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.
ARGUMENTS 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)."
SUMMARY 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:
• There is a ceiling beyond which delay becomes presumptively unreasonable. 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). Defence delay does not count towards the presumptive ceiling.
• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crowns control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the cases complexity, the delay is reasonable.
• 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.
