The Pandemic and Criminal Trial Delays: What about my Charter right to be tried within a reasonable time?

Associated Areas of law

Every person who has been charged with a criminal offence has a Charter right to have their case dealt with by the courts within a “reasonable time”. If the court or the Crown causes too much delay, a “stay of proceedings” results: in other words, the Crown cannot continue with its case and the prosecution ends.

The pandemic is causing mandatory adjournments and, for many, a consequence will be that cases will not conclude within the time limits set by the Supreme Court of Canada in a case called R v Jordan. This may leave you wondering: will I get a stay of proceedings if the coronavirus pushes my trial past the Jordan deadline?

The answer: probably not, but maybe.

The Jordan time limits only apply to delays that are caused by the courts and the Crown. “Exceptional circumstances” are not counted when the total delay is calculated. A global pandemic will almost certainly fall into that category: it is difficult to imagine a more exceptional scenario. In most situations, then, delays caused by COVID-19 will not stop the case from proceeding. 

However, that is not the end of the story. The pandemic cannot be relied upon to excuse unnecessary delays. Jordan tells us that if the courts and Crown do not do everything they can to move files forward, they will be responsible for the resulting delays.

This is important in two ways. First, the pandemic may cause a domino effect of cascading delays. While the pandemic may be at fault for an initial delay, the same cannot be said for further delays if trials are not prioritized properly or if the Crown and courts do not plan effectively.

Second, if courts postpone cases that could have gone ahead without causing a public health risk, the delay might not qualify as an “exceptional circumstance” at all. If courts 1) postpone cases when public health and safety no longer requires it; or 2) do not offer a way to proceed virtually (i.e. by video conference) in cases where that would be possible, the delay might count against the Crown and courts, and in favour of the accused. 

Whether a delay is unreasonable must be assessed on a case-by-case basis. If you are concerned about how the pandemic will affect your right to be tried within a reasonable time, please contact Patterson Law and our criminal defence team will be happy to assist.