Keeping Time, Time, Time

The Supreme Court changes the meaning of the right to be tried within a reasonable time

A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any person charged with an offence.” In R. v. Jordan, 2016 SCC 27, a divided Court overturned precedent and introduced presumptive caps on the amount of time that can elapse before a trial no longer takes place “within a reasonable time.” This decision raises significant questions about the judicial role, especially in the face of inaction by other branches of government.

Mr. Jordan, along with a number of others, had been charged with multiple drug offences. His trial concluded a little over four years later, two months of which he spent in prison, and the rest under restrictive bail conditions. The trial judge found that while Mr. Jordan was responsible for four months of that delay, the prosecution was responsible for two more, while the rest ― more than two and a half years ― “was attributable to institutional delay” [15]. However neither the trial judge nor the Court of Appeal accepted Mr. Jordan’s argument that the delay was an infringement of his rights under par. 11(b) of the Charter.  This was notably so because Mr. Jordan was facing other charges and serving a separate sentence, with conditions more or less equivalent to those of his bail, while waiting for his trial, meaning that his liberty would have been restricted even without the delay in this case.

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The majority opinion, co-written by Justices Moldaver, Karakatsanis, and Brown, with whom Justices Abella and Côté concur, treats Mr. Jordan’s case as symptomatic of “a culture of delay and complacency towards it” [29]. The existing rules for the application of par. 11(b), which involved assessing the reasonableness of the delay in a given case in light of its length, causes, and impact on the accused are too complicated and vague, causing “its application [to be] highly unpredictable” [32] and subjective. A focus on the prejudice the delay causes to the accused misses some of the less tangible harms delay produces, not least those to the administration of justice as a whole, and devalues the right to a speedy trial. Finally, the existing rules are “designed not to prevent delay, but only to redress (or not redress) it” [35]. The “culture of delay” must change,

[a]nd, along with other participants in the justice system, this Court has a role to play in changing [it] and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. [45]

The way in which the majority wants to play that role is by changing the applicable rules. As mentioned at the outset, the majority opinion introduces

ceiling[s] beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry), [46]

excluding any delay for caused or waived by the defence. The Crown can still show that exceptional circumstances outside of its control have arisen and that they explain ― and excuse ― a case taking longer than these timeframes, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but to do so they will need to demonstrate not only that the delay is “markedly” greater than reasonable, but also that they diligently sought to have the case heard sooner. (This test is reminiscent of that which Justice Moldaver applied in the Court’s recent decision in R. v. Vassel, 2016 SCC 26.)

The majority justified its decision by asserting that

[a] presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. [50]

In the majority’s view, its approach is simpler than the existing rules, and eliminates the undue focus on prejudice to the accused. The majority acknowledges that even the ceilings it imposes are “a long time to wait for justice,” but insists that they “reflect[] the realities we currently face,” [57] ― as reflected, it seems, in “a qualitative review of nearly every reported s. 11(b) appellate decision from the past 10 years, and many decisions from trial courts” [106] ― while cautioning that the Court “may have to revisit these numbers and the considerations that inform them in the future.” [57] Ultimately, the majority hopes that its approach “will help facilitate a much-needed shift in culture,” [112] including

by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [117]

In its conclusion, the majority adds that “[g]overnment will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.” [140]

Applying its approach (including a transitional framework for cases already in the system prior to its ruling) to the facts of Mr. Jordan’s case, the majority finds that the delays that afflicted it were unreasonable. In the process, it castigates the Crown for not having had a plan for bringing the matter to trial expeditiously, and for doing “too little, too late” when it became aware of the problem.

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The Chief Justice and Justices Cromwell, Wagner, and Gascon do not disagree with this conclusion. They too are of the view that the delay in this case was unreasonable. However, Justice Cromwell’s concurring opinion is sharply critical of the majority’s approach to par. 11(b), which it calls “both unwarranted and unwise.” [254] While it accepts that some revisions to the current framework are in order, it rejects the imposition of fixed ceilings on acceptable delays.

Drew Yewchuk summarizes the concurrence’s approach and exposes some difficulties with it in a post at ABlawg. Here I will briefly sum up Justice Cromwell’s critique of the majority opinion. Justice Cromwell argues that the majority’s approach will not be as simple to apply as the majority hopes, because “[t]he complexity inherent in determining unreasonable delay has been moved into deciding whether to ‘rebut’ the presumption that a delay is unreasonable if it exceeds the ceiling in particular cases.” [254]

As a matter of principle, the reasonableness of pre-trial delay “cannot be captured by a number; the ceilings substitute a right for ‘trial under the ceiling[s]’ … for the constitutional right to be tried within a reasonable time.” [147] Indeed,

The proposed judicially created “ceilings” largely uncouple the right to be tried within a reasonable time from the concept of reasonableness which is the core of the right. The bedrock constitutional requirement of reasonableness in each particular case is replaced with a fixed ceiling and is thus converted into a requirement to comply with a judicially legislated metric. This is inconsistent with the purpose of the right, which after all, is to guarantee trial within a reasonable time. Reducing “reasonableness” to a judicially created ceiling, which applies regardless of context, does not achieve this purpose. [263]

No foreign jurisdiction imposes numerical guidelines for speedy trials either. As for the majority’s approach to cases where trial is completed with the 18- or 30-month limit, it is “a judicially created diminishment of a constitutional right, and one for which there is no justification.” [264]

Each case must be decided separately, based on its own circumstances ― including, to some (limited) extent the prejudice to the accused, as well as society’s interest in the prosecution. The creation of definite ceilings is a legislative task, and it should be accomplished, if at all, by legislation. Besides, there is no evidence to support the majority’s approach, and it was neither put forward by any of the parties nor “the subject of adversarial debate.” [147] Nor was the majority’s assessment of the jurisprudence subject to scrutiny by the parties. The impact of its decision is unknown, but “[f]or the vast majority of cases, the ceilings are so high that they risk being meaningless,” thus “feed[ing] … rather than eliminat[ing]” [276] the culture of delay that the majority is concerned about, while for a small but significant minority, the ceilings risk proving too rigid, leading to stays being entered in the most important prosecutions.  

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There are many questions to be asked about this case. They concern the constitutionality of the majority’s decision, the soundness of its approach as a matter of policy, its choice to implement this approach by judicial fiat, and the process it has followed in doing so. Since this post is already very long, I will only briefly address the first one here, and put off the other three to a separate discussion, which I hope will follow… in a reasonable time.

What I mean by the constitutionality of the majority’s decision is its consistency with the Charter’s text. The concurrence effectively argues that the constitutional text requires treating reasonableness as a standard and prohibits translating it into a bright-line rule. (Notice, though, that Justice Cromwell doesn’t quite put the point in this way: he says that the majority’s approach is inconsistent with “purpose of the right” ― consistently with the Supreme Court’s tendency to treat constitutional text as secondary, at best, to the “purposes” it is deemed to implement.) The majority, it seems to me does not make much of an effort to address this argument.

I am not sure who is right, to be honest. The idea of reasonableness does indeed normally refer to a standard, not a rule. But ― precisely for that reason ― the constitutional text that entrenches this standard calls for judicial elaboration or, as modern originalists would say, construction. In other words, the constitutional text itself does not give answers to the questions that arise in the course of adjudication. It must be supplemented by judicially-developed doctrines. The question is whether the courts can make numerical rules part of their doctrines. (And it really is only part; the majority is probably right to say that the concurrence somewhat overstates the degree to which the test a numerical one.) Or is it simply inconsistent with the meaning “reasonableness”? Again, I am not sure, but I do not think that the matter is as clear as the concurrence suggests. The fact that reasonableness requirements have not been construed in this way so far, in Canada or abroad, is significant, but hardly dispositive. It really is too bad that the majority does not address this issue.

In my view, however, the concurrence is pretty clearly right that the majority’s approach to cases that fall below its ceilings is a departure from constitution text. The text provides a right “to be tried within a reasonable time” ― not a right “to be tried within a time that is not markedly unreasonable provided that one has been diligent.” Presumably the majority introduce these additional requirements in order to incentivize defence counsel to contribute to the cultural change which it seeks. But while understandable, this motivation cannot justify an obvious inconsistency with the constitutional text.

That said, the issues of whether there can and ought to be a “ceiling” above which the burden of proof shifts to the Crown, and just what ought to happen below that ceiling, are distinct. It may be that the majority is right about the first even if it is wrong about the second.

All right. That’s quite unreasonable already ― for now.