Supreme Court sets ceilings on trial delay

By Justin Ling Web Only

Supreme Court sets ceilings on trial delay


Out with the old Morin framework, in with the new.

The Supreme Court ruled on Friday that the framework, which was intended to guarantee accused the right to a speedy trial under s. 11 of the Canadian Charter, is, among other things, “too unpredictable, too confusing, and too complex.”

In a system plagued by delay, the top court’s ruling could have huge impacts by setting presumptive delay ceilings in criminal trials.

The new framework comes from a pair of decisions passed down by the top court, which stayed proceedings against one man and threw out a conviction for a second.

“[The Morin framework] has itself become a burden on already over-burdened trial courts. From a practical perspective, the Morin framework’s after-the-fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems,” the majority writes in R. v. Jordan.

The Morin framework compels judges to employ discretion in determine what constitutes an unreasonable delay in criminal proceedings, balancing an array of factors, namely the length of the delay, the reasons for it, whether the accused has waived his or her right to complain, and any and prejudice to the accused.

No longer. The majority court is proposing an entirely new process.

“At the heart of this 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,” they write.

And, much to the chagrin of the minority court, they give hard numbers.

“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). Delay attributable to or waived by the defence does not count towards the presumptive ceiling,” they write.

“Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have.”

The ruling is nothing short of a seismic shift for the courts that may well throw a litany of cases into disarray. That, it seems, was precisely the intention.

“All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice system in recent years,” the majority writes. “Broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.”

But while it may sound like a monumental win for Canadians’ right to a speedy trial, the results might not be so cut and dry.

Andrew Furgiuele, a partner with DSF Litigation, says this new test could be a huge problem.

“The majority of the court has unleashed an entirely new test that wasn’t [raised by] the parties,” he told CBA National after the ruling. “This is a wholesale change on an area of jurisprudence where the jurisprudence has been building and settling for, coming up on 30 years.”

That’s not to say that lawyers haven’t been pushing for changes — unreasonable delays have been plaguing the system for years. But a Furgiuele points out, under the Morin guidelines, cases were, more often than not, dealt with in the first year.

“You would see cases in the provincial court that would be stayed at the 14, 15 month mark for unreasonable delay,” he says.

“This 18-month ceiling is going to, by itself excuse, a lot more cases that should’ve been stayed by delay.”

And while putting the burden on the Crown after that 18-month mark may sound like a welcome change — by shifting the onus away from the defence counsel — it means that, prior to that point, the burden actually increases on the defence.

“The burden is on the defense to show two things: They are actually tried to expedite the proceedings...and also to show that the case took longer than it should have,” he says.

That is a heavier test than laid out in Morin, he says.

The pair of decisions exposed some interesting divides in the court. In the first case, R. v. Jordan, Justices Moldaver, Brown, Karakatsanis signed on to the majority decision, with Abella and Côté concurring.

Cromwell wrote the opinion for the minority court — Wagner, Gascon and Chief Justice McLachlin — concurring with the majority that the charges should be stayed — but dissented in their reasons.

“Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice,” Cromwell writes for the minority.

In the second case, the divisions are similar, but for one exception. The Chief Justice concluded that the Court of Appeal had applied the original Morin framework correctly all along, and therefore agreed that the conviction should’ve been stayed.

Furgiuele agrees with the Chief Justice: “As I read it right now, I’m not convinced by the majority why this new test is needed for extreme cases, while the result in the case of Jordan would’ve been the exact same under Morin.”

Cromwell didn’t suggest to leave Morin as is. Instead, he and the minority proposed a revision.

“Under this revised Morin framework, any delay in excess of the reasonable time requirements and any actual prejudice arising from the overall delay must be evaluated in light of societal interests: on one hand, fair treatment and prompt trial of accused persons and, on the other, determination of cases on their merits. If there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an acceptable basis upon which exceeding the inherent and institutional requirements of a case can be justified,” Cromwell wrote.

“I think what the minority does is reframe the test to make it a little easier to deal with, but keeps the guts of the test,” Furgiuele says.

Ultimately, he says this new Jordan test is going to be a problem, but that doesn’t mean it isn’t manageable. The jurisprudence will build, the courts will manage the new caseload, move around their resources, and everybody will work to give this new hypothetical system “meat.”

Ottawa can also act. “Parliament can always jump in. Always. They can legislate what they believe is a reasonable amount of time, and some would argue that’s something that parliament should do,” he says. “That would displace what the court did today.”

But at the heart of this problem, as with most problems, is money.

“Without more funding for the court system, which this really comes down to, one wonders how much is really going to change.”

Justin Ling is a regular contributor based in Toronto.

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