Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees the right to a criminal trial within a reasonable time. But when will a criminal case get thrown out for delay? If the delay in completing the trial is judged to be “unreasonable”, the court must stay the charges. This would effectively end the criminal prosecution. So when will delay be considered “unreasonable”? The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, established presumptive time limits for the completion of criminal trials. If the trial is being held at the Ontario Court of Justice, the trial must be completed within 18 months (1.5 years) of the charge being laid. If the trial is being held at the Superior Court of Justice, the time limit is 30 months (2.5 years).
But predicting whether or not a case will be stayed is not as simple as looking at the calendar. The Court will engage in a process to determine appropriate deductions from the “clock” and/or whether a broad exception will apply so that even when a case takes longer than 18 or 30 months, the charge my still not be thrown out.
The Process of Determining Whether Delay is “Unreasonable”
In order to determine whether or not a criminal case will be thrown out for unreasonable delay, the court will first subtract any “defence delay”. The Court will then decide if there is an exceptional circumstance in the particular case. Such circumstances would have to either be “discrete events” or “particular complexity”. The steps the courts will follow were helpfully summarized an Ontario Court of Appeal decision called R. v. Coulter, 2016 ONCA 704
#1: Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
#2: Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
#3: Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
#4: If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
#5: Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
#6: If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
#7: If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
Let’s briefly examine the three main circumstances that could prevent a charge from being throw out even if the total delay in a case exceeds the presumptive Jordan ceiling.
We will then address the question of “under-ceiling” delay.
Defence Delay
The court’s first step is to determine how much time, if any, should be attributed to the defence. The basic principle is that time will be deducted from the “clock” for any time period that was explicitly waived by the defence or was caused solely by the defence’s conduct.
This step in the process works as a mathematical calculation. The amount of defence delay is calculated in months and days. The number is then simply subtracted from the total amount of time it took from the laying of the information until the (anticipated) completion of trial. Say, for example, the total time from the laying of a charge to the completion of trial is 20 months. Then suppose that the court determined 6 months were caused solely by a defence adjournment of the trial because the accused wanted to switch lawyers. Six months would be subtracted from 20 months. The net delay would be 14 moths. This would be below the presumptiveJordan ceiling.
There is complexity in when and why certain periods of delay will or will not be deducted as defence delay. One area of particular uncertainty arises when the court offers dates for trial for which the defence (or, more commonly, their lawyer) is unavailable. On its face, if the Crown and Court are ready to set a trial on a certain day but the defence is not, this is delay caused “solely by the defence” and is therefore deducted. However, it is not necessarily correct to deduct the entire period of time between a trial date the defence has rejected and the eventual trial date. For example, the court may offer June 1 for trial. The defence lawyer may be unavailable due to other obligations. If the next date the Court can offer is December 1, it is not correct to say that this entire six months were cased “solely” by the defence. In fact, it is the Court that was not available from June 2 to November 30. The judge deciding the 11(b) Application will have to consider all the circumstances when deciding how much – if any – of such time is deductible as “defence delay”.
As a basic premise, however, the deduction of defence delay is an easy concept to grasp: if it is the accused and not the state that caused some portion of delay, the accused cannot blame the state for that portion of the delay.
Discrete Events
The first “exceptional circumstance” that may exist is the discrete event.
A discrete event is an event that lies outside the Crown’s control. It will be an event that is reasonably unforeseen or reasonably unavoidable. There is no closed list of what qualifies as a discrete event. Some examples include a trial that has to be adjourned due to the illness of a participant, or a trial that had to be adjourned due to COVID shutdowns.
It is important to note, however, that the mere existence of a discrete event does not necessarily mean that all time flowing from that event will be deducted from the total delay. The Crown has an obligation to reasonably remedy delays arising from the event once they arise.
It is important when litigating an 11(b) Application in which the Crown claims a discrete event exception to pay close attention to what efforts they did or did not take to remedy the delay that arose.
Like with defence delay, the result of a finding of discrete event delay is a mathematical calculation: the relevant time is simply subtracted from the total delay.
It is the Crown’s onus to prove that this exception applies in any given case.
Particularly Complex Cases
The “Particularly Complex Case” exception operates differently. This is not a matter of determining how much delay was caused by an exceptional circumstance (and subtracting that time). Rather, this is a qualitative assessment as to whether, in the circumstances of a particular case, the matter was so complex that the total delay is justifiable. That is, that even though it exceeds the ceiling, it is still reasonable for a case so complex.
A case can qualify as “particularly complex” if, because of the nature of the evidence or the nature of the issues, it requires an inordinate amount of trial preparation time such that the delay is justified. Courts will look at the number of accused, the number of witnesses, the complexity of the legal issues and the volume of disclosure as indicia of complexity. This is not an exhaustive list. No particular finding on any one factor is necessary to ground a finding of particular complexity. Nor is the presence of one or more indicator of complexity necessarily enough to qualify the case for the exception.
If the Crown wants to claim complexity, the complexity in the case must be rationally connected to the delay that ensued. That is to say that, for example, a high number of witnesses in a case will not matter much if the real cause of the delay is 12 months too long to provide basic disclosure. (See R. v. Wookey, 2021 ONCA 68, at para 83)
If a case is found to be “particularly complex”, the Crown must then establish that they developed and followed a concrete plan to minimize the delay occasioned by the complexity in the case. This is a very important requirement. It is more onerous on the Crown than simply proving due attention to the case as it progressed. It requires foresight and active attempts to mitigate delay as soon as it becomes apparent that the case is complex and the presumptive ceiling cannot be met. And whatever complexity the Crown wants to claim will often be apparent from the very outset.
It is the Crown’s onus to establish this exception as well.
“Under-Ceiling” Delay
Can a case be thrown out due to delay even if the case takes less than 18 months (at the Ontario Court of Justice) or 30 months (at the Superior Court of Justice) to complete? The short answer is yes.
It is the defence burden to prove that a case is unreasonable even if the trial is completed under the presumptive Jordan ceiling.
In brief, the defence must satisfy the court of two things: 1) the defence took sustained and meaningful steps to expedite the matter; 2) the case, in all the circumstances, took markedly longer to complete than it should have. The Court will consider factors such as the complexity of the case, whether the Crown took reasonable steps to expedite the proceedings, and local considerations.
As the Supreme Court of Canada says in Jordan, the celling is not meant to be aspirational … it is meant to be just that: a ceiling.
The law surrounding Section 11(b) is more complex than the simple primer set out above. It is not true that any trial over the ceiling will be stayed and any trial under the ceiling will not. An experienced criminal defence lawyer can help you achieve the best outcome available. 11(b) Applications have only one remedy, but it is a big one. If successful, it will be the only Application that matters for a person defending a criminal charge.