The COVID-19 Pandemic And The Right To A Trial Within A Reasonable Time

• Published date: 14 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Coronavirus (COVID-19), Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud, Operational Impacts and Strategy
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Greg Rafter, Loni Da Costa and Laurie A. Goldbach

The COVID-19 pandemic continues to have far-reaching effects on the lives of Canadians. As some provinces tentatively ease restrictions, Canadian court processes have not been immune and have developed substantial jurisprudence that address pandemic related delays.

Calculating delays with a view to upholding an accused's right to trial within a reasonable time must be a flexible and contextual approach that depends on jurisdiction, factors that lead to a delay, and mitigating circumstances addressed by the parties.

The right to a trial within a reasonable time is enshrined in provision 11(b) of the Charter and forms an important foundation that is central to Canada's justice system.¹ The Supreme Court of Canada's landmark decision R v Jordan (2016 SCC 27) addresses 11(b) rights and associated trial delays. Jordan recognizes that "trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial."²

Section 11(b) of the Charter reads:

11. Any person charged with an offence has the right:

[...]

(b) to be tried within a reasonable time;

Jordan clarified the framework for interpreting what length of time is reasonable and created deadlines for matters to be set for trial. Squaring these deadline alongside the extensive effects of the pandemic has not been a universal exercise for Canadian courts.

In this article, we address the differential impact of the pandemic across Canadian jurisdictions with a view to exploring Alberta case law specifically.

1. FRAMEWORK

To determine whether an accused's s. 11(b) rights have been violated, Jordan developed the following general framework:

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in provincial court, and 30 months for cases in superior court or cases tried provincially after a preliminary inquiry. Defence delay does not count towards the presumptive ceiling...Total delay must be calculated and then defence delay deducted.³

Once this ceiling has been exceeded and the delay is unreasonable, the Crown bears the onus to rebut this presumption of unreasonableness. The Crown may overcome the limits imposed by Jordan where circumstances lie outside of the Crown's control and include (i) particularly complex cases;⁴ and (ii) discrete events or circumstances.⁵

The effects of the pandemic are a "discrete exceptional circumstance" under...