Defence delays which comprise delays solely or directly by the defence’s conduct or those it has waived don’t include the periods of time during which the court and the Crown or the defence are unavailable.
August 23, 2023
R v Hanan
 SCC 12
Supreme Court of Canada
S Côté, M Rowe, S Martin, N Kasirer and M Jamal, SCJJ
April 17, 2023
Reported by Faith Wanjiku and Brian Okumu
Constitutional law – Charter of Rights – right to be tried within a reasonable time – transitional exceptional circumstance – application for stay of proceedings based on violation of right to be tried within a reasonable time – where the trial court held that net delay exceeded Jordan ceiling but denied stay based on the application of transitional exceptional circumstance – where the Court of Appeal upheld the trial court’s decision – whether courts below erred in applying transitional exceptional circumstance where the parties had reasonably relied upon the law as it had been before Jordan was decided – Whether the accused’s right to be tried within a reasonable time was infringed – Canadian Charter of Rights and Freedoms, section 11(b)
The accused was charged in December 23, 2015 with manslaughter, discharging a firearm with intent to wound and possession of a loaded restricted firearm without a licence. A trial by jury was scheduled for November, 2018 within the Jordan ceiling. However, changes to the Crown’s case threatened to adjourn the proceedings. The defence offered to proceed by judge alone so that the trial could conclude within the Jordan ceiling, but the Crown refused. The trial court then offered a trial date in June, 2019 but the defence counsel was unavailable. The trial was eventually set to commence on October 28, 2019 and it ultimately ended on November 28, 2019.
The accused applied for stay of proceedings based on a violation of his right to be tried within a reasonable time under section 11(b) of the Charter of Rights and Freedoms (the Charter) however the stay was denied by the trial court despite the net delay exceeding the Jordan ceiling. Applying a transitional exceptional circumstance, the court found that the parties had reasonably relied upon the law as it had been before the decision of R v Jordan (Jordan). The accused was convicted of several offences and a majority of the Court of Appeal upheld the convictions, finding no violation of section 11(b) of the Charter.
i. Whether courts below erred in applying transitional exceptional circumstance where the parties had reasonably relied upon the law as it had been before Jordan was decided.
ii. Whether the accused’s right to be tried within a reasonable time was infringed given the delay of 35 months.
Relevant provisions of the law
Canadian Charter of Rights and Freedoms, 1982
Any person charged with an offence has the right to be tried within a reasonable time.
- Transitional exceptional circumstance was not applicable in the instant case. The net delay of about 35 months was an unreasonable delay contrary to section 11(b) of the Canadian Charter of Rights and Freedoms (the Charter).
- The trial court erred in concluding that the delay was justified based on the parties’ reasonable reliance on the law as it previously existed. The parties could not have reasonably relied on the pre-Jordan state of the law after Jordan had been decided in July, 2016, nor did they, as they consciously scheduled a trial within the Jordan ceiling. The focus for the delay that accrued after Jordan was decided should instead have been on the extent to which parties and the courts had sufficient time to adapt.
- The delay beyond the ceiling was not due to a lack of time for the parties and the system to adapt, but to the Crown’s refusal to agree to a trial by judge alone, despite being warned of the possible consequences of delay and despite Jordan having been previously decided almost two and a half years earlier.
- It was unfair and unreasonable to characterize the entire period between June and October, 2019 as defence delay. There was no bright line according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court had been characterized as defence delay.
Appeal allowed; – convictions set aside and a stay of proceedings granted.
Relevance to Kenyan Jurisprudence
The right of an accused person to be tried within a reasonable time is embedded within various articles of the Constitution, either explicitly or impliedly, key of which being Article 50(2)(e) of the Constitution of Kenya, 2010 (the Constitution) and is stated as follows:
Every accused person has the right to a fair trial which includes the right to have the trial begin and conclude without unreasonable delay.
In order for this right to be realized, a fundamental duty is imposed on the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights pursuant to Article 21(1) of the Constitution. This will ensure the administration of justice for all relevant parties involved in the event of a dispute.
Moreover, an accused person’s right to be tried within a reasonable time is further protected by Article 159(2)(b) of the Constitution which records:
In exercising judicial authority, the courts and tribunals shall be guided by the following principles –
(b) Justice shall not be delayed; …
It is vital for the courts to be cognizant of the time taken to dispose of cases in order to limit the chances of an accused person’s right to a fair trial being violated.
In the pre-2010 Constitutional dispensation, the courts were strict to adhere to the timeframe which an accused person could be arraigned in court. In Republic v James Njuguna (2007) eKLR the accused was kept in custody for 105 days which was past the 14 day statutory period stated in Section 72(3) of the 1963 Constitution and no reasonable explanation was offered for the delay. It was held that the constitutional and fundamental rights of the accused were violated.
A similar finding was also made in Githunguri v Republic (1986) eKLR where the court found that an accused person’s right to fair trial would be prejudiced if charges against them were brought late and it would also lead to difficulty in procuring witnesses.
In Ann Njogu and 5 others v Republic (2007) eKLR, the court pronounced that at the tick of the 60th minute of the 24th hour, if the applicants had not been brought before the court, every minute thereafter of their continued detention was an unmitigated illegality as it was a violation of their fundamental and constitutional rights.
The consequence of the trial being protracted to the detriment of the accused person was that they would continue to be detained for longer periods of time hence in Julius Kamau Mbugua v Republic (2010) eKLR, the appellant claimed that he was unlawfully kept in police custody for 107 days before he was charged in court and that his right to a fair trial within a reasonable time was also violated and he sought to be discharged, among other reliefs.
After the promulgation of the Constitution of Kenya, 2010, an accused person gained the opportunity to ventilate their case in the High Court pursuant to Article 23(1) as read with Article 165(3)(b) which confers on it jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights. If the accused person brought proceedings under Article 22 of the Constitution, then they may be granted by a court either a declaration of rights; or a conservatory order; or an order for compensation among other reliefs pursuant to article 23(3) of the Constitution.
The case is pertinent to Kenya’s jurisprudence as it mirrors the challenges that are encountered in the administration of justice by State organs which may be contributory or unintentional from either the State, defence counsel or an accused person in the disposition of trials.