R. v. Jordan (B.R.) et al., (2016) 484 N.R. 202 (SCC)

JudgeMcLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
CourtSupreme Court (Canada)
Case DateJuly 08, 2016
JurisdictionCanada (Federal)
Citations(2016), 484 N.R. 202 (SCC);2016 SCC 27

R. v. Jordan (B.R.) (2016), 484 N.R. 202 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2016] N.R. TBEd. JL.006

Barrett Richard Jordan (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Alberta, British Columbia Civil Liberties Association and Criminal Lawyers' Association (Ontario) (interveners)

(36068; 2016 SCC 27; 2016 CSC 27)

Indexed As: R. v. Jordan (B.R.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

July 8, 2016.

Summary:

An investigation of a dial-a-dope operation selling cocaine and heroin led to the accused and others being charged with multiple drug offences in December 2008. In September 2012, the accused applied for a stay of proceedings under s. 24(1) of the Charter, alleging that the 49.5 month delay between the charge and his subsequent trial completion violated his s. 11(b) right to be tried within a reasonable time.

The British Columbia Supreme Court, in a judgment reported at [2012] B.C.T.C. Uned. 1735, dismissed the application, due primarily to a finding that the accused did not suffer significant prejudice. The accused appealed.

The British Columbia Court of Appeal, in a judgment reported at (2014), 357 B.C.A.C. 137; 611 W.A.C. 137, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, applying a reformulated R. v. Morin test, allowed the appeal, set aside the convictions and entered a stay of proceedings.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - [See second Civil Rights - Topic 3270 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - An investigation of a dial-a-dope operation selling cocaine and heroin led to the accused and others being charged with multiple drug offences in December 2008 - In September 2012, the accused applied for a stay of proceedings under s. 24(1) of the Charter, alleging that the delay violated his s. 11(b) right to be tried within a reasonable time - The delay from the charge being laid to the end of his trial in February 2013 was 49.5 months - The trial judge (affirmed on appeal) held that the accused's s. 11(b) rights were not infringed, primarily because the accused suffered no significant prejudice - The accused was convicted - The Supreme Court of Canada, applying a reformulated R. v. Morin test, allowed the appeal, set aside the convictions and entered a stay of proceedings - The accused waived four months of the delay and a further 1.5 months' delay was caused solely by the action or inaction of the accused - The remaining delay (44 months) vastly exceeded the presumptive ceiling of 30 months - The Crown failed to discharge its burden of demonstrating that such delay was reasonable in light of exceptional circumstances - Although the amount of evidence was substantial, the case was at most modestly complex - The court stated that "a total delay of 44 months (excluding defence delay), of which the vast majority was either Crown or institutional delay, in an ordinary dial-a-dope trafficking prosecution is simply unreasonable regardless of the framework under which the Crown was operating. Therefore, it cannot be said that the Crown's reliance of the previous state of the law was reasonable." - See paragraphs 119 to 133.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada set out a new framework for determining whether an accused's s. 11(b) Charter right to be tried within a reasonable time had been infringed - The court stated that the current framework in R. v. Morin (SCC 1992) "has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. ... First, its application is highly unpredictable. It has been interpreted so as to permit endless flexibility, making it difficult to determine whether a breach has occurred. The absence of a consistent standard has turned s. 11(b) into something of a dice roll, and has led to the proliferation of lengthy and often complex s. 11(b) applications, thereby further burdening the system. Second, ..., the treatment of prejudice has become one of the most fraught areas in the s. 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. ... courts have struggled to distinguish between 'actual' and 'inferred' prejudice. ... Long delays are considered 'reasonable' if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused's and the public's interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endure. ... Third, the Morin framework requires a retrospective inquiry, since the analysis of delay arises only after the delay has been incurred. Courts and parties are operating within a framework that is designed not to prevent delay, but only to redress (or not redress) it. As a consequence, they are not motivated to manage 'each case in advance to achieve future compliance with consistent standards' ... Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge's existence. ... In sum, from a doctrinal perspective, the s. 11(b) framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over-burdened trial courts." - See paragraphs 32 to 38.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada set out a new framework for determining whether an accused's s. 11(b) Charter right to be tried within a reasonable time had been infringed - The court stated that "At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). 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. 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 delays beneath the ceiling to be rare, and limited to clear cases. ... While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, ..., compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time." - See paragraphs 46 to 48, 51.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada held that the presumptive ceiling for a trial within a reasonable time (Charter, s. 11(b)) was 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) - The court set out the considerations guiding the new framework: "First, it takes as a starting point the Morin guidelines. ... 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 . ... Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter -protected liberty, security of the person, and fair trial interests. ... This is not, we stress, a rebuttable presumption once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one. Forth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice." - See paragraphs 52 to 55.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada held that the presumptive ceiling for a trial within a reasonable time (Charter, s. 11(b)) was 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) - The Crown had the onus of rebutting the presumption of unreasonable delay when the presumption ceilings were exceeded - The court stated that "Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. ... [The Crown] must also show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. ... The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. ... any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted ... To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. ... an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case's complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity. Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Court's control and ability to remedy may furnish a sufficient excuse for the prolonged delay." - See paragraphs 69 to 81.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Supreme Court of Canada held that the presumptive ceiling for a trial within a reasonable time (Charter, s. 11(b)) was 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) - The accused bore the onus of establishing unreasonable delay where the delay did not exceed the limits - The court stated that "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. We expect stays beneath the ceiling to be granted only in clear cases. ... the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. ... the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form. To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. ... Where the Crown has done its part to ensure that the matter proceeds expeditiously - including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses - it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. ... Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. ... the determination is a question of fact falling well within the expertise of the trial judge." - See paragraphs 82 to 85, 90 to 91.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See fourth Civil Rights - Topic 3265 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - In determining whether an accused's s. 11(b) Charter right to be tried within a reasonable time was infringed by delay, the Supreme Court of Canada discussed the accounting for defence delay - The court stated that "delay attributable to the defence must be subtracted. ... Defence delay has two components. The first is delay waived by the defence. ... Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. ... The second component of defence delay is delay caused solely by the conduct of the defence. ... Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. ... the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. ... However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. ... To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. ... defence application and requests that are not frivolous will also generally not count against the defence. ... To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay compromises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay." - See paragraphs 60 to 66.

Courts - Topic 11

Stare decisis - Authority of judicial decisions - General principles - Application of judgments - Prospective or retrospective - The Supreme Court of Canada re-formulated the R. v. Morin test (SCC 1992) to determine whether an accused's s. 11(b) Charter right to be tried within a reasonable time was infringed - At issue was whether the re-formulated framework applied retrospectively to cases already in the court system - The court stated that "A judicial change in the law is presumed to operate retroactively and apply to past conduct. ... Slightly more relaxed rules apply to judicial changes to the interpretation of constitutional provisions ... Transition periods, suspended declarations of invalidity, and purely prospective remedies are part of the discretionary remedial framework of our constitutional law ... The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when 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. ... The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria - defence initiative and whether the time the case has taken markedly exceeds what was reasonably required - must also be applied contextually, sensitive to the parties' reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay proceeding this decision. ... Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time. ... For cases already in the system, the presumptive ceiling still applies; however, 'the behaviour of the accused and the authorities' - which is an important consideration in the new framework - 'must be evaluated in its proper context' ... The reasonableness of a period of time to prosecute a case takes it colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance." - See paragraphs 92 to 103.

Courts - Topic 79

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Supreme Court of Canada - The Supreme Court of Canada set out a new framework, replacing the R. v. Morin framework (SCC 1992), for determining whether an accused's s. 11(b) Charter right to be tried within a reasonable time had been infringed - The court stated that "While departing from a precedent of this Court 'is a step not to be lightly undertaken' ... 'there are compelling reasons to do so'" - The court noted that the Morin framework, from a doctrinal perspective, was "too unpredictable, too confusing and too complex" - See paragraphs 38, 45.

Counsel:

Eric V. Gottardi and Tony C. Paisana, for the appellant;

Croft Michaelson, Q.C., and Peter R. LaPrairie, for the respondent;

Jolaine Antonio, for the intervener, the Attorney General of Alberta;

Tim A. Dickson and Martin Twigg, for the intervener, the British Columbia Civil Liberties Association;

Frank Addario  and  Erin  Dann,  for the inter-

vener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Peck and Company, Vancouver, British Columbia, for the appellant;

Public Prosecution Service of Canada, Vancouver, British Columbia, for the respondent;

Attorney General of Alberta, Calgary, Alberta, for the intervener, the Attorney General of Alberta;

Farris, Vaughan, Wills & Murphy, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Addario Law Group, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on October 7, 2015, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On July 8, 2016, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Moldaver, Karakatsanis and Brown, JJ. (Abella and Côté, JJ., concurring) - see paragraphs 1 to 141;

Cromwell, J. (McLachlin, C.J.C., Wagner and Gascon, JJ., concurring) - see paragraphs 142 to 303.

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