Protecting Your Right to be Tried within a Reasonable Time – The (Potential) Obligation to Follow Up
By: Tiffany Phan, Summer Student
It is a Charter right for any person charged with an offence “to be tried within a reasonable time” (Section 11(b) of the Canadian Charter of Rights and Freedoms). For cases tried in the provincial court, “reasonable time” means 18 months from charge to trial end (actual or scheduled); for cases tried in superior court (or in provincial court after a preliminary inquiry), it means 30 months (R v Jordan, 2016 SCC 27 at para 46). These timeframes are called “Jordan ceilings.”
Violation of an individual’s section 11(b) right results in a stay of proceedings, but determining whether someone’s section 11(b) right was violated depends on a calculation of delay outlined in R v Coulter (2016 ONCA 704 at paras 34 – 41):
First, total delay is calculated by measuring the time between when an individual is charged and when the last day of their trial is (anticipated or actual).
Following that, any delay from the defence (either through waiver or through conduct) is subtracted from the total delay to get net delay.
Exceptional circumstances in the form of “discrete events” can be subtracted from the net delay to get remaining delay.
And if the remaining delay is still over the appropriate Jordan ceiling, then the complexity of the case is evaluated to determine whether the delay can still be considered reasonable despite exceeding the ceiling. Particularly complex cases can render unreasonable delay reasonable.
As a case moves along towards trial, there are certain actions each side must take to ensure that key milestones are reached (e.g., disclosure is vetted by the Crown and released to the defendant; the disclosure is reviewed by the defendant; a Crown Pre-trial is scheduled and held; a Judicial Pre-Trial is scheduled and held; trial dates are canvased and scheduled). When these milestones take longer to reach than expected, the delay will usually be attributed to one side. Delay from the Crown is counted towards total delay. Delay from the defence is subtracted from the total delay. This seems fairly straightforward, but a recent case from the Ontario Court of Justice suggests that it may not be as simple as that.
What happens when the defendant emails the Crown to set up a Crown Pre-trial and the Crown’s administrative assistant accidentally deletes that email? In R v Greenidge (2021 ONCJ 57), this is exactly what happened. Due to an administrative error on the Crown’s side, a delay of 27 days arose (Greenidge at para 9). Despite the error coming from the Crown’s side, the judge subtracted 20 days from the remaining delay due to the “discrete event” of “human error” on the part of the Crown’s administrative assistant (Greenidge at paras 45 – 46). You may wonder: “Why is this? Why did any of the delay caused by the administrative error result in a subtraction from the remaining delay?” In response to this, Justice Monahan wrote in his reasons: “Obviously, the email should not have been deleted, but defence counsel should have followed up earlier on the point” because “when a person does not respond to an email after a week or so, there is a reasonable prospect that the email has been overlooked or some error has been made” (Greenidge at para 46).
Though R v Greenidge is not an appellate decision, it serves as a caution of what could happen if you fail to follow up on emails to the Crown that warrant a reply. When it comes to your section 11(b) right, it is better to be safe than sorry and remember to follow up.