The court also dealt with cases that were in the system prior to July 8, 2016. For these cases the court adopted a contextual application of the new framework. In doing so, the court said it was attempting to avoid a repetition of the post-Askov1 debacle that caused the tens of thousands of criminal charges to be stayed as a result of a similar abrupt change to the law of delay. For cases in the system before this decision, the new framework applies, subject to two qualifications:
(i) If the case exceeds the ceiling a transitional exceptional circumstance may arise. It will apply if the Crown satisfies the court that the time the case required to complete is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires sensitivity to the manner in which the previous framework was applied and the fact that the parties’ behaviour cannot be Judged too strictly, in the sense that they were not placed on notice of the new basis upon which delay will be decided.
(ii) The second qualification applies to cases in the system prior to July 8, 2016 that do not exceed the ceiling. In these cases the court will consider initiatives by the defence to expedite the trial and whether the time the case has taken markedly exceeds what was reasonably required. These criteria must also be applied contextually with sensitivity to the parties’ reliance on the previous state of the law.
Under the previous Morin framework for determining unreasonable delay defence initiative was not expressly required. The court determined therefore that it would be unfair to require it for the period of time before the release of this decision.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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