In the current coronavirus-induced quagmire that is the current courts system, anyone involved in legal proceedings will be wondering about court delays. An issue pertinent to this defence delay and how it is handled by the R. v. Jordan framework.
While courts have clamped down in recent years on overly-lengthy trials, defendants in criminal trials should not expect too much leeway when their choice of defence counsel causes a delay.
R. v. Jordan and defence delays
In 2016, the Supreme Court of Canada decision R. v. Jordan created a new framework for determining whether a defendant has been tried within a reasonable time. It sought to protect Canadians’ Charter right under s. 11(b).
Among the sweeping changes it implemented was the presumptive ceiling of 18 months from the charge to the end of the trial in provincial. Any trial that exceeded that limit is presumed to be an unreasonable delay and, therefore, in violation of the Charter. There are some very big exceptions which we will get to shortly. The courts automatically stay charges in a trial that exceeds 18 months, again with some very big exceptions.
What constitutes a delay?
As well as setting an 18-month ceiling, Jordan also implemented some provisos to prevent the potential for abuse. One of the conditions was that only delays caused by the Crown count towards the presumptive ceiling. So any defence delay would not count under Jordan.
The only exceptions Jordan allows if a trial does exceeds 18 months are: if a discrete event, something unexpected and unavoidable, caused a delay, or if a case was particularly complex.
Choice of counsel
A legal issue that potentially comes into conflict with Jordan is your right to choose who defends you in court. While a defendant is entitled to choice of counsel, this must not be used in a way to manipulate the system. Equally, the Jordan framework must not impinge or influence an accused’s choice of defence counsel.
A recent case that brought attention to this potential conflict. Peter Balogh was charged with six counts of tax evasion. After he successfully applied for a stay of proceedings using a Jordan argument in Provincial Court, the stay was overturned at the BC Supreme Court. He appealed to the BC Court of Appeal, arguing that the Supreme Court judge mischaracterised the unavailability of his defence counsel as a defence delay.
Mr. Balogh was originally charged in 2012 and his trial at Provincial Court had been adjourned three times. After his original counsel withdrew, he applied successfully for an adjournment so he could obtain new counsel. The new counsel adjourned the trial twice due to his being double-booked or unavailable. A third adjournment was caused by the trial judge being unavailable.
Spirit of Jordan
While Mr. Balogh argued the BC Supreme Court has mischaracterised some of the delays as defence delays and they, therefore, should have counted towards the 18-month ceiling, the BC Court of Appeal judge did not see it this way.
The appeal court judge said Mr. Balogh’s contention was, “contrary to the spirit of Jordan because the case calls on all participants in the justice system to work in concert to achieve speedier trials.”
The judge added: “The defence is not to be allowed to benefit from its own delay‑causing conduct, and the Crown will not be held accountable for circumstances that cause the ceiling to be breached that are genuinely outside of its control.”
While it was Mr. Balogh’s choice of counsel that caused the delay, the judge was careful to stipulate that this did not impinge on his right to trial in a reasonable time. The judge said: “Mr. Balogh was entitled to retain the counsel of his choice, but he cannot use his counsel’s unavailability to argue that the state has breached his right to be tried within a reasonable time.”
If you have a question about a delay to your trial call us now on 604-685-8889.