• Lewis Waring

The Right to be Tried Within a Reasonable Time – Prachi Sanghavi

Under section 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”), “any person charged with an offence has the right to be tried within a reasonable time". This right was created for the benefit of both societies overall and the individual charged. The right aims to ensure that members of society see justice carried out in a timely manner. For example, those impacted directly or indirectly by the accused should receive prompt remediation. From the perspective of the accused, they will often have to patiently “sit in jail” (this wait-time seems especially unfair if the individual is innocent). And in the grand scheme, the accused waiting in jail for an extended period of time impacts tax-funded resources that should be handled more efficiently.

In cases where an individual is not tried within a reasonable time, there may be a “stay of proceedings” and “there won’t be a verdict of guilty or not guilty”. The current authority on the time period that consists of a reasonable time was decided by the Supreme Court of Canada (“the Court”) in R v Jordan (“Jordan”). According to the appeal case in Jordan, the “presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court”. Except under cases of extenuating circumstances, any time beyond this predetermined period is considered unreasonable and can result in a “stay of proceedings". Jordan also addressed the fate of cases being decided in the timeline of the release of its decision (i.e. transitional cases).

R v Thanabalasingham

R v Thanabalasingham (“Thanabalasingham”) first came to trial before the decision from Jordan. However, the facts of Thanabalasingham appear to be the exact scenario Jordan aimed to target. In 2012, Mr. Thanabalasingham “was charged with the second-degree murder of his spouse". This was later pursued as first-degree murder but, because of “systemic delay,” the preliminary hearing lasted well over a year. The trial was scheduled for June 2015, then postponed to February 2018, and lastly rescheduled to April 2017 (after Jordan was released).

At this point, “Mr. Thanabalasingham brought a motion pursuant to s. 11(b) of the Charter, alleging that his right to be tried within a reasonable time had been violated". Both the Quebec Superior Court and the Quebec Court of Appeal ruled for a stay of proceedings and when the case came before the Court, the Crown argued for the minority argument (that of Gagnon JA) from the Quebec Court of Appeal. Specifically, the argument was that the net delay was actually less than the 30-month presumptive ceiling because the preliminary hearing was a discrete event and “its length was… outside the Crown’s control in the sense contemplated by Jordan". The Court dismissed this, stating that “any delay resulting from their prosecutorial discretion must conform to the accused's s. 11(b) right". Furthermore, they concluded that “had Gagnon J.A. properly accounted for the delay arising from the preliminary hearing, he would have arrived at a net delay of 45 months — well beyond the 30-month presumptive ceiling"; because of this, the Court argued that they did not need to speak to “the issue of defence delay".

Next, the Court looked at whether Thanabalasingham may fall under the exceptional circumstance laid out in Jordan regarding cases during the “transitional” period. On this matter, the Court held that Thanabalasingham did not fall under such extenuating circumstances. They acknowledge error on the part of the trial judge because of a misinterpretation of precedent but concluded that “even if the trial judge had not made this error, he would have arrived at the same result".

The framework before Jordan (that the trial judge erroneously made reference to) allowed for the seriousness of the crime to warrant longer wait periods even though the ceiling was significantly shorter “(14 to 18 months)". However, the Court makes it very clear that the severity of the crime will not play a role in changing the period an accused party must wait before being granted a stay of proceedings.

Implications and Outcomes of the Ruling

For Mr. Thanabalasingham, the Court’s ruling meant that he would be granted a stay of proceedings given the fact that his section 11(b) right under the Charter was violated.

Overall, the Court’s usage of the Jordan rule reaffirms its importance and sets the standard for future cases by showing the significance of precedent on the matter. A noteworthy point from the case is that the “seriousness of the offence charged is a factor of very limited relevance in the analysis". It is this statement that highlights the risk of a stay in proceedings and makes it so significant that it has the potential to force those involved in the process to re-evaluate its efficiency. This will show its relevance in all aspects of proceedings. For example, it gives courts the ability to deny procedures such as adjournments “on the basis that it would result in unacceptably long delay”.

Thanabalasingham speaks to the authority and purpose of Jordan, which is best summarized in the following statement:

Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, "anything goes" culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion. Crown counsel is tasked with "making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently.

All in all, this greater emphasis on efficiency and respect for time better serves the purpose of section 11(b) of the Charter.

The Consequences of the COVID-19 Pandemic on Cases like R. v. Thanabalasingham

While Thanabalasingham clearly shows the need for trial within a reasonable time period, it will be interesting to see this re-evaluated with respect to the consequences of an ongoing, long-term pandemic. Using principles from Jordan, the decision in Thanabalasingham makes it clear that the reasonable time period can be modified under extenuating circumstances. However, after a year into the COVID-19 pandemic (with no clear end in sight), it is crucial to consider to what extent the current global situation might be considered an extenuating circumstance. It seems reasonable to expect that courts will need to adjust and remain accountable as long as the current environment remains as such but it is important to consider what will happen to individuals in positions like Mr. Thanabalasingham – will more stays of proceedings be granted?

Check out the Robson Crim MLJ
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