Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation examines the continuing impact of COVID-19 on the right of accused persons to be tried within a reasonable time. The case involved an accused who argued that pandemic-related delays contributed to a breach of section 11(b) of the Charter. The trial judge treated 60 days of system-wide COVID-19 backlog as an exceptional circumstance and deducted that period under the Jordan framework, leaving the net delay below the applicable 18-month ceiling. The Ontario Court of Appeal upheld that result.
Key Points Discussed
– COVID-19 created widespread disruption and backlogs throughout Canada’s court system
– Pandemic-related delay has been treated as an exceptional circumstance in applying the Jordan framework
– The case raised questions about how long the effects of the pandemic can continue to justify delay
– Jordan requires the Crown to take reasonable available steps to address problems contributing to delay
– The issue is not simply whether the original disruption was unavoidable, but whether its continuing consequences could reasonably have been mitigated
– The case also raised broader questions about how courts should respond to future emergencies that disrupt the justice system
Why This Case Matters
Section 11(b) of the Charter protects the right to be tried within a reasonable time. Under Jordan, provincial court cases are generally subject to an 18-month presumptive ceiling, while superior court cases and provincial court cases following a preliminary inquiry are subject to a 30-month ceiling. Delay above those limits can be justified by exceptional circumstances, but the Supreme Court has also said that the Crown and justice system must take reasonable steps to mitigate delay caused by discrete exceptional events.
COVID-19 presented an extraordinary disruption. The more difficult question now is how courts should treat the cascading effects of that disruption years later, particularly where governments and court systems have had significant time to address resulting backlogs.
Missed Opportunity for a National Standard
The Supreme Court of Canada could have clarified:
– How long pandemic-related delay can qualify as an exceptional circumstance
– When the ongoing consequences of an emergency become institutional delay
– What steps governments and courts are reasonably expected to take to mitigate backlogs
– How the Jordan framework should apply to cascading delays caused by extraordinary events
– How courts should approach similar disruptions during future emergencies
Need for Clarity and Accountability
The Supreme Court identified a “culture of complacency towards delay” in Cody, building on the framework established in Jordan. Jordan also makes clear that it is not enough to identify a past difficulty when delay exceeds the ceiling. Reasonable available steps must be taken to address the problem, and delay that could reasonably have been mitigated may not be deductible as an exceptional circumstance.
The unresolved question is where that principle applies when an extraordinary event creates consequences that persist for years. Clear guidance could help courts distinguish genuinely unavoidable delay from systemic delay that governments and justice systems had a reasonable opportunity to address.
Topics Covered
– Pandemic-related court delays
– Section 11(b) Charter rights
– Right to trial within a reasonable time
– R. v. Jordan
– Exceptional circumstances
– Institutional delay