Any person charged with an offence has the right…to be tried within a reasonable time.
Section 11(b) of the Canadian Charter of Rights and Freedoms
In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada constructs a new analytical framework for assessing violations of an accused’s right to be tried within a reasonable time. A judge calculates the time period from the charging date to the end of the trial, subtracting any delay attributable to the defence. If the resulting delay is beyond the presumptive time limits for reasonableness (eighteen months for an accused standing trial in a provincial court and thirty months for an accused standing trial in a superior court), the judge will terminate the prosecution unless the Crown can show that the delay is reasonable having regard to “the presence of exceptional circumstances” (Jordan, at para. 68).
As the Court emphasizes in Jordan at para. 81:
...the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. ...(emphasis in original)
The starting point for the analysis of “exceptional circumstances” is the Court’s comments in Jordan at para. 69:
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. …They need not meet a further hurdle of being rare or entirely uncommon. (emphasis deleted)
While noting that there is not a ‘closed list’ of exceptional circumstances (Jordan, at para. 71), the Court in R. v. Cody, 2017 SCC 31, clarifies at para. 46 that:
Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases (Jordan, at para. 71). In addition, transitional considerations may be taken into account as a third form of exceptional circumstances where…the case was already in the system when Jordan was decided (Jordan, at paras. 94-98).
The First Category of Exceptional Circumstances: Deductible Discrete Events
A judge will subtract any delay attributable to reasonably unforeseeable or unavoidable discrete events, to the extent that the Crown or the justice system could not reasonably mitigate the resulting delay (Cody, at para. 48). Taking into account deductions for discrete events, the Crown may be able to bring the net delay back within the presumptive time limits for reasonableness.
Examples of deductible discrete events may include delay occasioned by:
- "Medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge)..." (Jordan, at para. 72);
- The appointment of an accused’s counsel to the bench (Cody, at para. 49);
- The emergence of a reasonably unavoidable and unforeseeable disclosure issue (Cody, at para. 54);
- “Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction…” (Jordan, at para. 72);
- A complainant who unexpectedly recants while testifying, requiring the Crown to change its case (Jordan, at para. 73); and
- A trial that goes longer than reasonably expected (Jordan, at para. 73).
The Supreme Court of Canada is also clear that the Crown and the justice system must take prompt action to address concerns about delay when a reasonably unforeseeable or unavoidable event arises. As the Court in Jordan states at para. 75:
...Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).
The Second Category of Exceptional Circumstances: Particularly Complex Cases
The Court in Cody provides the following guidance as to whether a case is sufficiently complex to qualify as an exceptional circumstance at para. 64:
… Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80)….
The Court in Jordan indicates that the distinctive features of particularly complex cases include:
…voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. (para. 77)
A judge assessing the complexity of a case must also keep in mind the following comments by the Court:
- "...The presumptive ceilings set in Jordan already reflect the “increased complexity of criminal cases since Morin”, including the emergence of “new offences, procedures, obligations on the Crown and police, and legal tests” (Jordan, at paras. 42 and 53)…"(Cody, at para. 63);
- "...While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. ..." (Cody, at para. 65);
- "A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. ..." (Jordan, at para. 78); and
- "...if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance." (Jordan, at para. 78).
The Third Category of Exceptional Circumstances: Temporary Transitional Considerations
If the case was already in the system before the Jordan decision was released on July 8, 2016, the Crown may justify the delay by reference to transitional considerations. As the Court in Cody clarifies, beginning at para. 67:
The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para. 96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.
Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96)…
Apart from the application of the temporary transitional exceptional circumstance that takes into account the law as it existed prior to the release of Jordan, the Crown can no longer rely upon the following factors to salvage a stale prosecution:
- “The seriousness or gravity of the offence…” (Jordan, at para. 81);
- “Chronic institutional delay” (Jordan, at para. 81); and
- The “absence of prejudice” to an accused as a result of the delay (Jordan, at para. 81).