Presumptively Unreasonable: Occasioning Delay Through Direct Indictments

Following the release of the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, an interesting bifurcation in the law has taken hold in Alberta. In that decision, Canada’s top court set clear ceilings over which a delay is considered presumptively unreasonable. Those presumptive ceilings are:

• 18 months for cases tried in provincial court,
• 30 months for cases tried in the superior court, and
• 30 months for cases tried in provincial court after a preliminary inquiry¹.

Where the delay between the date of charge and the anticipated end of trial exceeds the applicable ceiling, a stay of proceedings must issue unless the Crown can justify the delay under the rubric of “exceptional circumstances”. Notwithstanding the Supreme Court’s desire to be clear, there remains ambiguity as to which ceiling applies to a case tried in superior court, but without a preliminary inquiry.

This situation can occur in one of two ways. First, in many cases the accused has an election as to his or her mode of trial and level of court. An accused person can elect to be tried in superior court without a preliminary inquiry². Second, pursuant to section 577 of the Criminal Code, the Attorney General can prefer an indictment to force an accused straight to trial in superior court, notwithstanding the accused’s election to the contrary.

On a facial reading of Jordan, the 30-month presumptive ceiling applies to both situations. Giving effect to the 30-month ceiling where the Attorney General has preferred an indictment has found judicial support in three recent cases in Alberta: R. v. Jones, 2016 ABQB 691; R. v. Cabrera, 2016 ABQB 707; R. v. Wilson, 2017 ABQB 68³. However, the question remains whether this interpretation accords with the substantive rights guaranteed in section 11(b) of the Charter, or with the thrust of the majority decision in Jordan itself.

Notably, the Court of Queen’s Bench advanced a contrary interpretation in R. v. Amer, 2016 ABQB 689. In the context of a bail application, the judge took into consideration the fact that the Attorney General had preferred an indictment and the delay was anticipated to be 30-months. In Justice Gates’ view, this situation “[appeared] to contravene the 18 month guidelines set out in Jordan for matters that involved a one stage trial process."⁴

If the line of authority espoused in Jones, Cabrera and Wilson are correct, the level of court is determinative without reference to the procedural history of the file. Any matter tried in provincial court should be subject to an 18-month ceiling. Clearly that is not so.

The majority in Jordan was explicit that two-stage provincial court trials (i.e. those occurring after a preliminary inquiry) are subject to a 30-month ceiling. In other words, the presumptive ceilings are informed by the procedural history of the file, not which clerk’s office received the charging document.

On this basis, a matter tried in superior court without a preliminary inquiry ought to be subject to the same 18-month ceiling as a matter proceeding directly to trial in provincial court. To hold otherwise seemingly favours form over substance.

Consider how a reasonable member of the public might look upon the following scenario. An accused person is charged with manslaughter in January. Over the course of a few months the disclosure process is complete and the accused makes his election. A 10-day trial is set for December of the following year.

If the accused elected to be tried in provincial court the nearly 24-month delay from charge to trial would be presumptively unreasonable, and the accused’s right to be tried in reasonable time would be engaged. However, if the accused had elected to be tried in superior court without a preliminary inquiry, that same delay would not be unreasonable and the accused’s s. 11(b) right would not be engaged. This is a legal absurdity given the identical procedural history.

A reasonable member of the public - whose confidence in the fair administration of justice the system strives to maintain - could not be faulted for being confused at these irreconcilable results. This cannot be what the Supreme Court intended.

Rather, the Supreme Court set out a logical framework. Where an accused person engages a one-stage trial process the presumptive ceiling is 18-months. Where an accused person engages a two-stage trial process (i.e. trial after a preliminary inquiry) the presumptive ceiling increases to account for a second substantive proceeding. The rationale for allowing more time is obvious.

This reading of the majority judgment in Jordan eliminates the arbitrariness of the foregoing example. Further, while the majority refers to “local conditions” on several occasions, this is a reference to jurisdictions with traditionally problematic levels of institutional delay. There is no reference anywhere in the majority judgment to higher levels of ubiquitous delay in superior courts relative to provincial courts.

Moreover, giving effect to a 30-month ceiling for a single stage trial process confers on the Crown a judicially sanctioned and unreviewable reset button on delay. Consider a file where the accused elected to be tried in provincial court but where the Crown mismanaged the prosecution. To prefer an indictment on the cusp of the 18-month presumptive ceiling would give the Crown a further 12 months to organize its affairs.

The ability to prosecute in this manner is irreconcilable with section11(b) and the Crown’s duty in respect of the same. This type of release valve is devoid of fairness and should not be permitted by the courts.

A counter argument is that a person may elect to have a preliminary inquiry and then either waive it or consent to committal, thereby moving straight from charge to trial. On the surface, this would invite the 18-month ceiling. In this circumstance, through his own manipulation of the procedure, it may seem an accused person can line up for a remedy that he is not rightfully entitled to.

However, this argument neglects a fundamental premise of Jordan: the defence cannot benefit from its own delay-causing conduct⁵. Trial judges can be trusted to see through such blatant and frivolous tactics. It is hard to imagine a trial court giving effect to such a submission from defence counsel.

Giving the Crown a further year to complete a prosecution where the matter is headed straight to trial seems antithetical to the substantive rights enshrined in section 11(b) of the Charter. It also undermines the Supreme Court’s desire to eradicate the culture of complacency in the criminal justice system.

Historically, direct indictments were employed sparingly. Post Jordan, Attorney Generals are on record contemplating an increased use of this tool. Driving speed and efficiency in the system will only be achieved by subjecting those cases to the 18-month ceiling. Nothing is accomplished otherwise.

Forcing the Crown to move the matter forward expeditiously best serves the interests of justice. Over the passage of time memories fade, witnesses are not available, and evidence can be lost or destroyed. Urgency, not complacency, is what the public should expect of the prosecution.

Given the bifurcation in the law in Alberta, it is likely the Court of Appeal will be asked to weigh-in on the correct interpretation of Jordan. Indeed, it may be that the Supreme Court is eventually asked to clarify this critically important point.

¹Jordan at para. 49

² In many cases the accused will have an election as to his or her mode of trial (Judge Alone or Judge and Jury), and the level of court (either provincial or superior court). The exceptions are those absolute jurisdiction offences that must be tried in provincial court pursuant to s. 553 of the CCC, and exclusive jurisdiction offences that must be tried in superior court pursuant to s. 469 of the CCC.

³ R. v. Jones, 2016 ABQB 691, R. v. Cabrera, 2016 ABQB 707, R. v. Wilson, 2017 ABQB 68

⁴ R. v. Amer, 2016 ABQB 689 at para. 51

⁵ Jordan at para. 60