“Impact Of New Supreme Court Ruling Regarding Trial Limits?”

Hey all,

Just curious if anyone has any thoughts on today's Supreme Court ruling "clarifying" limitations for criminal and provincial trial maximum timelines. This appears to supersede R v. Askov and R v. Morin, based on a light read of the press coverage. Given my lack of legal background, was curious if anyone could speak to how this impacts the reasonableness test of time to first appearance/trial, which has been somewhat variable since Morin, AFAIK.

Looks like this is time to trial COMPLETION, and all based on crown delays, but I am not claiming to be expert on reading the actual published opinion/dissent. No idea if this impacts initial time for scheduling, courts that schedule first appearance/reschedule trial, etc. Appears limit for "provincial" offences is now 18 months to trial completion.

Not sure how Morin has been applied of late either, haven't really been paying attention to charter defence successes for last few years.

Not sure if this is beneficial/detrimental from a defence perspective. Thoughts/interpretations welcome!

As I understand it, after a set amount time it is presumed by the court that the length of time on its own infringes on your right to a fair trial. It would be up to a prosecutor to prove otherwise. I didn't take it as taking away the current system where the accused can argue and must prove prejudice exists in the trial taking more than 1 year to dispose of for traffic tickets.

Here is the case that explains the new rulling:

R. v. Jordan 2016 SCC 27

And here is the following case that also applied the new ruling:

R. v. Williamson - 2016 SCC 28

So it is talking about a "presumptive ceiling" of 18 months but I do not believe this affects the Provincial Offences of where it is now (I think 8 to 10 months). I have not fully read both cases yet, so this is just my initial impression.

It says:

" A new framework is therefore required for applying s. 11 (b). This framework is intended to focus the s. 11 (b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11 (b)s important objectives."

Note CRIMINAL justice system. Nothing to see here, move along.

argyll wrote:" A new framework is therefore required for applying s. 11 (b). This framework is intended to focus the s. 11 (b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11 (b)s important objectives."

Note CRIMINAL justice system. Nothing to see here, move along.

That's a good catch. Thanks all respondents for their feedback. Love this forum

Does anybody know where the 10 to 12 months thing comes from? Is there it just based on Askov and Morin cases or are there some newer cases (before Jordan) that set that limitation?

I have decided to share my thoughs on the presumptive ceiling of 18 months for 11b charter challenges from R v Jordan 2016 SCC 27, [2016] 1 SCR 631

You can find it here if you want to read it yourself: https://scc-csc.lexum.com/scc-csc/scc-c ... 7/index.do

A couple of notes about the case...

- All the unnumbered paragraphs at the beginning are a summary of the entire case (everything before the section titled "CASES CITED"). If you read nothing else, make sure you read all these paragrpahs.

- The numbered paragraphs from [1] to [141] are the important ones as they represent the Judges majority decision that overrules the old case law. This offers more details than the summary paragraphs and is worth the read if you have the time... lots to learn!

- The numbered paragraphs from [142] to [303] represent the dissenting Judges opinion, but are not important. They are just fluff and you do not need to read these.

The first argument I would bring up is that:

(1) this case is referring to Criminal matters and not Provincial Offences matters. In Ontario many criminal matters are dealt with at the Provincial Court level (Ontario Court of Justuce), which is the same court that hears all the Provincial Offence matters as well. Over and over again this case refers to Criminal matters and never mentions Provincial Offences matters. Paragraph [53] and [78] in particlular, but also see paragraphs [1], [2], [3], [5], [108], [115], [135]

In the alternative, if number (1) is not accepted, then the next arguments I would bring up are:

(2) The presumptive ceiling of 18 months is simply a number where the delay is automatically considered unreasonable, without having to prove it is unreasonable:

"[47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow."

(3) However if the time is LESS than 18 months, it could still be considered unreasonable, except you now have to prove it:

"[48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases."

"[82] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11 (b) application must fail."

(4) The presumtive ceiling was designed to deal with the increased complexity of criminal cases, and since Provincial Offences considered very simple cases, the time that is unreasonable should be much less than 18 months:

"[53] Second, the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case. These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin. In this way, the ceiling takes into account the significant role that process now plays in our criminal justice system."

"[87] Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings."

"[88] The reasonable time requirements of the case will increase proportionally to a cases complexity. As Sopinka J. wrote in Morin: "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).""

"[91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a birds-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92)."

Paragraph [105] sums it up nicely, and basically says that YES you can still succeed on an 11b for Provincial Offences between 10 to 18 months, but you have to work harder to prove it!

[105 ]Concluding Comments on the New Framework - The new framework for s. 11 (b) can be summarized as follows:

• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

I agree entirely with everything you've said, as do commentators whose opinions I've read. The problem that everyone seems to acknowledge, however, is that the Jordan decision is silent when it comes to matters other than criminal matters. Legal experts seem to agree that it may take another SCC ruling to create a ceiling for non-criminal matters (e.g, provincial offences or so-called regulatory offences). The majority of those whose opinions I've read predict that JPs will not want to create more chaos by applying the old Askov and Morin rules on the basis that they interpret the Jordan rules not to apply. Some may and some may not. Either way, it seems POA courts are working to set trial dates more quickly.

Was the prior number of 8-10 to months a presumptive ceiling as well, where it was automatically considered unreasonable if it went over that time frame? So would JP's just sort of say "yes its been more than 10 months, so is unreasonable". Or did you have to prove it was unreasonable?

With the new 18 month ceiling, you can still argue that the delay was unreasonable at after 8-10 months, but the onus is on you to prove it. I guess will need to find some caselaw and see how these issues were argued in the past. In Barrie/Orillia/Penetang, you will usually get a trial date within 4 to 6 months so it could be argued that if it exceeds the 10 months that it was unreasonable based on what normally occurs.

Its always nice to discuss such current legal issues. But, unfortunately, several court cases have now decided that the Jordan parameters also apply to POA (e.g. HTA) cases and the 18 month time-limit applies. I personally suspect that trend will continue and the OCA or SCC will affirm that.

However, kudos go out to you guys for trying to argue that Jordan shouldn't apply to provincial offence matters. Its an uphill battle but someone's gotta try. Maybe the SCC or OCA will agree--anything is possible.

The only cases I have read that say 18 months apply to POA are ONCJ from Justice of the Peace which means they are not binding yet.

If nobody argues then it will definitely go that way!

I have not personally had a case go over 10 months, so have never had to argue an 11b, but hopefully there is somebody out there that can use this to take it on.

Although those OCJ cases may not be binding, they could be helpful for strengthening arguments for a possible s. 11(b) Charter argument. For example, in R. v. Ramsay, a lot of the arguments brought up here were analyzed in that case. So it's helpful to look at the counterarguments, and try to come up with rebuttals to be even more prepared for an 11b application.

I have also noticed that most Provincial Offences courts still try to bring cases to trial within 8-10 months or sooner anyways, even in urban centres like the Greater Toronto Area. They've been trying to revamp the entire POA system throughout Ontario, such as through the removal of parking tickets to free up court time and having it dealt with through administrative monetary penalties, or testing the system with or without early resolution to see which ends up getting the ticket dealt with sooner.

jsherk wrote:The only cases I have read that say 18 months apply to POA are ONCJ from Justice of the Peace which means they are not binding yet.

If nobody argues then it will definitely go that way!

I have not personally had a case go over 10 months, so have never had to argue an 11b, but hopefully there is somebody out there that can use this to take it on.

My case for a fail to stop at a red is almost 12 months and not even a notice of trial yet. Want to take it on if the notice arrives?