Droit à un procès dans un délai raisonnable

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Principes généraux

The right to a trial within a reasonable time is guaranteed by s. 7 and 11(b) of the Charter.

Charter Right to Reasonable Time to Trial

Section 11(b) of the Canadian Charter entitles any "person charged with an offence ... the right ... to be tried within a reasonable time". Where there is a breach of this right, the available remedy to a court is a stay of proceedings.

History

In 2016, the Supreme Court of Canada re-framed the analysis for s. 11(b) by setting presumptive ceilings of 18 and 30 months depending on defence election. The new "Jordan" analysis removed from consideration the prejudice to the accused and the seriousness of the offence.

Purpose

The objectives of both s. 7 and 11(b) of the Charter include ensuring "the fair and timely operation of the criminal justice system." Timeliness is "one of the of the hallmarks of a free and democratic society."

The right protects both individual rights and societal rights.

Section 11(b) protects three individual rights:

• the accused's right to security of person by minimizing the anxiety and stigma of criminal proceedings;
• the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and
• the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

It also protects societal rights:

• the public's interest in having our laws enforced by having those who break the law tried quickly;
• the public's interest in having those accused of crime dealt with fairly; and

Timely trials also affect societal interests by benefiting victims and witnesses, and instills public confidence in the administration of justice.

Jordan Framework

The new framework is designed in part to "do away with prejudice as an express factor in assessing delay." It was considered "confusing, hard to prove, and highly subjective." It does not, however, ignore the existence of prejudice, it simply creates a legal presumption of prejudice once the ceiling has been breached.

The reason also for the change was to address the "culture of complacency" among Crown, defence and courts that have developed in modern years. This culture is exhibited in delay causing conduct, including: Jordan, supra, au para 40

• unnecessary procedures;
• unnecessary adjournments;
• inefficient practices by all parties; and
• inadequate institutional resources.

The message from Jordan is that “all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion.”

Judges are charged with curtailing delay and changing courtroom culture. Practices causing delay that were tolerated are no longer permitted. This can include denying defence adjournments where it could result in unacceptably long delay despite it being time attributable to defence.

Presumptive Ceiling

Presumptive Breach

There will be a presumptive breach of s. 11(b) of the Charter where the delay between the date of laying of charges and the conclusion of the trial is greater than the presumptive ceiling.

Standard Duration

The duration of the presumptive ceiling will depend on the level of court in which the matter will be heard. The "Jordan" framework sets a presumptive acceptable period of delay between charge and conclusion of trial is 18 months for provincial court trials and 30 months for superior court trial.

The period is calculated from the time of charging until the actual or anticipated end of trial, minus defence delays. Where the ceiling is exceeded there is a presumption of unreasonablness which will amount to a breach of s. 11(b) of the Charter.

Ceiling Where there is a Direct Indictment

The 30 month ceiling is not affected by the Crown decision to circumvent a preliminary inquiry through the use of a direct indictment under s. 577 of the Code.

This fixed time is not necessarily "free time" for the Crown as it will still be a factor to consider in a non-presumptive challenge.

It has been suggested that Crown should seriously consider preferring a direct indictment in order to engage in the longer ceiling duration.

Ceiling Where Crown Consents to Re-Election

It is unsettled what duration applies where the Crown consents to a re-election. One approach says that on re-election shortly after the matter commences in Supreme Court will mean an 18 month ceiling. A second approach says that the 30 month ceiling will continue despite a re-election.

Ceiling Where the Matter is Sent for Re-trial

There is a division in cases as to whether the normal ceilings apply. There is of course support for the ceiling "clock" resetting after the matter is sent back for trial.

Another approach says the 18/30 month presumptive ceiling does not apply when a matter is returned for re-trial after a successful appeal as all re-trial matters should be prioritized over regular matters. Few courts have set a number. With only some suggestion of between 5 to 12 months.

There is only a little support for the view that the ceilings should apply only once regardless of the number of re-trials.

Ceiling Where the Accused is in Custody

The dominant view is that the ceiling applies whether or not the accused is in custody.

Rebutting the Presumptive Ceiling

The presumption can be rebutted where the Crown can show exceptional circumstances.

Ceiling for Youth Accused

Prior to Jordan, it was well understood that there are no special rights to speedy trial different from those granted to adult accused. However, it has been made clear that there is an expectation that youth court matters will reach a conclusion more quickly than adult ones, and the analysis should be different. Some pre-Jordan courts have recommended guidelines within 5 or 6 months of charge or up to 15 months from charge.

The shorter time to trial is necessary so that:

1. the young person can better appreciate the connection between behaviour and consequences;
2. the distorted perception of time by a young person compared to adults;
3. the need to deal with dispositions speedily while youth is still in their formative years.

There is some suggestion that for youth charged under the Youth Criminal Justice Act, the presumptive ceiling should be set at 12 months , 15 months , and 16 months.

Others have suggested that there should be no change to the presumptive ceiling, rather can be dealt with an a non-presumptive breach.

Obligations on the Crown, Defence, and Judges

All parties, including the courts, have a "responsibility to ensure that criminal proceedings are carried out in a manner ... consistent with" the right under s. 11(d).

Crown Role

The Crown has an obligation to bring an accused to trial and is also obligated to ensure that "the trial proceedings, once engaged, are not unduly delayed."

It is also observed that "each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts."

The Crown duties include:

• "making reasonable and responsible decisions regarding who to prosecute"
• "making reasonable and responsible decisions" regarding choices of offences to prosecute
• "delivering on their disclosure obligations promptly with the cooperation of police,"
• "creating plans for complex prosecutions";
• use court time efficiently;
• use discretion to resolve cases;
• making "reasonable admissions";
• "streamlining the evidence";
• "anticipating issues that need to be resolved in advance."

Where there is a re-trial the Crown has an obligation to expedite the matter to trial. Expediting the matter can include agreeding to non-consecutive trial dates even where it is "suboptimal."

Defence Counsel Role

The defence counsel's duties include:

• "actively advancing their clients’ right to a trial within a reasonable time"
• "collaborating with Crown counsel when appropriate"
• "using court time efficiently"
• making "reasonable admissions"
• "streamlining the evidence"
• "anticipating issues that need to be resolved in advance."

Judge Role

Judges role include "changing courtroom culture." This would include denying adjournments even where it may be defence-attributed delay.

Judges should be active to encourage parties to improve efficiencies by means including recommending proceeding "on a documentary record alone."

Screening Applications

Judges should screen application by requiring counsel to prove the merit of an application by written summary of the evidence to show that it has a "reasonable prospect of success". Otherwise the application should be dismissed.

Start and End of Jordan Ceiling

Jordan Delay Not Same as Total Delay

The Jordan rule does not represent a departure from the principle that "period of delay to be considered ... is not assumed equivalent to total delay."

While there is a fixed "presumptive ceiling", there may still be compelling "case-specific factors" are still relevant considerations to reasonableness of the delay.

Different Start Times

There are several views on when the "clock" starts for the calculation of delay. The dominant line of cases suggests that the calculation starts at the time of the laying of charges. Many cases rely on the pre-Jordan approach which took the time to start at the laying of charges. The second line of cases suggests that the time begins at the arrest and becoming aware of charges. The rationale in the second line of cases relies on the notion that the police should not be able to seek protection behind their delays and errors in laying a charge reasonably promptly as required under s. 505. There is a variation on the second line of cases which suggests that the time should be at the time the charges are sworn or when they should have been sworn.

End of Clock

Under the presumptive Jordan ceilings, the time period ends once the deliberations begin. The rights under s. 11(b) continues throughout the proceedings, but simply not under the Jordan timetable.

Under the pre-Jordan framework, the delay clock ended only after sentencing.

Effect of Crown Stay

A Crown of proceedings will stop the Jordan clock absent of element of "illegitimacy or manipulation."

Effect of Guilty Plea

The right against delay is extinguished upon a guilty plea as it constitutes a waiver of trial rights. The waiver however does not affect the right to speedy sentencing.

Jordan Analytical Framework

Three Step Framework

The first step requires the court to "calculat[e] the total delay from the charge to the actual or anticipated end of trial." The second step is to subtract the delay attributable to the defence. The "net delay" is then compared to the presumptive ceilings. The third step will depend on whether the net delay is above or below the ceiling.

Delay Under the Presumptive Ceiling

Where the net delay is below the presumptive ceiling the matter can still be stayed for delay.

The onus is upon the accused to show that the net delay that is under the presumptive ceiling was "unreasonable." This requires that the accused show 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.

Delay Over the Presumptive Ceiling

Where the net delay exceeds the presumptive ceiling, the burden is upon the Crown to establish the "presence of exceptional circumstances" otherwise the proceedings must be stayed.

Recommended Approach

A recommended approach to Jordan analysis involves the following:

1. Calculate the total time between charge to actual or anticipated conclusion of trial
2. subtract from the total time, the defence delay, resulting in the "net delay"
3. compare the net delay to the presumptive ceiling
4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances . If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases .
5. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached.
6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases").

Expectation

One cannot usually take into account events occurring before the charges were laid.

Anticipatory Delay

Anticipatory delay is generally not considered.

Replacement Informations

Where a replacement information is laid charging effectively the same offence as an initial information, the time is still calculated from the time of the first information.

Gap Time

Under the pre-Jordan framework, s. 11(b) does not apply to delays arising from an appeal from conviction (ie. appellate delay).

The time between the discharge of an information by a preliminary inquiry judge and the re-commencement of a charge by a direct indictment does not count as delay time.

Calculating

Where there is cascading delay or rippling-effect resulting from a single small delay can be accounted for in the attribution analysis.

Defence Delay

• Defence Delay Under Jordan Framework

Extraordinary Circumstances

• Extraordinary Circumstances in Jordan Delay Analysis

Breach Within the Presumptive Ceiling

• Breach Within the Presumptive Ceiling

Unreasonable Delay in Verdict

It has been suggested that there should be a 5 month ceiling between conviction and sentence.

The reasonableness of the delay in rendering verdict must account for the realities that there are other commitments. The consideration should regard to their workload, different approaches to reasoning, and realities of daily lives.

While there are significant limitations of judicial resources, judges “must work within these institutional restrictions and manage their workloads as efficiently as possible.”

A dangerous offender application is considered an "exceptional circumstance" for the purpose of a delay ceiling.

Application to Pre-Jordan Cases / Transitional Exception

The "Jordan" framework came into effect on July 8, 2016. It should be applied "contextually and flexibly for cases currently in the system."

Where the administrative guidelines are exceeded it is only a factor to consider and does not automatically compel a breach of s. 11(b) of the Charter.

Courts cannot ignore the delay jurisprudence pre-existing Jordan. Jordan was a revisiting of the framework.

The new framework does not apply strictly to traditional cases since "the analysis must be contextually sensitive to the law and the legal culture that exists at the relevant time."

Burden

The burden is upon the Crown to show that the transitional exception applies.

Standard

The Crown must show that the net time is justifiable on the basis of "reasonable reliance on the law as it previously existed." This includes reliance on the acceptability of the speed of the case under the old rules in light of the old factors such as seriousness of the offence and prejudice to the accused.

Factors that are considered include:

1. the complexity of the case
2. the period of delay in excess of the Morin guidelines
3. the Crown's response to institutional delays
4. the defence efforts to move the case along
5. the prejudice to the accused.

Like under the Morin framework, the existence of prejudice may be inferred by the passage of time.

The seriousness of the case also continues to be a factor.

Rarely will the transitional exception be permitted where the case would have failed under Morin.

Remedy on Breach

Where a delay is unreasonable under s. 11(b) of the Charter, the only available remedy is a stay of proceedings.

The standard for a stay in only the "clearest of cases" does not apply to s. 11(b) as a stay is the only available remedy.

Where the breach is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.

Postponement of a sentencing hearing can in some circumstances result in mitigation of sentence.

Procedure

Judge Cannot Raise Delay

The judge should generally not raise a Charter delay issue on behalf of the accused.

Evidence

The applicant must establish an evidentiary foundation for their application.

Often counsel can draft an agreed statement of fact on the history of proceedings.

The applicant should also file a transcript of the previous proceedings.

Notice

The applicant must give sufficient notice to the Crown to allow them to respond with evidence.

Timing

The trial process should generally be permitted to "run its carefully laid course" before a court should engage in an application under s. 11(b) of the Charter to stay proceedings.

A failure to bring an application under s. 11(b) before or at trial will usually be fatal to the applicant.

Appeals from Jordan Rulings

The standard of review of the analysis of the delay factors and allocation of time periods is reviewable on a standard of correctness.

Allocation of Time

The characterization and allocation of time of periods of delay are reviewable on the standard of correctness.

Concessions on Attribution

The appellate court is not bound by "erroneous concessions."

Findings of Fact

Findings of fact underlying the delay however are reviewed on a standard of palpable and overriding error.

Decision to Stay Owed Deference

The ultimate decision to stay a proceeding as a remedy under s.24(1) of the Charter on finding of a breach is owed deference. However, it is a question of law reviewable on a standard of correctness.

Appellate Consideration ab initio

Appellate courts should reluctant to make findings of s. 11(b) where the trial judge had not considered it on the merits.

Delay Outside of Jordan Framework

The temporal scope of 11(b)du Charte canadienne des droits et libertés includes the verdict deliberation time, which is not part of the Jordan framework.

Sentencing Delay

There has been proposed a separate ceiling for sentencing as being set at 5 months. The suggested remedy for breach of this ceiling is not a stay of proceedings but rather sentence mitigation.

The 5 month ceiling will not be counted as including time necessary to litigate a dangerous offender application regardless of its outcome.

Morin Framework (Pre-Jordan, 2016 SCC 27)

• Morin Framework (Pre-Jordan 2016)

Voir également

• Sentencing Factors Relating to the Criminal Proceedings#Delay
• Charter Delay (Cases)
• Charter Applications
• Detention Order for Things Seized Under Section 489 or 487.11 - detention may be extended under s. 490(3) where delays occur without charge
• Alberta Court of Queen’s Bench Policy on Inquiry of Verdict Delay