolerate 18 months delay in routine cases,” she says. “With ‘presumptive ceilings,’ there is no incentive on the part of the government or the Crown to get trials done faster. They now know that as long as they are within the 18 months, it will probably be fine. I think the SCC missed an opportunity to really create incentives to improve the system in a more substantive way.”

Davies says the fact the high court has done away with the need to prove the accused has been prejudiced by the delay is another important positive development.

“This decision seems to reflect an acceptance that delays in the system are inherently prejudicial,” she says. “Accused people no longer have to prove they are particularly harmed by the delay in order to be afforded a remedy.” 

– With files from

© 2016 The Canadian Press

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