Written by Ranjan K. Agarwal, Brad Gilmour, Jessica E. Boily
It's tough for any of us to think of a high profile criminal or regulatory case that could be described as "speedy". The whole country followed the murder trial of Mark Smich and Delen Millard, who were recently convicted of the first degree murder of Tim Bosma”more than three years after they were charged in May 2013. The much talked about proceedings against SNC-Lavalin under the Corruption of Foreign Public Officials Act? With charges laid in February 2015, SNC-Lavalin and one former senior executive are scheduled for a preliminary hearing in September 2018. Despite these long delays, individuals or corporations charged with criminal or regulatory offences have always had a constitutional right to "tried within a reasonable time"”the right to a speedy trial.
Last Friday, the Supreme Court of Canada took the right to a speedy trial and turned it into what now appears to be a right to a trial in 18 or 30 months, depending whether the case is heard in provincial or superior court. Despite a strong dissent by four Supreme Court justices, who denounced attempts to "capture reasonableness with a number" and the setting aside of 30 years of caselaw on reasonable delay, the majority was clear: there is too much delay in the justice system, and we are (finally) going to fix it.
The Supreme Court of Canada's decision in R v Jordan concerns criminal charges for Barrett Jordan's alleged involvement in a dial-a-dope operation but it applies to all criminal and regulatory proceedings”including those under environmental and occupational health and safety legislation.
The Old Framework
Under the old framework, defendants making what is called an 11(b) application (named for the section of the Canadian Charter of Rights and Freedoms that guarantees the right to a speedy trial) had to show unreasonable delay on the basis of four factors: length of the delay, defence waiver, reasons for the delay including institutional reasons, and prejudice to the accused. It was, as the Supreme Court put it, a roll of the dice.
The majority of the Supreme Court in Jordan saw a lot of problems with this approach, not least of all the unpredictable outcome. Calculations of each period of delay were complex. The requirement to demonstrate the defendant had been prejudiced by the delay was complicated”when the delay was long, the court assumed the defendant had been prejudiced, but in other cases, defendants had to prove that, for example, the witness' memories had faded. Finally, the overriding concern: this old framework (despite existing for over 30 years) had done nothing to make the justice system work more efficiently.
A New Framework
The new framework sets a ceiling beyond which delay is assumed to be unreasonable: 18 months for offences tried in provincial court and 30 months for those tried in superior court. Where the total delay (from the time the defendant is charged to the actual or anticipated end of trial) is over 18 or 30 months (less any delay attributable to the defence), the delay is assumed to be unreasonable.
Once that 18- or 30-month ceiling is reached, the Crown can try to show the delay was not unreasonable by proving there were exceptional circumstances. Exceptional circumstances are those that lie outside the Crown's control in the sense they are both reasonably unforeseen or reasonably unavoidable and Crown counsel could have done nothing to predict or remedy the circumstances.
When will exceptional circumstances be found? Where there is an unpredictable event (like a witness changing his testimony ) or a complex case (large numbers of documents or witnesses, significant expert evidence, many charges or charges covering a long period of time, multiple defendants or complex legal issues).
Even where the total delay (less defence delay and any delay the Crown can attribute to exceptional circumstances) is below the 18- or 30-month ceiling, the defence can still establish unreasonable delay by proving that the defence tried to expedite the proceedings and the case took markedly longer than it should have.
Implications for Regulatory Offences
The way the new test is framed puts the onus on the Crown from the very beginning, requiring him or her to look forward to the 18- or 30-month ceiling and plan accordingly. Before Jordan, the only specific guidance given by a court was that eight to ten months institutional delay in provincial court (and 14-18 months in superior court) would be reasonable. While Jordan may have technically lengthened the minimum period, the new framework provides more certainty. We can expect to see many 11(b) applications made exactly 18 or 30 months from the date charges are laid.
For those charged with regulatory offences, it's important to know that the new framework does away with the requirement to demonstrate prejudice. Under the old framework, unless a corporate defendant could prove its "fair trial interests" were prejudiced, it was virtually impossible to succeed on an 11(b) application. The delay had to affect the memories or availability of witnesses, or have caused lost or degraded evidence. Now, corporate defendants should find that 11(b) applications are more likely to succeed, even where the defence cannot prove that its fair trial interests have been prejudiced.
However, in many regulatory offences, we can expect the Crown will demonstrate exceptional circumstances, particularly where there are multiple defendants, multiple offences, expert witnesses, and a large volume of disclosure. Going back to the SNC-Lavalin example, it seems likely that, even in the face of this decision, the case will be lengthy simply given the complexity. Given the Supreme Court's direction that trial judges should consider whether the Crown planned and attempted to mitigate the delay inherent in complex prosecutions, it will be interesting to see if how prosecutors deal with complex prosecutions will change.
Will the Crown attempt to characterize lengthy resolution or settlement discussions, which are typical in regulatory proceedings, as exceptional circumstances? Or will time spent considering a prosecutor's offer be attributed to defence delay? The majority's only comment on the subject was that legitimate defence actions do not fall into defence delay, including preparation time, and requests and applications that are not frivolous.
For those cases currently making their way through the justice system, the majority has stated that the new framework should be applied with flexibility even where the ceiling time frames are exceeded. The onus will be on the Crown to satisfy the court the parties reasonably relied on the previous law.
Whether this new framework will be the solution to delivering "quality justice in a reasonably efficient and timely manner" will depend largely on how trial judges in lower courts apply it. If trial judges find "exceptional circumstances" in many unexceptional cases, we aren't likely to see the improved justice system the majority of Supreme Court seems to be envisioning with its directions to courts to improve scheduling practices and with its directions to legislatures and Parliament to take a fresh look at rules, procedures and other areas of criminal law.