The Test
In R v Jordan, 2016 SCC 27, the Supreme Court of Canada created a new s.11(b) framework, which is based upon a presumptive ceiling that defines unreasonable delay. The presumptive ceiling is set at 30 months for cases going to trial in the superior court; beyond this ceiling, delay becomes “presumptively unreasonable" (para 46).
Defence delay does not count towards the presumptive ceiling. Defence delay has two components: waiver and delay caused solely by the conduct of the defence. Waiver by an accused must be clear and unequivocal, and made with full knowledge of the rights being waived and the effect of the waiver on those rights. The court cannot accept the failure to assert the right, silence, or lack of objection as constituting a valid waiver. Importantly, waiver also implies choice. As the Supreme Court noted in R v Askov, [1990] 2 SCR 1199, “unless some real option is available, there can be no choice exercised and as a result waiver is impossible” (para 106).
The second type of defence delay occurs when defence conduct directly causes delay, or when both the Crown and court are ready to proceed but the defence is not. However, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.” Defence applications and requests that are not frivolous will typically not contribute to defence delay: Jordan, paras 60-66.
Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption that the delay is unreasonable. In order to do so, the Crown must establish that there were exceptional circumstances outside of their control, and that these circumstances were both (1) reasonably unforeseeable or reasonably unavoidable and (2) the Crown could not reasonably remedy the delays once they occurred. In other words, the Crown must prove that it took “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling" (paras 69-70).
An exceptional circumstance typically falls into one of two categories: discrete events and particularly complex cases. The former concerns events such as medical or family emergencies and unforeseen events at trial (e.g., a recanting witness) that cause delay. Such delay should be subtracted from the total delay used in determining whether the presumptive ceiling has been breached (paras 71-75).
Particularly complex cases are those that require an “inordinate amount of trial or preparation time such that delay is justified.” This may be because of the nature of the evidence (e.g., voluminous disclosure, a large number of witnesses, complex and lengthy expert evidence, charges covering a long period of time etc.) or the nature of the issues (e.g., a large number of charges and pre-trial applications, novel or complicated legal issues, and proceeding jointly against multiple co-accused – where it is in the interests of justice to do so.). The 11(b) application will fail if the court finds that the case was particularly complex such that the delay is justified (77-80)
In addition, under Jordan, “prejudice will no longer play an explicit role in the s. 11(b) analysis,” Once the ceiling is breached, the accused person is presumed to have suffered prejudice to his Charter-protected liberty, security of the person, and fair trial interests (54).
The Jordan framework applies to all cases currently in the system. However, for cases that exceed the presumptive ceiling, a “transitional exceptional circumstance” applies if “the Crown satisfies the court that the time the case has taken is justified based on the parties reasonable reliance on the law as it previously existed.” This necessitates a contextual assessment of the delay under the previous framework, including the allocation of delay under the Morin categories, the prejudice to the accused, the seriousness of the offence, and the institutional delay previously acceptable in the region in issue – as these considerations would have informed the parties’ behaviour prior to Jordan: Jordan at paras 95-97; R v Manasseri, 2016 ONCA 703 at para 321; R v McManus, 2017 ONCA 188
Examples of recent 11(b) cases:
R v Williamson, 2016 SCC 28
R v Cody, 2017 SCC 31
R v Vassell, 2016 SCC 26
R v Mallozzi, 2017 ONCA 644
R v Saikaley, 2017 ONCA 374
Co-accused delay: see R v Gopie, 2017 ONCA 728 at paras 123-142 and 171; see also R v Manasseri, 2016 ONCA 703