The New Framework to be Applied where a Breach of s. 11(b) is Alleged
On July 8,
2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied
in s. 11(b) Charter applications. At the
heart of the new framework is a presumptive ceiling beyond which delay —from
the charge to the actual or anticipated end of trial — is presumed to be unreasonable,
unless exceptional circumstances justify it. The presumptive ceiling is 18
months for cases tried in the provincial court, and 30 months for cases in the
superior court (or cases tried in the provincial court after a preliminary
inquiry).
The New Framework Summarized
The
approach required by the new framework was recently summarized in R. v. Coulter,
2016
ONCA 704 (CanLII), [2016] O.J. No. 5005 (C.A.) at paras. 34-40:
·
Calculate the total delay, which is the
period from the charge to the actual or anticipated end of trial (Jordan, at
para. 47).
·
Subtract defence delay from the total
delay, which results in the “Net Delay” (Jordan, at para. 66).
·
Compare the Net Delay to the presumptive
ceiling (Jordan, at para. 66).
·
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).
·
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).
·
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).
·
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).
Comments
Post a Comment