Paragraph 11(b) – Trial within a reasonable time
11. Any person charged with an offence has the right:
- to be tried within a reasonable time;
Other canadian legislation
The right to a fair trial is also protected under paragraph 2(e) of the Canadian Bill of Rights. Section 7 provides some residual protection against state-caused delay in limited circumstances.
International human rights instruments binding on Canada
Similar guarantees can be found in article 14(3)(c) of the International Covenant on Civil and Political Rights.
The primary purpose of paragraph 11(b) is to protect the following rights of individual accused: (a) the right to security of the person; (b) the right to liberty; and (c) the right to a fair trial (R. v. Jordan, 2016 SCC 27, at paragraph 20). The provision also serves secondary societal interests: (a) the interest in protecting the right of an accused person to humane and fair treatment (b) the interest in having laws enforced, including through ensuring that those who break the law are tried in a timely fashion. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial (R. v. Morin,  1 S.C.R. 771, R. v. Askov,  2 S.C.R. 1199). Timely trials are also important to maintaining overall public confidence in the administration of justice (Jordan, supra at paragraph 25; Askov, supra at 1221).
Paragraph 11(b) recognizes the stigmatization, loss of privacy, and stress and anxiety created by the cloud of suspicion that accompanies criminal proceedings (Morin, supra at 778; R. v. Godin,  2 S.C.R. 3, at paragraph 30). It also recognizes that the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh (Morin, supra), and that delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence (Godin, supra at paragraph 30).
1. Charged with an offence
See the discussion under the general section 11 heading.
2. Any person
Corporations as well as individuals benefit from the protection of paragraph 11(b) (R. v. CIP Inc.,  1 S.C.R. 843).
Paragraph 11(b) is concerned with the period between the laying of the charge and the conclusion of the trial (Morin, supra) (see introductory section under section 11 for the meaning of "charged"). Thus, paragraph 11(b) does not apply to pre-charge delay (R. v. Kalanj,  1 S.C.R. 1594) and the time period only begins to run from the moment the accused is charged (Carter v. The Queen,  1 S.C.R. 981). Paragraph 11(b) also does not apply to appellate delay (R. v. Potvin,  2 S.C.R. 880) or to disciplinary-type proceedings concerned with regulating a profession or occupation in the public interest (Peet v. Law Society of Saskatchewan, 2014 SKCA 109). Relief from excessive delay during pre-charge and appeal periods may be available under other Charter provisions, such as section 7 (Kalanj, supra; Potvin, supra). However, there is appellate jurisprudence indicating that, where a charge is laid and withdrawn and a new charge is laid, there are circumstances under which the time period under paragraph 11(b) will begin to run from the date of the initial laying of the charge (R. v. Milani, 2014 ONCA 536, at paragraph 48; R. v. Scott, 2015 SKCA 144).
Paragraph 11(b) protection includes the right to be sentenced within a reasonable time (R. v. MacDougall  3 S.C.R. 45; R. v. Gallant,  3 S.C.R. 80). It is important to note, however, that in setting out the new analytical framework for assessing whether delay is unreasonable, and therefore an infringement of paragraph 11(b), the majority in R. v. Jordan, 2016 SCC 27specifically refrained from commenting about how the presumptive ceiling should apply to paragraph 11(b) applications brought after a conviction is entered (Jordan, supra at paragraph 49, footnote 2; see also R. v. Warring, 2017 ABCA 128, at paragraph 10 for discussion of paragraph 11(b) and sentencing proceedings).
4. Paragraph 11(b) analysis prior to R. v. Jordan
In R. v. Jordan, supra, the Supreme Court of Canada introduced a new analytical framework for determining whether an accused was tried within a reasonable time, as required by paragraph 11(b).
Prior to this judgment, the analysis (outlined most fully in Morin, supra) required a case-by-case approach. Judges were required to assess whether delay had been unreasonable, and therefore a violation of paragraph 11(b), by looking at the length of the delay, less any periods that have been waived by the accused, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that paragraph 11(b) protects (Godin, supra at paragraph 18).
The reasons for the delay were assessed by breaking the delay down into delay attributable to: (i) inherent time requirements of the case; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations of institutional resources (systemic delay); (v) other reasons (Morin, supra). This was not a mathematical application, but a judicial determination. The purpose of the analysis was to provide a framework for the balancing exercise (Morin, supra). According to the Supreme Court,
“[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [paragraph 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” (Morin, supra at 787, cited in Godin, supra at paragraph 18). Different degrees of weight were attached to the delay depending upon to whom or to what it was attributed (R. v. Ghavami, 2010 BCCA 126 at paragraph 52-53).
The majority in Jordan, supra (strongly opposed by the minority) determined that a new framework was necessary after finding that the Morin framework suffered from a number of doctrinal shortcomings that had made it too unpredictable, confusing, and complex for courts to apply (Jordan, supra at paragraphs 32-38). In addition, it failed to address the culture of complacency towards delay that has emerged in the criminal justice system due to a number of factors, including inefficient practices, inadequate institutional resources, and the increased complexity of pre-trial and trial processes since Morin (at paragraph 41).
5. Test for infringement as set out in R. v. Jordan
[Note to the reader: Given the significant departure from the previous paragraph 11(b) jurisprudence, many aspects of the new Jordan framework will continue to develop as courts engage with it, particularly for cases that are subject to the transitional qualifications. This document does not purport to comprehensively address each outstanding issue.]
The new framework for assessing whether delay is unreasonable set out in Jordan, supra established numerical ceilings beyond which delay is presumptively unreasonable: 18 months for cases going to trial in provincial court and 30 months for cases going to trial in superior court or cases going to trial in provincial court after a preliminary inquiry (Jordan, supra at paragraph 49).
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 (Jordan, supra at paragraph 47). To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If the delay cannot be attributed to an exceptional circumstance, it is unreasonable and a stay will follow (Jordan, supra at paragraphs 76, 80).
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 accused to show that the delay is unreasonable. To do so, the accused 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 (Jordan, supra at paragraph 48)
(i) Calculating whether delay falls above or below the presumptive ceiling
The total delay is calculated from the date of the charge to the actual or anticipated end of trial (Jordan, supra at paragraph 60). Once that is determined, delay attributable to the accused is subtracted (Jordan, supra at paragraph 60).
Delay attributable to the accused is either:
Delay that is implicitly or explicitly waived by the accused. For the waiver to be valid, it must be clear and unequivocal, and the accused must have full knowledge of his or her rights and the effect of the waiver on those rights (Jordan, supra at paragraph 61). Pre-Jordan jurisprudence indicates that silence by the accused in response to passing remarks about delay by the Crown should not be taken as a waiver (R. v. Smith,  2 S.C.R. 1120 at 1136; R. v. Williamson (2000), 144 C.C.C. (3d) 540 at paragraph 18 (Ont. C.A.), leave to appeal to S.C.C. refused 147 C.C.C. (3d) vi). However, where the accused agrees to a future trial date at a pre-trial conference and does not raise the issue of a s.11(b) challenge with the judge, this will constitute a waiver (R. v. Sapara,  227 A.R. 357 (ABCA), leave to appeal to S.C.C. refused 293 A.R. 291n; Warring, supra at paragraph 17).
Delay that is caused solely by the conduct of the defence. This includes situations where the accused’s acts either (a) directly caused the delay, such as defence counsel not being ready to proceed to trial, but the court and Crown are ready to do so (Jordan, supra at paragraph 64) or (b) are shown to be a deliberate and calculated tactic aimed at causing delay. Pre-Jordan jurisprudence indicates that delay occasioned by defence counsel’s unavailability for the first and earliest court date should not be treated as a defence waiver, with the Supreme Court noting that “s. 11(b) [does not] require defence counsel to hold themselves in a state of perpetual availability” (Godin, supra at paragraph 23). However, at least one court post-Jordan has held counsel to a stricter standard (see, for example, R. v. Coulter, 2016 ONCA 704 at paragraph 73).
Jordan specified that defence actions that are legitimately taken to respond to the charges do not constitute defence delay (Jordan, supra at paragraphs 65; Godin, supra at paragraph 11; Morin, supra at 793-794).
Pre-Jordan jurisprudence recognized that while there is a heavy onus on the Crown to provide timely disclosure (R. v. Collins (M.E.),  2 S.C.R. 1104), defence counsel bears some responsibility to exercise due diligence in seeking it (R. v. Sanghera, 2014 BCCA 249, at paragraph 118; D.M.S. v. R., 2016 NBCA 71, at paragraph 27).
The delay resulting from time requested by the accused to retain counsel had previously been found to be attributable to the accused (R. v. Conway,  1 S.C.R. 1659). However, where delay resulted from an accused submitting a Legal Aid application and subsequently re-submitting it after seeking a Rowbotham order, one court post-Jordan concluded that this was properly attributable to institutional delay (D.M.S. v. R, 2016 NBCA 71, at paragraph 24).
(ii) Where presumptive ceiling is exceeded
Where the total delay (minus defence delay) exceeds the presumptive ceiling, it is presumptively unreasonable. However, the Crown may rebut this presumption by showing that the delay is reasonable due to exceptional circumstances (Jordan, supra at paragraph 68).
Exceptional circumstances are defined as those that lie outside the Crown’s control in the sense that they are: (a) reasonably unforeseen or reasonably unavoidable, and (b) such that Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise (Jordan, supra at paragraph 69).
While the determination of whether circumstances are “exceptional” will ultimately depend on the trial judge’s good sense and experience, they will generally fall under one of two categories:
- Discrete events. These could include not only medical and family emergencies (MacDougall, supra; Coulter, supra at paragraphs 81-82) but also unforeseeable or unavoidable developments that may cause the case to go awry, such as a complainant unexpectedly recanting while testifying. This category also includes circumstances where the trial goes longer than reasonably expected despite good faith efforts to establish realistic time estimates. This latter example requires judges to be alive to the practical realities of trials in determining whether this time should be subtracted from the total period of delay (Jordan, supra at paragraphs 72-75).
- Particularly complex cases. This category is intended to account for particularly complex cases where the nature of the evidence or issues require an inordinate amount of trial or preparation time, such that the delay is justified (Jordan, supra at paragraph 77). This could include cases involving novel or complicated legal issues, involving multiple co-accused (e.g. R. v. Vassell, 2016 SCC 26, at paragraph 6; R. v. Singh, 2016 BCCA 427 at paragraphs 87, 89), or a large number of witnesses (Jordan, supra at paragraph 77). Prior to Jordan, cases that were recognized as being particularly complex included multi-count drug indictments with numerous Charter challenges (R. v. Fehr , 1 W.C.B. (2d) 305 at paragraph 65 (B.C.C.A.)); dangerous offender and long-term offender applications (R. v. Vincent (2003), 114 C.R.R. (2d) 163 (Ont. S.C.J.)); and extradition proceedings, where it is necessary to bring an accused person to Canada (R. v. MacIntosh, 2011 NSCA 111 at paragraphs 69, 106, upheld 2013 SCC 23).
Under either category, the Crown has the onus of showing that it took reasonable steps to avoid and address problems before the delay exceeded the ceiling, even if these measures were ultimately unsuccessful. It is not enough to simply point to a past difficulty or blame chronic institutional delay. In complex cases, this includes whether the Crown developed and followed a concrete plan to minimize the delay occasioned by such complexity (Jordan, supra at paragraphs 70, 79; R. v. Auclair, 2014 SCC 6, at paragraph 2).
Where the Crown chooses to prosecute two or more accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the paragraph 11(b) rights of an individual accused (Vassell, supra at paragraph 5). In some situations, the Crown may have to sever the proceedings to vindicate the paragraph 11(b) rights of one the accused (Vassell, supra at paragraph 10; R. v. Manasseri, 2016 ONCA 703 at paragraph 323, discussed in the context of a case subject to the transitional qualifications set out in Jordan).
If the delay cannot be attributed to an exceptional circumstance, it is unreasonable and a stay will follow (Jordan, supra at paragraphs 76, 80).
(iii) Where the ceiling has not yet been met
Where the presumptive ceiling has not yet been met, a court may nevertheless find that the delay in a particular case was unreasonable. In such cases, the onus is on the accused to do so by establishing two things:
It took meaningful steps that demonstrate a sustained effort to expedite the proceedings, taking into consideration what the accused could have done and what it actually did to get the case heard as quickly as possible. To meet this criterion, the accused must demonstrate that it made more than token efforts to expedite the process. This could include attempting to set the earliest possible hearing dates, being cooperative with and responsive to the Crown and the court, and putting the Crown on timely notice when delay was becoming a problem. In making this determination, trial judges should not assess whether each of the accused’s decisions were made perfectly, but whether it acted reasonably (Jordan, supra at paragraphs 84-85).
The case took markedly longer than it reasonably should have. This type of assessment will require a judge to consider a variety of factors, including the complexity of the case, whether the Crown took reasonable steps to expedite the proceedings, and local considerations, such as how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances. This assessment is not based on precise calculations or a focus on minutiae, but rather through a bird’s eye view of the case (Jordan, supra at paragraphs 87-90).
Where the accused cannot establish these two criteria, the paragraph 11(b) application must fail (Jordan, supra at paragraph 82).
(iv) For cases already in the system
The majority in Jordan held that the new framework applies to cases already in the system on the date of the decision (July 8, 2016) (Jordan, supra at paragraph 95; R. v. Williamson, 2016 SCC 28). However, these cases are subject to two transitional qualifications that enable courts to exercise some discretion to allow a matter to proceed where the ceiling has already been exceeded or to stay a matter for delay where the ceiling has not yet been reached (Jordan, supra at paragraph 95).
In determining whether the delay is unreasonable in these transitional cases, trial judges are required to apply the new framework flexibly and contextually, with a view to the parties’ reliance on the previous state of the law (Jordan, supra at paragraph 94).
In cases where the delay falls above the ceiling, the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied (Williamson, supra, at paragraph 24; Béliveau v. R., 2016 QCCA 1549). This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice.
While certain factors are no longer explicitly considered in the new Jordan framework, for cases already in the system, considerations of prejudice and the seriousness of the offence can inform whether the parties’ reliance on the previous state of the law was reasonable (Jordan, supra at paragraph 96; Williamson, supra at paragraph 30; Dupuis c. R., 2016 QCCA 1930, at paragraph 32; Béliveau c. R., 2016 QCCA 1549 at paragraphs 129-131; see also Williamson, supra at paragraphs 33-37 for a discussion of the difficulties that stem from considering the seriousness of the offence as an analytical factor). In addition, trial judges should take into account the high level of tolerance for institutional delays that persist in their particular jurisdictions (Jordan, supra at paragraphs 97, 100-102). Institutional delay begins to run when the parties are ready for trial but the system cannot accommodate them (Morin, supra).
Where delay falls below the ceiling, the trial judge will not require the accused to demonstrate that it took initiative to expedite matters, as this was not required under the Morin framework. The two criteria — accused’s 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 (Jordan, supra at paragraph 99). For these cases, although the accused will not be required to demonstrate that it took initiative to expedite any such initiative would assist the accused to show that the delay markedly exceeded what was reasonably required (Jordan, supra at paragraph 99). Institutional delay that was reasonably acceptable in the relevant jurisdiction under the previous framework will also be considered as a component of the reasonable time requirements (Jordan, supra at paragraph 100).
In setting out these transitional qualifications, the Supreme Court noted that, as a general rule, its judgment should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one, acknowledging that change takes time (Jordan, supra at paragraph 102). Rather, these measures constitute an attempt to find a balance between granting stays of proceedings en masse simply because problems with institutional delay currently exist, and holding the paragraph 11(b) rights of accused persons in abeyance while the system works to respond to this new framework.
6. Procedure and remedy
An inquiry into unreasonable delay is triggered by an application under subsection 24(1) of the Charter (Morin, supra). The application should normally be made to the trial court, although a court of superior jurisdiction may entertain an application (R. v. Smith, supra). For example, this would be appropriate were the trial court itself is implicated in the delay (R. v. Rahey,  1 S.C.R. 588). Where the delay is above the ceiling, a full paragraph 11(b) analysis will only be triggered where the Crown seeks to rely on exceptional circumstances.” (Jordan, supra at paragraph 111).
An application may be brought prior to or at trial. A violation of this right generally cannot be first raised on appeal (R. v. Mason, 2003 NSCA 139, at paragraph 12; R. v. Rabba (1991) 3 OR (3d) 238 (Ont CA) (Arbour J.A., as she then was)).
A stay of proceedings is the minimum remedy for a breach of this right because the court has lost jurisdiction to proceed (Rahey, supra; see also Jordan, supra at paragraphs 76 and 114). Excessive delay that does not reach constitutional limits can be a factor in mitigation of sentence (R. v. Bosley,  O.J. No. 2656 (Ont. C.A.)).
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