There has been a lot of dissatisfaction lately over the new 11(b) guidelines set out by the Supreme Court in R. v. Jordan with reports of criminals walking free and the justice system grinding to a halt. While it is unclear whether Jordan will realize its intended effect, it is most definitely a reboot of one of the most broken aspects of the judicial system.
Section 11(b) of the Charter deals with the right of legally innocent individuals to have their trials within a reasonable amount of time. Avoiding delay ensures that evidence (including witnesses’ memories) is fresh and that an accused’s right to make full answer and defence is not prejudiced. Where an accused experiences prejudice due to unreasonable delay, a stay of proceedings may be granted.
It is important to emphasize the term “legally innocent” because there is a distinction between legal and factual guilt. Sometimes a person cannot be convicted under the law despite factual guilt; other times a person may be convicted under the law despite factual innocence.
In dealing with the liberty of an individual we cannot assume guilt; unless proven beyond a reasonable doubt, an accused is legally innocent. This is where the main disconnect exists between the criminal justice system and the public; what the justice system actually is and what people think it ought to be, are different.
One of the safeguards in place to protect an accused’s rights is the right to a trial within a reasonable time. For years, unreasonable delay has been considered prejudicial resulting in stays in proceedings ranging from the least to the most serious matters (including murder). This is not news.
In R. v. Morin  1 S.C.R. 771, the Supreme Court listed the factors the courts were to consider, specifically, the length of the delay; the waiver of time periods; the reasons for delay (including inherent time requirements of the case; actions of the accused; actions of the Crown; limits on institutional resources; other reasons for delay); and the prejudice to the accused.
After years of growing pains, the jurisprudence interpreting Morin began to settle, but one factor was consistently debated: the understanding of prejudice. What kind of prejudice was required and to what extent? How does the nature of the offence raise or lower the threshold an accused must meet in demonstrating prejudice? And so on.
Though 11(b) is a right of all accused, under Morin it was often a hollow promise for individuals charged with more serious or complicated matters.
In an effort to address these issues, the SCC instituted new guidelines in Jordan based on the premise that unreasonable delay is presumptively prejudicial. Jordan states that delay is considered presumptively unreasonable after 18 months in the provincial courts and 30 months in the superior courts.
Assuming that all parties act diligently (which they are required to do), 18 months and 30 months are significant amounts of time and most cases will not reach this point.
However, previously matters were being stayed between the 12-15 month period, meaning courts had found (on a case-by-case basis) that significant prejudice resulted from shorter delays than the SCC’s new framework.
Further, despite the new guidelines, a number of the Morin factors still apply. For instance, delay that is attributable to, or waived by the accused does not count toward the presumptive ceiling. Further, the Crown may be able to demonstrate exceptional circumstances that would justify going above the presumptive ceiling.
We have also seen a significant shift in resources to make sure that more serious and complex matters are dealt with below the presumptive ceilings. However, resources are finite meaning they must be taken from somewhere. The result is that accused individuals with less complex matters will likely see more delay than they otherwise would have.
Below the presumptive ceiling, an accused can still invoke s. 11(b), but will be required to demonstrate that he/she took all reasonable steps to advance the proceedings and that the case took markedly longer than it reasonably should have. However, it is unclear how the courts will interpret “all reasonable steps” and “markedly longer than it reasonably should have.”
Finally, to prevent a flood of stays of proceedings, the SCC created a transition period where parties who had justifiably relied on Morin could continue to rely on it.
What we are currently experiencing are new growing pains under the Jordan guidelines. It will likely take a number of years before the dust settles, but we are witnessing the judicial system in action, triaging matters for the public interest, legally innocent accused having their matters stayed for unreasonable delay, resources shifting to ensure that serious and complex matters are dealt with, etc.
In the not too distant future, we may come to a point where stays for delay become less common than under the old guidelines.
Robert Karrass is a Toronto based lawyer who specializes in criminal law, professional discipline law and appeals in all levels of court. Reach him at firstname.lastname@example.org.