3.17 Ensuring Timely Prosecutions

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

August 25, 2016

Table of Contents

1. Introduction

In R v Jordan, 2016 SCC 27, the Supreme Court re-examined the Morin framework governing the determination of unreasonable delay. A majority of the Court decided to depart from Morin and substituted a new framework for analyzing delay under s 11(b) of the Charter. The new framework sets ceilings beyond which delay will be presumptively unreasonable: if the total length of delay from charge to the actual or anticipated end of trial (minus defence delay) exceeds 18 months, in cases going to trial in provincial court, or 30 months for cases going to trial in superior court, the ceilings will have been breached.

The new approach outlined in Jordan places an even greater emphasis upon the Crown to avoid, through appropriate case management, reaching the 18/30 month ceilings and in those cases where the ceiling is surpassed, to demonstrate that it did all it could to manage the prosecution. For managers, supervisors and prosecutors, this translates into vigorously following and building upon existing practices and policies relating to file management. Since Crown counsel do not control all of the levers to ensure the timely conclusion of a prosecution, the Jordan approach will necessarily implicate our relationships with the police, defence counsel and the Courts.

2. File Management

In Jordan, the Supreme Court emphasized the significance of the case management of the prosecution, in determining whether a prosecution should be stayed for unreasonable delay:

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

Chief Federal Prosecutors must ensure that case management policies and practices to ensure that they are applied in a robust, consistent and effective manner. The following elements bear particular attention.

2.1  Review of Files

There must be timely, competent and effective review of each file to ensure that core disclosure is complete and the charges against each accused meet the test for prosecution. Ordinarily, initial review should occur no later than the second appearance. Each regional office must have a process in place for assigning files for timely review. Undertaking this review, making decisions based upon the review and clearly noting the results of the review will enhance effectiveness and efficiency.

Responsibility for file review at each stage of the prosecution must be clear. Any Crown should be able to quickly and confidently see the results of the review, the actions taken and any changes in circumstances. This is especially important when other Crowns are required to deal with the file due to changed scheduling requirements or opportunities. This information must be clearly recorded and readily accessible in the file.

The nature of the review expected of counsel will intensify as the case advances. Counsel’s review at earlier stages of the proceeding will necessarily be less detailed than that required in preparation for the preliminary inquiry or trial. Nonetheless, for the low and medium complexity casesFootnote 1, counsel should be clearly identifying which witnesses are required, determining resolution positions and estimated preliminary inquiry or trial time and indicating them on the file and, at the appropriate time, communicating them to defence counsel. The more detailed review in preparation for a preliminary hearing or trial must be outlined in detail in the file to permit transfer of the file to other counsel if required to accommodate scheduling exigencies.

2.2  Disclosure Readiness

Chief Federal Prosecutors must ensure that understandings and practices regarding Crown expectations for the completion of disclosure by investigators reflect the Jordan framework.

Focused communications with the regional management of investigative agencies should occur to reinforce the expectations and emphasize the impact that delays can have on a successful prosecution. The escalation from the line prosecutors and investigators to managers to resolve disagreements about the file should aim for resolution of disagreements at the lowest levels possible.

The need to move more expeditiously with file management decisions must not jeopardize the Crown’s ability to fulfill its obligations with respect to providing disclosure and safeguarding sensitive information, including privileged information and privacy interests. Chief Federal Prosecutors must ensure that adequate mechanisms are in place to ensure such obligations can be fulfilled without impeding the expeditious progress of the file.

2.3  Stays of Proceedings or Withdrawal of Charges

In cases where it has been determined on either initial or subsequent review that the Decision to ProsecuteFootnote 2 criteria are not met, charges must be stayed or withdrawn in a timely fashion. Supervisors should be available for consultation with counsel especially in relation to files with particular sensitivities relating to disclosure, for example, unusual confidential informant issues.

2.4  Prosecution Plans

Prosecution Plans must be prepared in all cases rated as high complexity, as set out in Chapter 3.1. Jordan highlights the importance of strict compliance with this policy in order to anticipate issues and minimize delay, and to be in a position to assert that the Crown has taken reasonable steps to do so. Ideally, Prosecution Plans should be prepared in advance of charges being laid. Prosecution Plans must be approved by the Chief Federal Prosecutor, and the Chief Federal Prosecutor is responsible for ensuring that appropriate cases are referred for review by the Major Case Advisory Committee as set out in Chapter 3.1.

2.5  Advancing Files

Mechanisms must be in place to ensure that files do not languish or move forward without ongoing appropriate follow-up with the police, the defence counsel and the court.

Follow-up must be ongoing with the police on disclosure, witness availability and trial preparation. Communications with the defence should be undertaken in a timely way to determine the suitability and completeness of disclosure, readiness for trial, estimates of time for the trial (or preliminary inquiry) and defence election. These communications should occur in the ordinary course and standardized letters should be developed in each region for this purpose.

Chief Federal Prosecutors must ensure that a system is in place for requiring supervisors to review the handling of files within their team. Initial responsibility for supervision of the processes remains with the team leader/supervisor. This responsibility includes to ensure consistency, the substantive quality of the decisions in the file, the management of the physical or electronic file itself as well as mentoring and instruction.

In any case where it becomes apparent that the 18/30 month ceilings will be breached (including cases already in the system at the time Jordan was decided), Crown counsel must assume that as 11(b) application will be brought in the absence of a specific undertaking to the contrary by defence counsel. Any necessary transcripts should be ordered in a timely way so as to ensure no additional delay is occasioned.

3. Court appearances

3.1 Remand Dates

Crown counsel must be prepared to set preliminary inquiry or trial dates at the earliest opportunity after core disclosure has been completed. At each stage, Crown counsel must ensure that the record will provide an adequate demonstration of the proactive management of the file. In the early stages, Crown counsel would be confirming on the record that disclosure has been made and that the Crown is prepared to set pre-trial dates or even a hearing date. When setting a preliminary inquiry or a trial date, Crown counsel should be prepared to provide some information on the record about the file’s complexity, in order to explain the time being sought for the completion of the hearing or trial. Particularly, Crown counsel should indicate on the record the number of witnesses to be called, the expectation that defence will bring a Charter application (if you are aware of it), the voluminous material disclosed, and other pertinent matters.

Crown counsel should invite defence counsel to detail any pre-trial applications they intend to bring, including the potential time requirements. Any concessions or narrowing of the issues should be noted on the record as part of explaining the factors considered in estimating hearing time. Crown counsel should note on the record any attempts made with defence counsel to obtain concessions or narrow the issues. This, of course, would be to demonstrate due diligence by the Crown where delay is occasioned by the necessity to secure a large block of time, especially if that block subsequently proves unnecessary because issues are subsequently narrowed.

Where available dates for hearings, particularly for lengthy matters, will exceed the 18/30 month ceilings set by Jordan, Crown counsel should consider asking the court to set aside additional time for the hearing of a s 11(b) application, unless defence counsel is prepared to state on the record that no such application will be made. Crown counsel may also consider asking the court to set deadlines for defence to file Charter notices in sufficient time to permit the obtaining of any necessary transcripts for the proper hearing of a s 11(b) application.

3.2 Judicial pre-trials

Crown counsel should seek to identify in advance any issues which might be usefully canvassed at pre-trials, and provide any relevant material, including caselaw, to defence counsel. Crown counsel should be cognizant that matters discussed at pre-trial hearings may form part of the record at a s 11(b) hearing. For this reason, counsel should ensure that a record exists of pertinent matters discussed and positions taken at the pre-trial. This would include resolution positions put forward by either side, time estimates, elections, concessions or admissions made, concessions or admissions suggested by Crown but rejected by defence counsel, witnesses required or waived, and other pertinent matters. Matters which, in any given jurisdiction, are recorded by the pre-trial judge and form part of the court record need not necessarily be recorded separately in the Crown file. Where appropriate, matters discussed at the pre-trial should be reduced to writing and communicated to defence counsel. In some instances, in jurisdictions that permit it, Crown counsel may request that pre-trials be conducted on the record because it is anticipated that the transcript of the pre-trial may be required on a s 11(b) hearing.

3.3 Adjournments

Crown counsel must ensure that it is clearly indicated on the record who asked for the adjournment, the reasons and the effect upon time to trial. Requests for adjournments to accommodate the convenience of police witnesses, for example, vacation not previously indicated when the trial date was set, should not ordinarily be made in the absence of extenuating circumstances, such as miscommunication or innocent mistake. Where extenuating circumstances do exist, counsel must give careful consideration to whether accommodating the request would jeopardize the s 11(b) integrity of the proceeding.

Where the defence requests the adjournment, defence should ordinarily be asked whether resulting delay is waived. Defence requests for adjournments should not be consented to in the absence of such a waiver, unless extenuating circumstances exist such that it would be unreasonable for the Crown to insist on such a waiver – for example, where the reason for the defence request arises from some failure or inaction on the part of the Crown or the police, such as late disclosure.

3.4 Re-elections

Crown counsel should require that accused waive the delay stemming from the re-election from a superior court trial to a provincial court trial as a condition of its consent. The majority in Jordan recognized that it would be reasonable to do so. (para 62). This is significant because the change in level of court moves the yardstick from 30 months to 18 months. Before Crown counsel consent, the defence must agree to waive all delay since the date of the original election to Superior Court, in effect re-setting the clock to within the 18 months contemplated at the level of a provincial court trial without a preliminary hearing.

4. Additional Issues

4.1 Ongoing Prioritization of Cases

Systems should be developed to permit the re-scheduling of preliminary inquiries and trials to accommodate moving up cases of higher priority or which are in danger of exceeding the 18/30 month ceilings. Some jurisdictions may be able to implement such systems within the current framework used by the court. In jurisdictions where such systems would be a departure from the norm, consultation with the judiciary and defence bar will be required.

4.2 Direct Indictments

The potential that an unreasonable delay will occur and result in a stay is a well-established reason in Chapter 3.6 for seeking a Direct Indictment. While the risk of stays for unreasonable delay may be heightened as a result of Jordan, the requirements of Chapter 3.6 will still need to be met.

4.3 Multiple Accused Prosecutions

Ongoing consideration must be given to the question of whether the accused should be tried together or if severance is appropriate. In addition to the ongoing rigorous application of the decision to prosecute standard against all of the accused in a multiple accused prosecution, it will also require a realistic and pragmatic consideration of the delay implications of proceeding against multiple accused, in particular the difficulty of finding dates available to numerous defence counsel. The minimisation of the risk of perverse or contrary verdicts that could result from severance must also be borne in mind.

4.4 Stays of proceedings by the Crown or the Court as a result of the Jordan timelines

When this occurs, the term “Jordan stay” is to be recorded in the note field in iCase so that it can be searched subsequently. Crown stays of proceedings / withdrawals and judicial stays of proceedings must continue to be recorded as separate outcomes.

4.5 Management of s 11(b) litigation

CFP’s may consider assigning s 11(b) applications to a designated group of prosecutors, where feasible, in order to both maximize efficiencies in the handling of such litigation, and to effectively manage the development of the law in this area.

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