The Drug Court Paradigm

posted by Judge_Burke @ 14:42 PM
August 24, 2016

Jessica Eaglin

Indiana University Maurer School of Law

August 10, 2016

American Criminal Law Review, Vol. 53, No. 595, 2016


Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration. Though reforms adopted within the drug court paradigm have contributed to stabilizing prison populations and have created a national platform to discuss mass incarceration, this paradigm has limits that may prevent long-term reductions in prison populations. This Article identifies three limitations of the drug court paradigm: First, by focusing exclusively on low-level drug offenders, the approach detrimentally narrows analysis of the problem of mass incarceration; second, by presenting a “solution,” it obscures the ways that recent reforms may exacerbate mass incarceration; third, by emphasizing a focus on treatment-oriented reforms, this paradigm aggressively inserts the criminal justice system into the private lives of an expanding mass of citizens.

This Article locates the current frame’s origin in the drug court movement. Identifying this connection is important for two reasons: First, it provides new insight to how we define “success” in criminal justice, and why. Second, it illuminates a growing tension between government actors and the general public’s appetite for criminal justice reforms that meaningfully reduce mass incarceration.



Implicit Bias is Hard to Deal with for Judges

posted by Judge_Burke @ 15:57 PM
August 23, 2016

As judges, we sometimes think of ourselves in unhealthy ways. We may have been appointed through a careful process or been elected through a vetting with the people, but none of us were anointed.  Simply put:  We are not saints. The ABA Journal reports:

Judges are tasked with being the most impartial members of the legal profession. On Friday afternoon, more than 50 of them discussed how this isn’t so easy to do—and perhaps even impossible when it comes to implicit bias.

But working to overcome biases we don’t recognize is a job that is as necessary as it is worth doing.

“We view our job functions through the lens of our experiences, and all of us are impacted by biases and stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” 6th U.S. Circuit Court of Appeals Judge Bernice B. Donald told a gathering of judges, state and federal, from around the country. Donald was on a panel for a program by the ABA’s Judicial Division, titled “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” at the association’s annual meeting in San Francisco.

The audience of mostly judges heard several examples from various studies over the years: Darker skin leads to longer prison sentences, differentiating even between lighter- and darker-skinned African-Americans. Prospective jurors given facts about a fictional incident remember more aggressive details about a defendant named “Tyrone” than they do when the same scenario concerns a “William.” And when 60 lawyers were shown the same research memo from what they believed to be a third-year law student, and half were told it was by a black student while the other half were told the writer was white, they gave the black writer a 3.2 out of 5 and scored the white writer 4.1.


The complete article can be found here


The State of the Exclusionary Rule

posted by Judge_Burke @ 15:21 PM
August 22, 2016

Even though a police officer unlawfully detained a Utah man without probable cause, the drug evidence that later was discovered in the man’s pocket could be used against him in court, the United States Supreme Court  in a 5-3 ruling held that the evidence should not be suppressed.  Justice Sotomayor, who wrote a strong dissent  that the law should prohibit, not encourage, police tactics that especially burden communities of color. The exclusionary rule is weakened but survives, barely

The National Law Journal reported:

In an impassioned dissent, Sotomayor cited a report on last year’s unrest in Ferguson, Missouri, and wrote about “the talk” that parents of color give to children about how to behave in the presence of police — a recurring theme in the current debate over policing and race. It was a rare example of a justice drawing current events into an opinion. Justice  Thomas who wrote the majority opinion  did not directly engage with Justice  Sotomayor’s arguments.

“For generations, black and brown parents have given their children ‘the talk,’ ” Sotomayor wrote in Utah v. Strieff, “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

Justice Sotomayor added, “This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” A “carceral state” is prison-like.

She said a Justice Department report found that “in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.” Sotomayor also cited works ranging from “The Souls of Black Folks” written by W.E.B. Du Bois in 1903 to “Between the World and Me,” the 2015 book by Ta-Nehisi Coates.


The officer’s lack of any specific suspicion of Mr. Strieff, Justice Thomas wrote, was a result of “good-faith mistakes.” The illegal stop was, at worst, “an isolated instance of negligence.”


Read more here.


Can You Discriminate in Your Will?

posted by Judge_Burke @ 17:25 PM
August 18, 2016

In New Jersey, the answer is yes. The Law Blog- WSJ  reports:

A New Jersey appeals court refused to set aside the will of a deceased father who disinherited his daughter allegedly because she dated and married a Jewish man.

Plaintiffs Stacy Wolin and her daughters argued that the will left by her father Kenneth Jameson of Haddonfield, N.J., was invalid because it was the “product of religious discrimination.”

According to the state appeals court opinion handed down Friday:

Stacy enrolled in college in 1982 and began dating Marc Wolin (Marc), a person of the Jewish faith. After telling her parents that she was dating Marc, Stacy’s parents allegedly forbade her from talking, socializing, and having any contact with him because he was Jewish…

Kenneth allegedly told Marc that “they would not attend the wedding because they would never endorse their daughter marrying a Jew.”

Mr. Jameson died in April 2014 at the age of 81, leaving his estate to a nonprofit serving people with developmental disabilities, according to the Associated Press.

The father’s “alleged discriminatory motive does not provide a basis to set aside the will,” stated the ruling, upholding a lower-court decision. Friday’s opinion cited a 19th-century judicial precedent that held that courts are bound to uphold the validity of a will even if it’s “contrary to the principles of justice and humanity” and its provisions are “shockingly unnatural and extremely unfair.”


Read more here.






Plea-Bargain Ban for Police Threats Raises Eyebrows – Law Blog – WSJ

posted by Judge_Burke @ 14:30 PM
August 17, 2016

Judges have the right to reject plea bargains. Being transparent about the approach a judge has typically would not generate criticism. For example, in parts of Minnesota there are judges who will treat a sentencing recommendation as just that:  a recommendation by which they are not bound.  Other judges have no objection to plea negotiations which fix the terms of a sentence. But a recent action by a Texas judge caught the attention of the media:

A Texas judge has come under criticism for announcing on Facebook that his court would no longer allow defendants charged with threatening or endangering police officers to negotiate plea deals with prosecutors.

District Judge Kerry Neves of Galveston County unveiled his policy in a Facebook post on July 18, in the wake of a pair of deadly multiple shootings targeting police in Dallas and Baton Rouge that left eight officers dead and 10 wounded.

“No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved,” wrote the judge.

Without referring to any specific incident, he added: “I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers.”


Read more here.



From the Procedural Fairness Blog

posted by Judge_Burke @ 14:45 PM
August 15, 2016

If you have not recently visited the procedural fairness web site & blog (available here) you should.

This is a recent post:

We don’t know who first said this: “Learn from the mistakes of others; you can never live long enough to make them all yourself.” But we surely know that judges can learn from the mistakes of other judges.  Explaining to a defendant why a judge imposed a sentence and insuring everyone understands that the decision was based upon neutral principles of law, not some personal vendetta, is an essential component of procedural fairness. Reflecting on what should be said in explaining a sentence is among the most effective checks on our implicit biases.

United States District Judge Rudolph Randa said some things at a sentencing that all judges can learn from. According to a transcript, his remarks included these: “We had huge riots in this city.  Not unlike what happened in Baltimore this week.  And if we had something like this in this city today? With this pathology that we’ve got set in these neighborhoods? The same thing is going to happen here.”

So what did Judge Randa do that judges might learn from? Judge Randa sentenced Billy Robinson Jr. within the recommended range of the federal sentencing guidelines, yet he was not only reversed by the United States Court of Appeals for the Seventh Circuit, he was removed from the case.  As the appellate court put it: “Billy Robinson’s guilty plea was routine; his sentencing hearing was not. . . . During his sentencing hearing, the district court went far afield in its comments.  We are left without the ability to say confidently that the sentence was imposed in accordance with the proper procedures.” United States v. Robinson, No. 15-2019, 2016 WL 3947808 (7th Cir. July 22, 2016).

The protests in Baltimore and events the judge remembered from 1976 had nothing to do with a relatively minor player in a Milwaukee drug case in 2015, the court said.  Judge Randa was also chastised for remarks about crime in urban neighborhoods and about the defendant having had multiple children with different women.  The judge’s remarks “were irrelevant and had no basis in the record,” Chief Judge Diane Wood wrote. “They therefore undermine our confidence in the fairness of the proceeding.”

The appellate court carefully explained its problems with Judge Randa’s remarks at sentencing:

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” Smith, 400 Fed. Appx. at 99 (citing Figueroa, 622 F.3d at 743–44). We need not review all of the comments made during sentencing; a few examples will suffice.

The district judge invoked his own recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. These references are troubling because they could be “understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.” United States v. Wilson, 383 Fed. Appx. 554, 557 (7th Cir. 2010) (nonprecedential). They appear to attribute “issues of broad local [and] national . . . scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” Smith, 400 Fed.Appx. at 99. Robinson was not charged with a violent crime or a crime involving a firearm, nor did his criminal history include any such crimes.

The district judge also went too far when he suggested that Robinson’s crime was related somehow to events elsewhere in the country. The court discussed its belief that Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of his deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.

. . . .

The district court also used “colorful” language to “dispense with arguments that [it] did not appreciate.” See Figueroa, 622 F.3d at 743. In response to Robinson’s statement that his family supports him, the court said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court pointed out that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, “the real problem” (in the judge’s words) that his sentence is meant to address.

Judges should tailor a sentence to fit the facts and circumstances of the crime committed and the background of the defendant.  Prior offenses are usually easy to determine.  But when one moves to mental or moral propensities or social background, or pontificates about the effect crime as a way of explaining general deterrence, implicit bias can infect the decision—unless the judge is very careful.

The right to allocution dates back to 1776.  Allocution provides an opportunity for a defendant to explain—in his or her own words.  Although not every state has held the right to allocution to be a fundamental right, it is in essence the first component of procedural fairness: voice.


Steps to Getting Good at Sentencing:

  • Prepare Mentally

The transcript in United States v. Robinson makes clear that everyone was prepared. Judge Randa had read the presentence report and knew about the defendant. But was he mentally prepared? Interaction with a defendant at sentencing is not an easy task. Being mentally prepared is the essential first step.

  • Voice and the Right to Allocution

One of the most prevalent reasons people do not speak in court is intimidation.  Added to the intimidating atmosphere of a court environment at sentencing is fear: “Be careful what you say for fear of offending the judge.”  If intimidation and fear of a defendant to speak are allowed to permeate a sentencing, voice and the right to allocution can become hallow.

  • Saying Less Is Not Necessarily Better

There is a temptation to react to Judge Randa’s situation and conclude less is better. It is not. Sympathy can be appropriate at sentencing. Explaining why something that is important to the defendant cannot be recognized as legally relevant also is an essential part of good sentencing. 

  • Emotion Is Part of the Sentencing Process

Regulating your own emotions and those of others is a part of all court proceedings—and particularly of a sentencing. Some sentencings can evoke anger in a judge. While anger may or may not be appropriate to the situation, contempt of an individual is never acceptable. Victims can express anger and a prepared judge needs to regulate their emotions. Remorse is an emotion some defendants have and some defendants rather poorly fake. A defendant’s failure to show remorse is a powerful factor in many a judge’s decision on sentencing.  Yet, there is little evidence that remorse can be accurately determined. There is significant evidence that race can create obstacles to accurately evaluating remorse.  See Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Review 14-19 (Jan. 2016) (first published on October 23, 2015).


Do You Need a Warrant to Use a Cellphone Tracking Device?

posted by Judge_Burke @ 14:30 PM
August 12, 2016

A federal judge in Manhattan suppressed narcotics evidence because the U.S. Drug Enforcement Administration didn’t get a warrant to use a cellphone tracking device that led them to the suspect’s apartment.

The decision by U.S. District Judge William Pauley appears to be the first time a federal judge has required a warrant for use of a cell-site simulator, which mimics cellphone towers to track suspects’ cellphones, reported the New York Law Journal (sub. req.) and the New York Times. The devices go by the names StingRay, Hailstorm and TriggerFish.


Does the Second Amendment Protect the Right to Bear a Knife?

posted by Judge_Burke @ 14:30 PM
August 11, 2016

Until the United States Supreme Court ruled there was an individual right to bear arms, the prevailing wisdom was that there was not constitutional right to have a gun. Gun rights are now part of the political lexicon, so what next?

Bringing the Second Amendment to a knife fight. You have the right to bear arms, and by arms the Constitution also means knives:

While congressional Democrats and Republicans go head-to-head over gun control, proponents of a smaller, often overlooked facet of the Second Amendment’s right to keep and bear arms pursue a battle of their own—the right to carry a knife.

Knife Rights, an Arizona-based advocacy group aimed at ridding states of existing bans on specific types of knives, is leading the fight against restrictive knife laws across the U.S.

“Protecting knife rights is the second front in the defense of the Second Amendment,” Todd Rathner, director of legislative affairs at Knife Rights, told The Daily Signal.

The group also seeks passage of “knife law preemption,” which essentially removes local and county restrictions that conflict with state laws on using and carrying knives. 


Read more here.



The Professor v. The Appellate Judge

posted by Judge_Burke @ 14:40 PM
August 10, 2016

The National Law Journal recently reported that:

“When a judge harshly critiques a lawyer in a written opinion, it’s sometimes called a “bench slap.”

There is no term devoted to counsel rebuking judges. Perhaps it can be called an “Alschuler slap.”

Albert Alschuler, a well-known and now retired University of Chicago Law School professor, accused a federal appeals court judge in a law review article published last week of eight “falsehoods” in two opinions that kept Alschuler’s client, former Illinois Gov. George Ryan, in prison.

Alschuler called U.S. Court of Appeals for the Seventh Circuit Judge Frank Easterbrook, a University of Chicago colleague widely hailed as one of the nation’s leading jurists, a “bully” with a “paradox” of a reputation. While intellectuals and academics have praised Easterbrook, Alschuler writes that he has also earned the scorn of practitioners who have appeared in front of him.

The article represents a battle between lawyers at the top of the federal judiciary and legal institutions of higher learning.

In an interview, Alschuler said the article was written partly out of anger, but it is also intended to prod Easterbrook’s federal appellate colleagues to “rein him in.”

“Judge Easterbrook’s colleagues should view everything he says with skepticism and should recognize the serious problem his conduct poses for their court,” Alschuler writes in the article, titled “How Frank Easterbrook Kept George Ryan in Prison,” published in the Valparaiso Law Review and downloaded more than 1,400 times by the time of this story.


A previous post dealt with the Supreme Court of Canada’s decision on the right to a speedy trial. But, for those who are interested in this decision and its implication, this summary was prepared by Judge Wayne Gorman. 

R. v. JORDAN, 2016 SCC 27, JULY 8, 2016.

FACTS: The accused was charged in December 2008 with an offence contrary to the Controlled Drugs and Substances Act.  His trial ended in February 2013. At the commencement of the trial, the accused brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms seeking a stay of proceedings due to the delay. The trial judge, applying the test set out by the Supreme Court of Canada in R. v. Morin, dismissed the application and the accused was convicted. An appeal to the British Columbia Court of Appeal was dismissed.  The accused appealed to the Supreme Court of Canada.

HELD: The appeal was allowed, the convictions set aside and a stay of proceedings entered.

The Supreme Court decided to reject the framework for section 11(b) that it had set out in R. v. Morin (a balancing of factors).  In its place, the Supreme Court has created a new framework which involves “a presumptive ceiling” beyond which delay from date of the laying of the charge to the actual or anticipated end of trial will be “presumed to be unreasonable”, unless “exceptional circumstances” justify the time period involved.

The Court held that the presumptive ceiling is eighteen months for cases tried in the provincial court, and thirty months for cases tried in the superior court (or cases tried in the provincial court after a preliminary inquiry). Delay attributable to or waived by the accused will not count towards the presumptive ceiling.

The Supreme Court held that once the presumptive ceiling is exceeded, “the burden is on the Crown to rebut the presumption of unreasonableness” on the basis of “exceptional circumstances.” If the Crown cannot do so, a stay will follow. The Supreme Court indicated that exceptional circumstances are circumstances which lie outside the Crown’s control in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.”  Though the list of exceptional circumstances is not closed, the Supreme Court indicated that “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.”  If “the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases” (at paragraphs 46 to 48).

The Supreme Court held that an exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The Court stated that the seriousness or gravity of the offence can no longer be relied upon, nor can chronic institutional delay, to justify delay beyond the presumptive ceiling. In addition, the Supreme Court held that “the absence of prejudice” to the accused can also no longer be used to justify delays after the presumptive ceiling is breached. The Court held only circumstances that are genuinely outside of the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

Defence Delay:

The Supreme Court held that “as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay” (at paragraph 66).  The Court described the manner in which defence delay is to be considered pursuant to section 11(b) of the Charter in the following manner (at paragraphs 63 to 65):

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

Cases Currently in the System:

The Supreme Court indicated that “there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system” (at paragraph 94). However, the Court held that the “new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications” (at paragraphs 96 and 99):

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial (Morin, at p. 802).

A Summary:

The Court summarized the new framework for section 11(b) of the Charter in the following fashion (at paragraph 105):

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.

          [The Court’s Emphasis]


The Supreme Court concluded that in this case the Crown had failed to discharge its burden of demonstrating that the delay was reasonable. Though the case was described by the Supreme Court to be “moderately complex”, the Court concluded that it was not so “exceptionally complex” that it would justify such a delay.


R. v. WILLIAMSON, 2016 SCC 28, JULY 8, 2016.

FACTS: The accused was charged with a sexual offence in January 2009. His trial ended in December 2011. At the commencement of the trial the accused applied for a stay of proceedings pursuant to section 11(b) of the Charter due to the delay. The trial judge dismissed the application and the accused was convicted. The Ontario Court of Appeal allowed the appeal and entered a stay. The Crown appealed to the Supreme Court of Canada.

HELD: The appeal was dismissed. Applying the new framework it set out in Jordan, the Supreme Court held that “although this is a close case, the transitional exceptional circumstance does not apply and, therefore, the delay is unreasonable. A variety of factors support this conclusion” (at paragraphs 26 to 30):

First, the case against Mr. Williamson was straightforward. It involved the evidence of one complainant, one police officer, a videotaped police interview of Mr. Williamson, and the testimony of Mr. Williamson himself. His trial ultimately took 13 days — six days for pre-trial applications (two of which were devoted to the s. 11(b) application), and seven days for the trial proper. This was by no means a complex case. Indeed, the trial judge estimated the total inherent time requirements of the case as being approximately eight months.

Second, the 25-month institutional delay found by the Court of Appeal exceeded the upper end of the Morin guidelines by roughly seven months. Specifically, in the Provincial Court, Mr. Williamson twice attended preliminary hearing dates, only to be turned away because of scheduling issues — even though the Crown appears to have been aware of some of them in advance. The trial judge was rightly concerned about the loss of the two preliminary inquiry dates, about which he wrote: “The accused and his lawyer travelled from Ottawa on both of these dates without prior notice that the proceedings would be adjourned. This is most unfortunate and of concern to this court and relevant to the 11(b) application” (para. 14 (CanLII)). All told, it took approximately a year to complete the preliminary inquiry.

In the Superior Court, while it was reasonable to expect some additional delay in scheduling the trial due to the shortage of jury trial courtroom time in Kingston, the Crown appears to have been content to accept the resulting institutional delay, demonstrating no effort to mitigate it. This is particularly troubling because significant delay had already elapsed in bringing this matter to trial: the problems in the Superior Court transpired directly following the considerable difficulties experienced in the Provincial Court. In this regard, we note that for pre-trial applications — which consumed about half of the total trial time — a jury courtroom was not required. The record does not disclose whether the Crown could have been successful if it had attempted to expedite the trial. However, the point is simply that the Crown made no effort. As the Court of Appeal wrote, “the Crown … [did not take] seriously the obligation to bring this relatively straightforward case to trial in a reasonable time” (para. 67).

Third, the Crown’s lack of initiative is in contrast to Mr. Williamson’s repeated efforts to expedite the proceedings. As mentioned, defence counsel wrote to Crown counsel after the preliminary inquiry was first adjourned in November 2009, stating that the defence was anxious to move forward with the matter. Defence counsel raised the delay issue again when the preliminary inquiry was adjourned a second time in February 2010. Further, the defence sought earlier dates for the preliminary inquiry, indicating its desire to move forward expeditiously. The defence also cooperated with the Crown to streamline the evidence and to use court time efficiently during the preliminary inquiry. All of these facts demonstrate that, as the Court of Appeal observed, “the defence was diligent in attempting to move the matter along” (para. 67).

Ultimately, we agree with the Court of Appeal that, while the s. 11(b) question in this case is “very difficult” (para. 64), looking at the big picture, the previous state of the law cannot justify the nearly three years it took to bring Mr. Williamson to trial on relatively straightforward charges. As the Court of Appeal observed, while the crimes committed by Mr. Williamson are very serious, “the balance weighs in favour of [his] interests in a trial within a reasonable time, over the societal interest in a trial on the merits” (para. 68). Although Mr. Williamson did not suffer significant prejudice, the case was simple, the Crown did little to combat the substantial institutional delay that plagued the prosecution, and Mr. Williamson was reasonably proactive in attempting to move the matter along. Not even the absence of significant prejudice to Mr. Williamson’s Charter-protected interests can stretch the bounds of reasonableness this far.