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Author: Drew Yewchuk

B.A. (UAlberta) J.D. (UCalgary) LLM (U.B.C.) Drew was a full-time staff lawyer with the University of Calgary's Public Interest Law Clinic from 2018-2022. He is now an PhD student at the Peter A. Allard School of Law. His research focuses on administrative secrecy, access to information law, species at risk, resource law, and environmental liabilities.

Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

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On July 14, 2016

In Constitutional, Criminal, Supreme Court of Canada

By: Drew Yewchuk 

PDF Version: Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

Cases Commented On: R v Jordan, 2016 SCC 27 (CanLII); R v Williamson, 2016 SCC 28 (CanLII)

I recently posted a comment on a Supreme Court of Canada decision, R v Vassell, 2016 SCC 26 (CanLII), involving section 11(b) of the Charter, which guarantees the right of any person charged with an offence to be tried within a reasonable time. On July 8, 2016, the Supreme Court of Canada decided two more appeals on section 11(b) of the Charter. In a five-four split in R v Jordan, 2016 SCC 27 (CanLII), the majority overturned the framework for calculating unreasonable delay that was established in R v Morin, [1992] 1 SCR 771 (CanLII). The new framework is simpler, and establishes presumptive ceilings for unreasonable delay (minus defence delays) between charges being laid and the end of trial. The new ceilings are 18 months for charges going to trial in provincial court, and 30 months for charges going to superior court. (Jordan, at para 49) This is a significant change to section 11(b) jurisprudence, and both the majority and concurring judgments acknowledge it as such (Jordan, majority at paras 134-137, concurring at para 302). Moreover, the concurring justices only concur as to the outcome of Jordan – they propose a less radical departure from Morin and fundamentally disagree regarding the proper framework to be applied. This post explores the reasons provided by the majority for this change, as well as the application of the majority and alternative frameworks in Jordan and the companion case of R v Williamson, 2016 SCC 28 (CanLII).

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The Forest of Delays

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On July 6, 2016

In Constitutional, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: The Forest of Delays

Case Commented On: R v Vassell, 2016 SCC 26 (CanLII)

Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with an offence has the right to be tried within a reasonable time. In R v Vassell 2016 SCC 26 (CanLII) the Supreme Court of Canada reiterated that the Crown is responsible to deliver on this right. The approach that had been developing in Alberta courts was that the right would only be violated where the actions of the Crown caused excessive delay – institutional delays and delays caused by anything other than Crown actions were considered neutral or less important and did not trigger section 11(b). The Supreme Court in Vassell rejects this approach: the Crown is responsible for bringing the accused to trial within a reasonable time and therefore for all delays, regardless of their cause, trigger section 11(b) unless the accused explicitly or implicitly waives their right to be tried within a reasonable time.

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Five Million Dollars Versus One Night in Jail

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On June 1, 2016

In Constitutional, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: Five Million Dollars Versus One Night in Jail

Case Commented On: R v Peers, 2015 ABQB 129 (CanLII), R v Peers, 2015 ABCA 407 (CanLII), leave to appeal granted May 26, 2016

On May 26, 2016 the Supreme Court of Canada (SCC) granted leave to appeal from the decision of the Alberta Court of Appeal in Peers. The three appellants are all charged with a variety of offences under section194 of the Securities Act, RSA 2000, c S-4, which provides for a maximum penalty of “a fine of not more than $5 000 000 or to imprisonment for a term of not more than 5 years less a day, or to both”. The basis of their appeal is that section11(f) of the Canadian Charter of Rights and Freedoms — which guarantees “the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment” — entitles them to a jury trial, because a penalty of five years less a day of imprisonment and a $5 000 000 fine is “a more severe punishment” than “imprisonment for five years”. This appeal raises a constitutional question left open 27 years ago in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 (CanLII) (Irwin Toy): can some personal economic rights be protected by the section7 Charter guarantee of “life, liberty, and security of the person?”

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