In Canada, criminal courses can be stayed when they take too long to get to trial. The right to have a trial in a reasonable amount of time has been overhauled by the Supreme Court in a July 2016 case, R. v. Jordan, 2016 SCC 27.  There is now an 18 month ceiling on acceptable delay in the Ontario Court of Justice. Whether this will have a positive impact on delay is doubtful.

Before Jordan there was no hard-limit on when cases would be kicked out for delay. There were cases in the Ontario Court of Justice, however, where cases were stayed around the 13 to 14 month of total delay.  The Supreme Court has now imposed ceilings on delay, using the following analysis:

At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. 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). Delay attributable to or waived by the defence does not count towards the presumptive ceiling.

The upside of the new framework is that delay no longer depends on an accused person showing how they have actually suffered harm or prejudice.

The troubling part of the new framework is that 18 months is far too long for most cases to get to trial in the Ontario Court of Justice. In other words, the new framework will do nothing to encourage quick prosecutions in most cases.  Justice Cromwell’s dissent explains this problem:

Moreover, the ceilings appear to be illogical. The ceilings accept the Morin guidelines for institutional delay: 8 to 10 months in provincial courts and 14 to 18 months in cases involving a preliminary hearing and a trial: para. 52. This means that the proposed ceilings allow 8 to 10 months for the inherent time requirements of the case in provincial courts, which seems long, while allowing only marginally more inherent time requirements (12 to 16 months) for cases — generally significantly more complex cases — that involve a preliminary inquiry and a trial. As well, under the ceilings, the seriousness or gravity of the offence cannot be relied on to discharge the onus which the ceilings impose: para. 81. Yet under the transitional scheme, this remains a relevant factor: para. 96. The illogical result is that serious offences are more likely to be stayed under the ceilings than under the transitional scheme.

What evidence there is in the record suggests that it would be unwise to establish these sorts of ceilings. For the vast majority of cases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist. If anything, such high ceilings are more likely to feed such a culture rather than eliminate it.

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