The Right to be Re-Tried in a Reasonable Time: SCC Grants Leave in R c J.F.
The Supreme Court of Canada (“SCC” or “the Court”) will continue to develop jurisprudence surrounding the right to be tried within a reasonable time, protected under s. 11(b) of the Canadian Charter of Rights and Freedoms [the Charter] when it hears R c J.F. (SCC 39267). The case, which was granted leave to appeal to the SCC in February 2021, asks how trial delays should be assessed when there is an order for a new trial. In R c J.F., 2020 QCCA 666 [J.F.], the Québec Court of Appeal (“QCCA”) reasoned that delays incurred over multiple trials cannot be combined, but rather must be individually calculated and assessed, with the first trial using the framework set out in R v Jordan, 2016 SCC 27 [Jordan], and the second by a different, albeit undefined, analytical framework (J.F., para 90).
In Jordan, the Court set ceilings at which the amount of time between the charge to the conclusion of a trial is presumptively unreasonable and violates an accused’s s. 11(b) Charter right. These thresholds were developed in consideration of a number of key principles, including (but not limited to): the consideration for the accused’s liberty interests, the accused’s right to a fair trial, the interests of victims and their families, and the importance of maintaining public confidence in the administration of justice (Jordan, paras 20–25). The ceilings were set by the SCC at 18-months for a trial in a provincial court and 30-months for a superior court trial. The Court, however, did not explain whether the same ceilings, or different ones, should be applied to retrials.
The SCC’s decision to grant leave to appeal in J.F. will, in the words of the QCCA, “add a new page to the history of judicial interpretation of the principles underlying the application of s. 11(b)…in light of the implementation of Jordan,” as it will provide an opportunity to clarify how delays are assessed in the context of retrials (J.F., para 6). This is a growing topic of discussion among criminal cases dealing with s. 11(b) issues and delays incurred as a result of an order for a new trial. The QCCA’s decision in J.F. provides a clear path for the SCC to determine and implement a concrete and justifiable process by which delays in retrials are assessed and considered by the courts.
Background & Trial Decision
In 2010, the accused was charged with sexual misconduct and indicted for several counts of sexual offences in 2011 (J.F., paras 10-11). In December 2013, his case was brought to trial in the Court of Québec, but it was postponed to October 2014 due to a complex voir dire on the admissibility of the accused’s video statements to the police (J.F., paras 14-15). The reasons on the voir dire were released in May 2015, with the trial subsequently resuming until the judge reserved judgment in May 2016 (J.F., para 16). In February 2017, the Québec Court released its reasons, ultimately acquitting the accused, leading to a total time between indictment and the verdict of 2,194 days (J.F., para 18). During the deliberation period, the SCC rendered its decision in Jordan, dramatically altering the framework for determining the reasonableness of trial delays.
On appeal in 2018, the QCCA ordered a new trial which was intended to take place in May 2019 over the course of 10 days (J.F., paras 19-20). However, the accused moved for a stay of proceedings due to unreasonable delay, and in February 2019, argued that the delay violated his right to be tried within a reasonable time as protected under s. 11(b) of the Charter (J.F., paras 21, 23).
At the Court of Québec (“QCCQ”) (see R c J.F., 2019 QCCQ 1236 [J.F. QCCQ]), it was found that the accused’s s. 11(b) right had indeed been violated, and the court ordered a stay of proceedings (J.F., para 31). However, the trial judge considered the delays incurred during the first and second trials, taking a “global and contextual assessment of the delays” (J.F. QCCQ, para 73). The QCCQ’s decision ultimately concluded that the net total of delays in the trials was 72 months and 2 days (J.F., para 34). The Crown subsequently appealed.
The QCCA affirmed that the accused’s right to tried within a reasonable time had been violated and upheld the stay of proceedings, albeit for different reasons from the QCCQ. Writing for a unanimous court, Justice Levesque rejected the trial judge’s approach to combine the delays of the two trials and instead put forward a new, two-step approach for assessing delays in multiple trials and determining whether there is a Charter violation.
The QCCA accepted the Crown’s argument that the “delays for the second trial should not be added to the delays for the first one but must instead be reset to zero as of the order for a new trial” (J.F., para 59). In particular, Justice Levesque reasoned that combining the delays of the initial trial and retrial would make it “practically impossible for a first and second trial to conclude within the one and only ceiling” and would risk future orders for retrials from appellate courts to “become futile or illusory” (J.F., para 83).
In canvassing other possible options for how the Jordan framework ought to be applied to a second trial, the QCCA rejected approaches that doubled the presumptive ceilings (i.e., 18 to 36 months, 30 to 60 months), worrying this could not only “increase the accused’s burden to demonstrate a violation” of their s. 11(b) right (J.F., para 86), but also lend “a certain legitimacy to a culture of complacency during the hearing of one of the trials” (J.F., para 88). The QCCA clearly worried that combining the delays occurring over two trials would counteract the SCC’s policy objective in Jordan to ensure an efficient criminal justice system (Jordan, para 3).
The QCCA ultimately put forward a novel, two-step approach for assessing delays in cases where more than one trial has been ordered. First, Justice Levesque explained the delays in the initial trial must be assessed under the Jordan framework. If the delay is reasonable—i.e., the delay is below the applicable presumptive ceiling—then the second trial is analyzed “according to its own analytical framework, assuming, however, that the order for a new trial is the starting point for computing the delay” (J.F., para 90). In the case at bar, the QCCA found that the first trial was unreasonable as it had a net delay of 62 months, thus exceeding the 30-month Jordan ceiling, and therefore deemed it unnecessary to undertake an analysis of the second trial’s delays (J.F., paras 91, 96). As a result, Justice Levesque did not provide any suggestion as to what kind of analysis should be applied to delays incurred in a subsequent trial (J.F., para 98).
The need for further explication and guidance on how the Jordan framework is meant to be applied in the context of a retrial has been highlighted by a number of Canadian courts since Jordan’s release in 2016. In R v Crant, 2018 ONSC 1479 [Crant], Justice Nakatsuru of the Ontario Superior Court of Justice explicitly questioned the appropriate presumptive ceiling that ought to be applied in a second trial. Although he did not propose a particular approach, he stated:
…it would not be right to simply double the 18-month presumptive ceiling. This would not recognize the fact that most of the intake and preparation requirements for trial would already have been completed. It would also not reflect the spirit of Jordan. It would fail to encourage the parties and the system to properly expedite a retrial. Thus, any presumptive ceilings for a retrial should take these factors into account and be set at a significantly lower threshold. [Crant, para 19]
This position was taken a step further by the Ontario Court of Appeal in R v MacIsaac, 2018 ONCA 650 [MacIsaac], which stated in obiter that “re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling.” (MacIsaac, para 27). Clearly, courts have called for an altered approach as to how the Jordan framework is applied to subsequent trials or re-trials in a matter.
Other courts have called for an entirely new way of assessing delays in retrials. For instance, in R v JEV, 2019 ABCA 359 [JEV], a majority of the Alberta Court of Appeal (“ABCA”) proposed a contextual approach, whereby the delay clock is reset to zero once a retrial is ordered, but rather than imposing a ceiling as in the Jordan framework, the delay’s “reasonableness [is] assessed in accordance with the principles in Jordan,” along with a “presumptive expectation that the retrial will be conducted on a reasonably expedited basis and ordinarily sooner than the first trial” (JEV, para 50). This approach, the majority contended, would provide more flexibility to trial courts in assessing whether the accused’s s. 11(b) right had been violated in the retrial setting.
This discourse among the Canadian courts in the wake of Jordan clearly shows that the status quo—i.e., the Jordan ceilings—simply cannot stand without modification in assessing delays for a retrial. As the majority of the SCC noted in Jordan, the imposition of ceilings was intended to “reflect[…] the realities we currently face” in the Canadian criminal justice system (Jordan, para 57). Retrials, as noted by Justice Nakatsuru and the ABCA in the cases above, present a whole different slate of realities and considerations in comparison to those of an initial trial, including the fact that much of the trial preparation has been completed and that the matter has already gone through a lengthy process of both a trial and at least one appeal. The principles articulated by the Court in Jordan become even more critical to uphold and protect, especially with respect to the accused’s own security and liberty interests, as well as maintaining the public’s overall confidence in the justice system.
J.F. undoubtedly presents a meaningful opportunity for the SCC to determine the appropriate approach to how delays should be assessed or deemed (un)reasonable in the case of retrials and provide clear guidance on how the approach ought to operate in practice. The Court has shown in recent Jordan-focused case law that it is committed to the framework adopted in the 2016 decision (see R v Thanabalasingham, 2020 SCC 18). It will be interesting to see how the Court will develop the Jordan framework as it applies to varying contexts.
Original photo can be found here.