Barrett Richard Jordan Appellant v. Her Majesty The Queen, 2016 SCC 27

SUPREME COURT OF CANADA Citation: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 Appeal heard: October 7, 2015 Judgment rendered: July 8, 2016 Docket: 36068 Between: Barrett Richard Jordan Appellant and Her Majesty The Queen Respondent - and - Attorney General of Alberta, British Columbia Civil Liberties Association and Criminal Lawyers’ Association (Ontario) Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Joint Reasons for Judgment: (paras. 1 to 141) Reasons Concurring in the Result: (paras. 142 to 303) Moldaver, Karakatsanis and Brown JJ. (Abella and Côté JJ. concurring) Cromwell J. (McLachlin C.J. and Wagner and Gascon JJ. concurring)

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 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 Indexed as: R. v. Jordan 2016 SCC 27 File No.: 36068. 2015: October 7; 2016: July 8.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Right to be tried within reasonable time — Delay of more than four yearsbetween charges and end of trial — Whether accused’s right to be tried within reasonable time under s. 11(

b) of Canadian Charter ofRights and Freedoms infringed — New framework for applying s. 11(b). J was charged in December 2008 for his role in a dial-a-dope operation. His trial ended in February 2013. J brought anapplication under s. 11(

b) of the Canadian Charter of Rights and Freedoms, seeking a stay of proceedings due to the delay. In dismissingthe application, the trial judge applied the framework set out in R. v. Morin, (SCC), [1992] 1 S.C.R. 771. Ultimately, Jwas convicted. The Court of Appeal dismissed the appeal. Held: The appeal should be allowed, the convictions set aside and a stay of proceedings entered. Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: The delay was unreasonable and J’s s. 11(

b) Charter right wasinfringed. The Morin framework for applying s. 11(

b) has given rise to both doctrinal and practical problems, contributing to a culture ofdelay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itselfbecome a burden on already over-burdened trial courts. From a practical perspective, the Morin framework’s after-the-factrationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practicesand resourcing problems. A new framework is therefore required for applying s. 11(b). This framework is intended to focus the s. 11(

b) analysis onthe issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice,with a view to fulfilling s. 11(b)’s important objectives. At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual oranticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court aftera preliminary inquiry).

Delay attributable to or waived by the defence does not count towards the presumptive ceiling. Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on thebasis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’scontrol in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes ofadjudicating a s. 11(

b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trialjudge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories:discrete events and particularly complex cases. If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delayreasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case’s complexity,the delay is reasonable and no further analysis is required.

An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceedsthe ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, theabsence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time haselapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for theprolonged delay.

Below the presumptive ceiling, however, the burden 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 casetook markedly longer than it reasonably should have. Absent these two factors, the s. 11(

b) application must fail. Stays beneath thepresumptive ceiling should only be granted in clear cases. As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to thedefence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and thecourt, 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.

At the same time, trial judges should not take this opportunity, with the benefit of hindsight, toquestion every decision made by the defence. The defence is required to act reasonably, not perfectly. Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable timerequirements of the case. These requirements derive from a variety of factors, including the complexity of the case and localconsiderations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practiceunder the Morin framework.

For cases currently in the system, a contextual application of the new framework is required to avoid repeating thepost-Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for thosecases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitionalexceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptionalcircumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonablereliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previousframework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls belowthe ceiling.

For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what wasreasonably 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 preceding this decision. Sincedefence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before therelease of this decision.

Further, if the delay was occasioned by an institutional delay that was, before this decision was released,reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of thereasonable time requirements of the case for cases currently in the system. In this case, the total delay between the charges and the end of trial was 49.5 months. As the trial judge found, four monthsof this delay were waived by J when he changed counsel shortly before the trial was set to begin, necessitating an adjournment.

Inaddition, one and a half months of the delay were caused solely by J for the adjournment of the preliminary inquiry because his counselwas unavailable for closing submissions on the last day. This leaves a remaining delay of 44 months, an amount that vastly exceeds thepresumptive ceiling of 30 months in the superior court. The Crown has failed to discharge its burden of demonstrating that the delay of44 months (excluding defence delay) was reasonable.

While the case against J may have been moderately complex given the amount ofevidence and the number of co-accused, it was not so exceptionally complex that it would justify such a delay. Nor does the transitional exceptional circumstance justify the delay in this case. Since J’s charges were brought prior to therelease of this decision, the Crown was operating without notice of the new framework within a jurisdiction with some systemic delayissues.

But a total delay of 44 months (excluding defence delay), of which the vast majority was either Crown or institutional delay, in anordinary 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 on the previous state of the law was reasonable. While the Crown did make someefforts to bring the matter to trial more quickly, these efforts were too little and too late. And the systemic delay problems that existed atthe time cannot justify the delay either.

Much of the institutional delay could have been avoided had the Crown proceeded on the basisof a more reasonable plan by more accurately estimating the amount of time needed to present its case. To the extent that the trial judgeheld that this delay was reasonable, he erred. All the parties were operating within the culture of complacency towards delay that has pervaded the criminal justice systemin recent years. Broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’sconfidence by delivering justice in a timely manner.

Ultimately, all participants in the justice system must work in concert to achievespeedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionallyrequired. Per McLachlin C.J. and Cromwell, Wagner and Gascon JJ.: This Court’s jurisprudence for dealing with alleged breaches ofs. 11(

b) of the Canadian Charter of Rights and Freedoms over the last 30 years supplies a clear answer to this appeal. Striking out in thecompletely new direction adopted by the majority is unnecessary. A reasonable time for trial under s. 11(

b) cannot and should not bedefined by numerical ceilings, as the majority concludes. The right to be tried in a reasonable time is multi-factored, fact-sensitive, and case-specific; its application to specific cases isunavoidably complex. The relevant factors and general approach set out in R. v. Morin, (SCC), [1992] 1 S.C.R. 771,respond to these complexities.

With modest adjustments to make the analysis more straightforward and with some additionalclarification, a revised Morin framework will continue to ensure that the constitutional right of accused persons to be tried in a reasonabletime is defined and applied in a way that appropriately balances the many relevant considerations. In order to do so, the Morinconsiderations should be regrouped under four main analytical steps. First, the accused must establish that there is a basis for the s. 11(

b) inquiry. The court should look to the overall periodbetween the charge and the completion of the trial to determine whether its length merits further inquiry. Second, the court must determine on an objective basis what would be a reasonable time for the disposition of a case like theone under review — that is, how long a case of this nature should reasonably take. The objective standard of reasonableness has two

components: institutional delay and inherent time requirements of the case. Both of these periods of time are to be determined objectively. The acceptable period of institutional delay is the period that is reasonably required for the court to be ready to hear the case once the parties are ready to proceed, and is determined in accordance with the administrative guidelines for institutional delay set out by this Court in Morin : eight to ten months before the provincial courts and six to eight months before the superior courts.

These guidelines set some rough limits on the point at which inadequacy of state resources will be accepted as an excuse. The guidelines should not be understood as precluding allowance for any sudden and temporary strain on resources that causes a temporary congestion in the courts.

The inherent time requirements of a case, on the other hand, represent the period of time that is reasonably required for the parties to be ready to proceed and to conclude the trial for a case similar in nature to the one before the court, and are to be determined on the basis of judicial experience, supplemented by submissions of counsel and evidence. In estimating a reasonable time period, the court should also take into account the liberty interests of the accused. Third, the court must consider how much of the actual delay in the case counts against the state.

This is done by subtracting the periods attributable to the defence, including any waived time periods, from the overall period of delay. When the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than mere acquiescence in the inevitable, and that it meets the high bar of being clear, unequivocal, and informed acceptance.

Delay resulting from unreasonable actions solely attributable to the accused must also be subtracted from the period for which the state is responsible, such as last-minute changes in counsel or adjournments flowing from a lack of diligence. It is also necessary to subtract from the actual delay any periods that, although not fairly attributable to the defence, are nonetheless not fairly counted against the state, including unavoidable delays due to inclement weather or illness of a trial participant.

Fourth, the court must determine whether the actual period of time that fairly counts against the state exceeds the reasonable time by more than can be justified on any acceptable basis. Where the actual time exceeds what would have been reasonable for a case of that nature, the result will be a finding of unreasonable delay unless the Crown can show that the delay was justified.

Even substantial excess delay may be justified and therefore reasonable where, for example, there is a particularly strong societal interest in the prosecution proceeding on its merits, or where the delay results from temporary and extraordinary pressures on counsel or the court system. However, it does not follow that in these conditions the excess period is invariably justified. The accused still may be able to demonstrate actual prejudice.

Although actual prejudice need not be proved to find an infringement of s. 11 ( b ), its presence would make unreasonable (in the particular circumstances of the case) a delay that might otherwise be objectively viewed as reasonable. As a result, justification may be found to be lacking. Under this revised Morin framework, any delay in excess of the reasonable time requirements and any actual prejudice arising from the overall delay must be evaluated in light of societal interests: on one hand, fair treatment and prompt trial of accused persons and, on the other, determination of cases on their merits.

If there are exceptionally strong societal interests in the prosecution of a case against an accused which substantially outweigh the societal interest and the interest of the accused person in prompt trials, these can serve as an acceptable basis upon which exceeding the inherent and institutional requirements of a case can be justified. This approach is a slight reorientation of the Morin framework because the focus is more explicitly on the period of delay which exceeds what would have been reasonable. But there is no change in principle.

Applying these four steps of the revised Morin framework in this case, J’s constitutional right to be tried within a reasonable time was violated. The 49.5-month delay from the charges to the end of the scheduled trial date is sufficient to trigger an inquiry into whether the delay is unreasonable. There were 10.5 months of inherent delay and 18 months of institutional delay. These findings make it appropriate to conclude that the reasonable time requirements for a case of this nature were 28.5 months. The case in fact took 49.5 months. The difference is 21 months.

Of that, 4 months are attributable to the defence. The rest ― a period of 17 months — counts against the state. In other words, this case took almost a year and a half longer than what would be a reasonable period to prosecute a case of this nature. This is not a close case. The time to the end of trial greatly exceeds what would be a reasonable time to prosecute a similar case. While there are societal interests in the trial on the merits of the serious drug crimes alleged against J, these cannot make reasonable the grossly excessive time that it took society to bring him to trial.

In contrast, the majority’s new framework is not an appropriate approach to interpreting and applying the s. 11 (

b) right, for several reasons. First, the new approach reduces reasonableness to numerical ceilings. Reasonableness cannot be judicially defined with precision or captured by a number. As well, the majority’s judicially created ceilings largely uncouple the right to be tried within a reasonable time from the bedrock constitutional requirement of reasonableness, which is the core of the right. Moreover, this approach unjustifiably diminishes the right to be tried within a reasonable time.

When the elapsed time is below the ceiling, an accused would have to show not only that the case took markedly longer than it reasonably should have but also that he or she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. This requirement has no bearing on whether the delay was unreasonable. The majority’s approach also exceeds the proper role of the Court. Creating fixed or presumptive ceilings is a task better left to legislatures. The ceilings place new limits on the exercise of the s. 11 (

b) right to a trial within a reasonable time for reasons of administrative efficiency that have nothing to do with whether the delay in a given case was or was not excessive. This is inconsistent with the judicial role. As well, the ceilings have no support in the record in this case. 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 and are more likely to feed such a culture.

The majority’s approach also risks negative consequences for the administration of justice. The presumptive ceilings are unlikely to improve the pace at which the vast majority of cases move through the system. As well, if this new framework were applied immediately, the majority’s transitional provisions would not avoid the risk of thousands of judicial stays.

Moreover, the increased simplicity which is said to flow from the majority’s new framework is likely illusory. Even ifcreating ceilings were an appropriate task for the courts and even if there were an appropriate evidentiary basis for them, there is littlereason to think these ceilings would avoid the complexities inherent in deciding whether a particular delay is unreasonable. Themajority’s framework simply moves the complexities of the analysis to a new location: deciding whether to rebut the presumption that adelay is unreasonable if it exceeds the ceiling in particular cases.

Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in theappeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays.In short, the new framework is wrong in principle and unwise in practice. Cases Cited By Moldaver, Karakatsanis and Brown JJ. Overruled: R. v. Morin, (SCC), [1992] 1 S.C.R. 771; referred to: R. v. Askov, (SCC),[1990] 2 S.C.R. 1199; R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d) 396; R. v.

Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v.Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v. Henry,2005 SCC 76, [2005] 3 S.C.R. 609; R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45; R. v. Conway, (SCC), [1989] 1 S.C.R. 1659; R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1; R. v. Vassell, 2016 SCC 26, [2016] 1S.C.R. 625; R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v.

Brydges, (SCC), [1990] 1 S.C.R. 190; R. v. Feeney, (SCC), [1997] 2 S.C.R. 117; Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; Lavallee, Rackel & Heintz v. Canada (AttorneyGeneral), 2002 SCC 61, [2002] 3 S.C.R. 209; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7,[2015] 1 S.C.R. 401; R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493; R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74. By Cromwell J. Applied: R. v. Morin, (SCC), [1992] 1 S.C.R. 771, aff’g (1990), (ON CA), 55 C.C.C.(3d) 209; referred to: Mills v.

The Queen, (SCC), [1986] 1 S.C.R. 863; R. v. Rahey, (SCC), [1987] 1S.C.R. 588; R. v. Conway, (SCC), [1989] 1 S.C.R. 1659; R. v. Smith, (SCC), [1989] 2 S.C.R. 1120; R. v.Askov, (SCC), [1990] 2 S.C.R. 1199; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73; R. v. Sharma, (SCC), [1992] 1 S.C.R. 814; R. v. Brassard, (SCC),[1993] 4 S.C.R. 287; R. v. Nuosci, (SCC), [1993] 4 S.C.R. 283; R. v. Ghavami, 2010 BCCA 126, 253 C.C.C. (3d) 74;Beavers v. Haubert, 198 U.S. 77 (1905). Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b).

Criminal Code, R.S.C. 1985, c. C-46, s. 561. International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 14(3)(c). Magna Carta (1215), clause 40. Speedy Trial Act of 1974, 18 U.S.C. § 3161 (2012). Authors Cited Alberta Justice and Solicitor General. Criminal Justice Division. “Injecting a Sense of Urgency: A new approach to delivering justice inserious and violent criminal cases”, report by Greg Lepp, April 2013 (online:https://justice.alberta.ca/programs_services/criminal_pros/Documents/InjectingSenseUrgency.pdf).

Amsterdam, Anthony G. “Speedy Criminal Trial: Rights and Remedies” (1975), 27 Stan. L. Rev. 525. B.C. Justice Reform Initiative. A Criminal Justice System for the 21st Century: Final Report to the Minister of Justice and AttorneyGeneral Honourable Shirley Bond, report by D. Geoffrey Cowper, Q.C., Chair. Victoria: The Initiative, 2012. British Columbia.

Provincial Court. “Justice Delayed: A Report of the Provincial Court of British Columbia Concerning JudicialResources”, September 14, 2010 (online: www.provincialcourt.bc.ca/downloads/pdf/Justice_Delayed_-_A_Report_of_the_Provincial_Court_of_British_Columbia_Concerning_Judicial_Resource.pdf). British Columbia. Provincial Court. “The Semi-Annual Time to Trial Report of the Provincial Court of British Columbia to March 31,2015” (online: www.provincialcourt.bc.ca/downloads/pdf/Time%20to%20Trial%20-%20Update%20(as%20at%20March%2031,%202015).pdf). Canada.

Department of Justice. “The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies andAccess to the Justice System”, 2006 (online: www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/). Canada. Law Reform Commission. Working Paper 67. Trial Within a Reasonable Time: A Working Paper Prepared for the Law ReformCommission of Canada. Ottawa: Canada Communication Group, 1994. Code, Michael A. Trial Within a Reasonable Time: A Short History of Recent Controversies Surrounding Speedy Trial Rights in Canadaand the United States. Scarborough, Ont.: Carswell, 1992.

Hill, Casey, and Jeremy Tatum. “Re-Chartering an Old Course Rather than Staying Anew in Remedying Unreasonable Delay under the Charter ”, paper presented at the Crown Defence Conference, Winnipeg, September 2012 (online: www.crowndefence.ca/wp- content/uploads/2011/05/Justice-Casey-Hill_Remedying-Unreasonable-Delay1.pdf). Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1). Hopwood, Shon. “The Not So Speedy Trial Act” (2014), 89 Wash. L. Rev. 709. LaFave, Wayne R., et al. Criminal Procedure , 5th ed. St. Paul, Minn.: West, 2009.

Lamer, Antonio. “The Role of Judges”, address to the Empire Club of Canada, 1995 (online: http://speeches.empireclub.org/61076/data? n=1). LeSage, Patrick J., and Michael Code. Report of the Review of Large and Complex Criminal Case Procedures . Toronto: Ontario Ministry of the Attorney General, 2008. McLachlin, Beverley. “The Challenges We Face” (2007), 40 U.B.C. L. Rev. 819. Ruby, Clayton C. “Trial Within a Reasonable Time under

Section 11 (b): the Ontario Court of Appeal Disconnects from the Supreme Court” (2013), 2 C.R. (7th) 91 . Venice Commission (European Commission for Democracy through Law). Can excessive length of proceedings be remedied? Strasbourg: Council of Europe Publishing, 2007. APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, MacKenzie and Stromberg-Stein JJ.A.), 2014 BCCA 241 , 357 B.C.A.C. 137, 611 W.A.C. 137, 313 C.R.R. (2d) 1, [2014] B.C.J. No. 1263 (QL), 2014 CarswellBC 1760 (WL Can.), affirming a decision of Verhoeven J., 2012 BCSC 1735 , [2012] B.C.J.

No. 2448 (QL), 2012 CarswellBC 3655 (WL Can.). Appeal allowed. 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 intervener the Criminal Lawyers’ Association (Ontario). The judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. was delivered by Moldaver, Karakatsanis and Brown JJ. — I.

Introduction [ 1 ] Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.

Section 11(

b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”. [ 2 ] Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives.

And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs. [ 3 ] An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high. [ 4 ] Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative.

Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11 ( b ). These difficulties have fostered a culture of complacency within the system towards delay. [ 5 ] A change of direction is therefore required. Below, we set out a new framework for applying s. 11 ( b ).

At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness, the framework accounts for case-specific factors both above and below the presumptive ceiling. This framework is intended to focus the s. 11 (

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11 ( b )’s important objectives. [ 6 ] Applying this new framework, including its transitional features, we conclude that the appellant was not brought to trial within a reasonable time. We would allow the appeal, set aside his convictions and direct a stay of proceedings. II. Facts

[7] The appellant, Mr. Jordan, was arrested in December 2008 following an RCMP investigation into a “dial-a-dope”operation in Langley and Surrey, British Columbia. He was eventually charged with nine other co-accused on a 14-count informationalleging various offences relating to possession and trafficking. Mr. Jordan remained in custody until February 2009, when he wasreleased under strict house arrest and other restrictive bail conditions. [8] The 10 co-accused made numerous appearances through the early months of 2009 as they obtained counsel, madetheir elections, and coordinated schedules.

By May 2009, all counsel had agreed that the preliminary inquiry would requireapproximately four days, and it was eventually set for May 13, 14, 17 and 18, 2010. Several of the co-accused entered guilty pleas orwere severed from the information. By the time the preliminary inquiry commenced, there were five co-accused left on the information,including Mr.

Jordan. [9] At the preliminary inquiry, it quickly became apparent that the initial time estimate of four days was too low.Crown counsel advised the preliminary inquiry judge that the Crown would be able to present all of the evidence against the four co-accused, but that the Crown would require significantly more court time to present the “mountain of evidence” it had in respect of Mr.Jordan. The parties sought and obtained continuation dates throughout 2010 and into 2011. In May 2011, Mr. Jordan (along with two co-accused) was committed to stand trial on all 14 counts.

The preliminary inquiry — which ended up taking nine days of court time — hadtaken a full year to complete. It was now two and a half years since Mr. Jordan had been charged. [10] Following committal, the matter moved to the British Columbia Supreme Court. Crown counsel estimated that sixweeks would be required for trial, and the trial was set for the first available six-week block — in September 2012. A new Crowncounsel took over the file in July 2011, and wrote to Mr.

Jordan’s counsel advising of her estimate that only two to three weeks would beneeded to present the Crown’s case, and offering to seek earlier trial dates. Mr. Jordan’s counsel did not respond to this offer. Later, inDecember 2011, one of the remaining two co-accused was severed from the information. Only Mr. Jordan and one co-accused remained. [11] As Mr. Jordan awaited trial, his liberty was restricted. He spent two months in custody following his arrest inDecember 2008, which was followed by close to four years of restrictive bail conditions. However, in July 2011, Mr.

Jordan wasconvicted of prior drug charges and was sentenced to a 15-month conditional sentence order (“CSO”), which he served until October2012. The conditions of the CSO were similar to the bail conditions Mr. Jordan was under for the charges at issue in this appeal.Therefore, for 15 months of the delay, Mr. Jordan’s liberty was restricted by both the bail conditions and the CSO. [12] At the start of his trial in September 2012, Mr. Jordan brought an application for a stay of proceedings alleging abreach of his s. 11(

b) right to be tried within a reasonable time. This application was dismissed. The trial was adjourned, and it eventuallyconcluded in February 2013 with his conviction on five drug-related offences. The total delay from Mr. Jordan’s charges to theconclusion of the trial was 49.5 months. III. Judgments Below A. British Columbia Supreme Court, 2012 BCSC 1735 [13] The trial judge found that the delay in bringing this matter to trial was not unreasonable, and declined to enter a stayof proceedings. In concluding there was no s. 11(

b) breach, he applied the framework from this Court’s decision in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, including the guidelines set out in it for how much institutional delay is generally tolerable. [14] The trial judge found that the inherent time requirements for this case were 10.5 months. He also found that, of thetotal delay, four months (incurred when Mr.

Jordan changed counsel and requested an adjournment of his trial) were attributable to thedefence, and two months were attributable to the Crown. [15] The bulk of the delay — 32.5 months — was attributable to institutional delay, of which 19 months occurred at theProvincial Court and 13.5 months occurred at the B.C. Supreme Court.

This was, as the trial judge noted, well outside the Moringuidelines for tolerable institutional delay of eight to ten months in the provincial court, and six to eight months in the superior court.However, the trial judge held that institutional delay should be given less weight than Crown delay in the final balancing. [16] The trial judge then considered the issue of prejudice. He reasoned that if the institutional delay had been within theMorin guidelines, the trial would have concluded by May 2011. Most of the additional delay coincided with the term of Mr. Jordan’sCSO. The trial judge therefore found that Mr.

Jordan’s liberty interest was not significantly prejudiced by the delay. While Mr. Jordan’ssecurity of the person was affected, any prejudice was minimized by the fact that he was facing other outstanding charges for much ofthe delay. Finally, he found no prejudice to Mr. Jordan’s right to make full answer and defence because the Crown’s case did not dependon the memory of witnesses. [17] The trial judge balanced all of the factors and concluded that Mr. Jordan’s s. 11(

b) right had not been infringed, dueprimarily to the fact that Mr. Jordan did not suffer significant prejudice. B. British Columbia Court of Appeal, 2014 BCCA 241, 357 B.C.A.C. 137 [18] Mr. Jordan appealed. He argued that the trial judge erred in his assessment of prejudice and gave inadequate weightto the excessive institutional delay. The Court of Appeal found that the trial judge did not err in his attribution of the delay, or in hisweighing of the institutional delay. Further, the trial judge’s determination on prejudice was a finding of fact that was entitled todeference.

Finally, the trial judge did not err by declining to infer prejudice based on the length of the delay alone. The appeal wasdismissed. IV. Analysis A. The Right to Be Tried Within a Reasonable Time Is Important to Individuals and Society as a Whole

[19] As we have said, the right to be tried within a reasonable time is central to the administration of Canada’s system ofcriminal justice. It finds expression in the familiar maxim: “Justice delayed is justice denied.” An unreasonable delay denies justice tothe accused, victims and their families, and the public as a whole. [20] Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treatingpresumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial.

Libertyis engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in thecommunity under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress,anxiety, and stigma an accused may suffer.

Fair trial interests are affected because the longer a trial is delayed, the more likely it is thatsome accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degradedevidence. [21] At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to seetheir trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay.

Accused personsmay seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they willobtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole.

Section 11(

b) was notintended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2). [22] Of course, the interests protected by s. 11(

b) extend beyond those of accused persons. Timely trials impact otherpeople who play a role in and are affected by criminal trials, as well as the public’s confidence in the administration of justice. [23] Victims of crime and their families may be devastated by criminal acts and therefore have a special interest in timelytrials (R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1220-21).

Delay aggravates victims’ suffering, preventing themfrom moving on with their lives. [24] Timely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the “worryand frustration [they experience] until they have given their testimony” (Askov, at p. 1220). Repeated delays interrupt their personal,employment or business activities, creating inconvenience that may present a disincentive to their participation. [25] Last but certainly not least, timely trials are important to maintaining overall public confidence in the administrationof justice.

As McLachlin J. (as she then was) put it in Morin, “delays are of consequence not only to the accused, but may affect thepublic interest in the prompt and fair administration of justice” (p. 810). Crime is of serious concern to all members of the community.Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (seeAskov, at p. 1220).

Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration withthe judicial system and eventually to a feeling of contempt for court procedures” (p. 1221). [26] Extended delays undermine public confidence in the system. And public confidence is essential to the survival of thesystem itself, as “a fair and balanced criminal justice system simply cannot exist without the support of the community” (Askov, at p.1221). [27] Canadians therefore rightly expect a system that can deliver quality justice in a reasonably efficient and timelymanner.

Fairness and timeliness are sometimes thought to be in mutual tension, but this is not so. As D. Geoffrey Cowper, Q.C., wrote ina report commissioned by the B.C. Justice Reform Initiative: . . . the widely perceived conflict between justice and efficiency goals is not based in reason or sound analysis. The real experience of thesystem is that both must be pursued in order for each to be realised: they are, in practice, interdependent. (A Criminal Justice System for the 21st Century (2012), at p. 75) [28] In short, timely trials further the interests of justice.

They ensure that the system functions in a fair and efficientmanner; tolerating trials after long delays does not. Swift, predictable justice, “the most powerful deterrent of crime” is seriouslyundermined and in some cases rendered illusory by delayed trials (McLachlin C.J., “The Challenges We Face”, remarks to the EmpireClub of Canada, published in (2007), 40 U.B.C. L. Rev. 819, at p. 825). B.

Problems With the Current Framework [29] While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view,developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinaland practical problems, contributing to a culture of delay and complacency towards it. [30] The Morin framework requires courts to balance four factors in determining whether a breach of s. 11(

b) hasoccurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defencedelay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of theperson, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessedagainst a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight monthsafter committal for trial in the superior court.

The Morin guidelines reflect the fact that resources are finite and there must accordingly besome tolerance for institutional delay. Institutional delay within or close to the guidelines has generally been considered to be reasonable. [31] This framework suffers from a number of related doctrinal shortcomings. [32] First, its application is highly unpredictable. It has been interpreted so as to permit endless flexibility, making itdifficult 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. [ 33 ] Second, as the parties and interveners point out, 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. As to the confusion prejudice has caused, courts have struggled to distinguish between “actual” and “inferred” prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests.

Courts have also found that “it may not always be easy” to distinguish between prejudice stemming from the delay versus the charge itself ( R. v. Pidskalny , 2013 SKCA 74 , 299 C.C.C. (3d) 396, at para. 43 ). And even if sufficient evidence is adduced, the

interpretation of that evidence is a highly subjective enterprise. [ 34 ] Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. 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 endured.

Delayed trials may also cause prejudice to the administration of justice. [ 35 ] 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” (M. A. Code, Trial Within a Reasonable Time (1992), at p. 117 (emphasis in original)).

Courts are instead left to pick up the pieces once the delay has transpired. This after-the-fact review of past delay is understandably frustrating for trial judges, who have only one remedial tool at their disposal — a stay of proceedings. It is therefore unsurprising that courts have occasionally strained in applying the Morin framework to avoid a stay. [1] [ 36 ] The retrospective analysis required by Morin also encourages parties to quibble over rationalizations for vast periods of pre-trial delay.

Here, for example, the Crown argues that the trial judge erred in characterizing most of the delay as Crown or institutional delay. Had he assessed it properly, the argument goes, he would have attributed only 5 to 8 months as Crown or institutional delay, as opposed to 34.5 months. Competing after-the-fact explanations allow for potentially limitless variations in permissible delay.

As the intervener the Criminal Lawyers’ Association (Ontario) submits: “Boundless flexibility is incompatible with the concept of a Charter right and has proved to serve witnesses, victims, defendants and the justice system’s reputation poorly” (I.F., at para. 12). [ 37 ] Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v.

Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay. [ 38 ] 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. [ 39 ] These doctrinal problems have contributed to problems in practice. [ 40 ] As we have observed, a culture of complacency towards delay has emerged in the criminal justice system (see, e.g., Alberta Justice and Solicitor General, Criminal Justice Division, “Injecting a Sense of Urgency: A new approach to delivering justice in serious and violent criminal cases”, report by G. Lepp (April 2013) (online), at p. 17; Cowper, at p. 4; P. J. LeSage and M.

Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at p. 15; Canada, Department of Justice, “The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System” (2006) (online), at pp. 5- 6). Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system” (LeSage and Code, at p. 16).

It “rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system” (Cowper, at p. 48). [ 41 ] The Morin framework does not address this culture of complacency. Delay is condemned or rationalized at the back end. As a result, participants in the justice system — police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament — are not encouraged to take preventative measures to address inefficient practices and resourcing problems.

Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken. In many cases, however, much remains to be done. [ 42 ] Aggravating the tolerance for delay is the increased complexity of pre-trial and trial processes since Morin . New offences, procedures, obligations on the Crown and police, and legal tests have emerged.

Many of them put a premium on fairness, reasonableness, and a fact-specific analysis. They take time. They also take up judges, courtrooms, and other resources. [ 43 ] Complexity is sometimes unavoidable in order to achieve fairness or ensure that the state lives up to its constitutional obligations. But the quality of justice does not always increase proportionally to the length and complexity of a trial. Unnecessary procedural steps and inefficient advocacy have the opposite effect, weighing down the entire system. A criminal proceeding does not take place in a vacuum.

Each procedural step or motion that is improperly taken, or takes longer than it should, along with each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts. [ 44 ] The intervener Attorney General of Alberta submits that a change in courtroom culture is needed.

This submission echoes former Chief Justice Lamer’s two decades-old call for participants in the justice system to “find ways to retain a fair process . . . that can achieve practical results in a reasonable time and at reasonable expense” (“The Role of Judges”, address to the Empire Club of Canada, 1995 (online)).

[ 45 ] We agree. And, along with other participants in the justice system, this Court has a role to play in changing courtroom culture and facilitating a more efficient criminal justice system, thereby protecting the right to trial within a reasonable time. We accept Mr. Jordan’s invitation — which was echoed by the Criminal Lawyers’ Association (Ontario), the British Columbia Civil Liberties Association, and Mr. Williamson in the companion appeal of R. v. Williamson , 2016 SCC 28 , [2016] 1 S.C.R. 741 — to revise the s. 11 (

b) analysis. While departing from a precedent of this Court “is a step not to be lightly undertaken” ( Ontario (Attorney General) v. Fraser , 2011 SCC 20 , [2011] 2 S.C.R. 3, at para. 56 ), as we have explained, “there are compelling reasons to do so” ( R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609, at para. 44 ). V. A New Framework for

Section 11(

b) Applications A.

Summary [ 46 ] 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). [ 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. [ 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. B. The Presumptive Ceiling [ 49 ] The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial.

For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. [2] We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry. [3] As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted. [ 50 ] A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges.

It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(

b) is not a hollow promise. [ 51 ] While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, 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.

Contrary to what our colleague Cromwell J. asserts, we do not depart from the concept of reasonableness; we simply adopt a different view of how reasonableness should be assessed. [ 52 ] In setting the presumptive ceiling, we were guided by a number of considerations. First, it takes as a starting point the Morin guidelines. [4] In Morin , this Court set eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court following an accused’s committal for trial.

Thus, under Morin , a total of 14 to 18 months was the measure for proceedings involving both the provincial court and the superior court. [ 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. [ 54 ] 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. As this Court wrote in Morin , “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin , at para. 37 ).

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. [ 55 ] Fourth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice. [ 56 ] We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable.

The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling.

It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached. [ 57 ] There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.

[58] Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework“reduces reasonableness to two numerical ceilings” (para. 254). As we will explain in greater detail, this is clearly not so. Thepresumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crownto justify the length of time the case has taken.

As our colleague acknowledges, pursuant to our framework, “the judge must look at thecircumstances of the particular case at hand” in assessing the reasonableness of a delay (para. 301). [59] We now turn to discussing the various case-specific factors that must be accounted for both above and below thepresumptive ceiling. C. Accounting for Defence Delay [60] Application of this framework, as under the Morin framework, begins with calculating the total delay from thecharge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted.

The defenceshould not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(

b) is toexpedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802). [61] Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp.790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge ofhis or her rights, as well as the effect waiver will have on those rights.

However, as in the past, “[i]n considering the issue of ‘waiver’ inthe context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specificperiods in the overall assessment of reasonableness” (R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, per L’Heureux-DubéJ., at p. 1686). [62] Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior courttrial to a provincial court trial for legitimate reasons. To do so, the Crown’s consent must be obtained (Criminal Code, R.S.C. 1985, c. C-46, s. 561).

Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as acondition of its consent. [63] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defencedelay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to bea deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28).

Deliberate and calculated defence tactics aimed atcausing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judgesshould generally dismiss such applications and requests the moment it becomes apparent they are frivolous. [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed,but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

However, periods of timeduring which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. Thisshould discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will ofcourse be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

Forexample, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defenceapplications and requests that are not frivolous will also generally not count against the defence. We have already accounted forprocedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer anddefence.

While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defenceactions. [66] To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delaycomprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct.

Defence actions legitimatelytaken to respond to the charges do not constitute defence delay. [67] The next step of the analysis depends upon whether the remaining delay — that is, the delay which was not causedby the defence — is above or below the presumptive ceiling. D. Above the Ceiling — Presumptively Unreasonable Delay [68] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut thispresumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

Exceptional Circumstances [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen orreasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once theyarise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare orentirely uncommon. [70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that ittook reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resortto case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issuesfor trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is notrequired to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid thedelay.

[ 71 ] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [ 72 ] Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.

Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition. [ 73 ] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well- oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [ 74 ] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [ 75 ] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell , 2016 SCC 26 , [2016] 1 S.C.R. 625).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [ 76 ] If the remaining delay falls below the ceiling, the accused may still demonstrate in clear cases that the delay is unreasonable as outlined below.

If, however, the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered. [ 77 ] As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time such that the delay is justified.

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.

Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [ 78 ] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance. [ 79 ] It bears reiterating that such determinations fall well within the trial judge’s expertise.

And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity ( R. v. Auclair , 2014 SCC 6 , [2014] 1 S.C.R. 83, at para. 2 ). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.

In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(

b) right (see, e.g., Vassell ). As this Court said in R. v. Rodgerson , 2015 SCC 38 , [2015] 2 S.C.R. 760: Certainly, it is within the Crown’s discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well.

Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete. [para. 45] [ 80 ] Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue.

No further analysis is required. [ 81 ] 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. As discussed, 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 Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay. E. Below the Presumptive Ceiling

[82] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to theactual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) isless 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 thedefence bears the onus to show that the delay is unreasonable.

To do so, the defence must establish two things: (1) it took meaningfulsteps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably shouldhave. Absent these two factors, the s. 11(

b) application must fail. [83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, wefactored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increasedcomplexity of most cases.

(1) Defence Initiative — Meaningful and Sustained Steps [84] To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful,sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial issomething that the court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, andwhat it actually did, to get the case heard as quickly as possible.

Substance matters, not form. [85] To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the recordthat 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 tobe 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 showthat it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crownon timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(

b) application) reasonably andexpeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decisionmade by the defence. The defence is required to act reasonably, not perfectly. [86] Our colleague Cromwell J. criticizes this requirement as diminishing the right to be tried within a reasonable time.We respectfully disagree. First, this Court already considers defence conduct in assessing s. 11(

b) applications. And the level of diligencedisplayed by the accused is relevant in the context of other Charter rights as well, like the s. 10(

b) right to counsel (R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439). Second, as mentioned, the requirement of defence initiative below the ceiling is acorollary to the Crown’s justificatory burden above the ceiling. Third, this requirement reflects the practical reality that a level ofcooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution willhave positive ramifications not only for individual cases but for the entire justice system, thereby enhancing — rather than diminishing— timely justice.

(2) Reasonable Time Requirements of the Case — Time Markedly Exceeded [87] Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements ofthe case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, localconsiderations, and whether the Crown took reasonable steps to expedite the proceedings. [88] The reasonable time requirements of the case will increase proportionally to a case’s 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 thetrial to be conducted once it begins” (pp. 791-92). [89] In considering the reasonable time requirements of the case, trial judges should also employ the knowledge theyhave of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local andsystemic circumstances. [90] Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinelyresponding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as thecase progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded.

As with assessingthe conduct of the defence, trial judges should not hold the Crown to a standard of perfection. [91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter ofprecise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whethereach step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case.

Allthis 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). F. Applying the New Framework to Cases Already in the System [92] When this Court released its decision in Askov, tens of thousands of charges were stayed in Ontario alone as a resultof the abrupt change in the law. Such swift and drastic consequences risk undermining the integrity of the administration of justice. [93] We recognize that this new framework is a departure from the law that was applied to s. 11(

b) applications in thepast. A judicial change in the law is presumed to operate retroactively and apply to past conduct (Canada (Attorney General) v. Hislop,2007 SCC 10, [2007] 1 S.C.R. 429, at para. 84). Slightly more relaxed rules apply to judicial changes to the

interpretation ofconstitutional provisions (para. 88). Transition periods, suspended declarations of invalidity, and purely prospective remedies are part ofthe discretionary remedial framework of our constitutional law (paras. 88-92; R. v. Brydges, (SCC), [1990] 1 S.C.R.190, at pp. 217-18; R. v. Feeney, (SCC), [1997] 2 S.C.R. 117). [94] Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in thesystem, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no

notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, injurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture.

As well, the administration ofjustice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework isintended to ensure that the post-Askov situation is not repeated. [95] The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to twoqualifications. [96] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where thecharges were brought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfiesthe court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. Thisrequires 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. For example, prejudice and the seriousness of theoffence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system,these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if theparties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trialjudge should take this into account. [97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction withsignificant institutional delay problems. Judges

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