Section 11(b) of the Charter of Rights and Freedoms provides people accused of a crime with the right to be tried within a reasonable time. Most recently, the Supreme Court of Canada has interpreted this in the case of R. v. Jordan 2016 SCC 27 to mean that people charged in Provincial Court should have their matter heard within 18 months and that Superior Courts should hear matters within 30 months.
These time limits are presumptive ceilings (which means that they can be rebutted depending on the circumstances surrounding the delay). Currently both Provincial Courts and Supreme Courts in British Columbia are limiting themselves to hearing urgent or non-contested matters. This includes such things as bail hearings and in-custody sentencings but has recently expanded to include hearings by telephone for sentencings where the Crown and Defence are mostly in agreement as to the outcome.
Most Provincial Court Criminal matters will be adjourned without people having to attend court. Traffic matters have also been adjourned generally without attendance and with new dates to be sent out. Currently, the Courts are noting the reason for the delay as being COVID-19 related, meaning that the adjournment will not be attributed to either the Crown or Defence. Jordan outlined that once a case exceeded the deadlines, the burden shifted to the Crown to demonstrate “exceptional circumstances” or “discrete events” to rebut the presumption that the delay was unreasonable. The Courts seem to have indicated that COVID-19 has and will meet the standard of being exceptional circumstances. However, what remains to be seen is whether the extra stress put on the already stressed justice system (by essentially having to reschedule several months of matters in the future) will cause future trial dates to be unavailable or delayed that were not directly delayed as a result of COVID-19. This backlog could very well lead to delays to other future matters (perhaps which have not occurred yet) where the Crown may very well have difficulty in arguing exceptional circumstances and instead the delay may be found to be “institutional”.
Additionally, while many traffic court rooms around the Province were previously providing relatively quick trial dates, the backlog of cases may lead to difficulties in meeting the Jordan deadlines given the limited resources that many courts deal with.
Given the unprecedented circumstances that have occurred, the Courts and justice system are going to have to be very efficient in order to minimize the future delays that may occur as a result of COVID-19. Otherwise, challenges to cases based on court delay may have a good chance at being successful.