Monday, February 13, 2017

Speedy Trial

How long should a criminal case take to get heard?

The Canadian Constitution provides that anyone charged with an offence is entitled to a speedy trial. The concept is that having a charge hanging over your head for a long time is not fair - what's more evidence for trial may not last well. Witnesses' memories fade over time and proving a case becomes progressively harder as time goes on. Society also has an interest in having cases heard promptly. Crime and punishment should go together and not be separated by years of delay.

In the fairly recent past trials were heard much more quickly than they are today. In the early 1960s even murder cases were tried within six months of the accused being charged. My grandfather, who was a lawyer, told me that simple cases – like shoplifting or street walking were sometimes tried within a week or so of charges being laid! Of course justice can be too fast. Sometimes having a trial too quickly can mean that neither side is properly prepared and innocent people can be convicted. It's better to do something right than to do something quickly.

All that said, the Supreme Court of Canada recently decided that cases were moving too slowly and set a presumptive guideline for cases.

Put simply, less serious cases should be tried within 18 months and more complex cases – things like murder or arson – should tried within 30 months. If the defendant delays the case on purpose that time is not counted but otherwise, except if something unexpected happens or the cases is remarkably complex, the timelines are firm. If a case exceeds the timeline, in general, the charges will be stayed and the accused never tried.

What is something unexpected? It's not totally clear but examples would be the judge getting sick just as trial starts or a witness disappearing unexpectedly. It needs to be something that could not reasonably have been predicted. Would being weathered out count in Nunavut? Maybe, although being stuck by fog or blizzard is hardly a surprising or unusual event.

For a case to be remarkably complex so as to get beyond the timeline it has to be an extraordinary situation. A recent Ontario decision held that a murder case with dozens of witnesses and thousands of documents did not qualify – perhaps only major terrorism or large scale fraud cases could fit within that exception.

One might ask why would the defendant ever delay as a case "on purpose" and if they did wouldn't that be unethical? The short answer is no – there are many reasons for a defence delay that slow down a case but which are totally reasonable and acceptable.

I had a case set for trial the end of this month. It was set for eight days and if the accused was found guilty he would likely go to jail for some time. However he learned his aged father was in serious decline – not something unexpected but if he was convicted he would likely not see his father again. He wanted to see his father – more important his father wanted to see him – before his father passed and so the trial was (with Crown consent) adjourned. Not a thing wrong with this adjournment but the delay caused by it will not could in the timeline.

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