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Prof. Sewrattan – September 18 – Jordan, 2016 SCC


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Joint Reasons for Judgment: Moldaver, Karakatsanis, and Brown JJ (Abella and Côté JJ, concurring)
I: Introduction – (0:00:42)
II: Facts – (0:03:26)
III: Judgments Below – (0:07:12)
A: British Columbia Supreme Court – (0:07:15)
B: British Columbia Court of Appeal – (0:09:31)
IV: Analysis – (0:10:07)
A: The Right to Be Tried Within a Reasonable Time Is Important to Individuals and Society as a Whole – (0:10:09)
B: Problems With the Current Framework – (0:14:40)
V: A New Framework for s. 11(b) Applications – (0:23:54)
A: Summary – (0:23:59)
B: The Presumptive Ceiling – (0:25:14)
C: Accounting for Defence Delay – (0:30:26)
D: Above the Ceiling — Presumptively Unreasonable Delay – (0:34:17)
E: Below the Presumptive Ceiling – (0:42:59)
1: Defence Initiative — Meaningful and Sustained Steps – (0:44:04)
2: Reasonable Time Requirements of the Case — Time Markedly Exceeded – (0:46:29)
F: Applying the New Framework to Cases Already in the System – (0:48:23)
G: Concluding Comments on the New Framework – (0:56:39)
VI: Application to This Case – (1:05:45)
Reasons Concurring in the Result: Cromwell J, concurring (McLachlin CJ and Wagner and Gascon JJ, concurring) – (1:16:55)
I: Introduction – (1:17:03)
A: Overview – (1:17:05)
B: The Nature of the s. 11(b) Right – (1:21:44)
II: The Analytical Framework – (1:27:32)
A: Is an Unreasonable Delay Inquiry Justified? – (1:29:14)
B: What Is a Reasonable Time for the Disposition of a Case Like This One? – (1:29:56)
1: Institutional Delay – (1:31:21)
2: The Inherent Time Requirements of the Case – (1:34:40)
3: Conclusion on Objectively Reasonable Time Requirements – (1:41:44)
C: How Much of the Delay That Actually Occurred Counts Against the State? – (1:42:48)
1: Delay Attributable to the Accused – (1:43:45)
2: Extraordinary and Unavoidable Delays That Should Not Count Against the State – (1:48:11)
D: Was the Delay That Counts Against the State Unreasonable? – (1:48:33)
1: Can the Delay Beyond What Would Have Been Reasonable Be Justified? – (1:49:09)
2: The Role of Prejudice in the Analysis – (1:50:58)
3: Extraordinary Reasons for the Delay – (1:53:42)
4: Are There Especially Strong Societal Interests in the Prosecution on the Merits of the Case? – (1:55:00)
E: Summary of the Analytical Framework – (1:57:06)
III: Application – (1:59:05)
A: Facts – (1:59:19)
B: Judicial History – (2:01:02)
1: British Columbia Supreme Court – (2:01:05)
2: British Columbia Court of Appeal – (2:04:06)
C: Analysis – (2:05:52)
1: Is an Unreasonable Delay Inquiry Justified? – (2:06:13)
2: What Is a Reasonable Time for the Disposition of a Case Like This One? – (2:06:28)
3: How Much of the Delay That Actually Occurred Counts Against the State? – (2:07:38)
4: Was the Delay That Counts Against the State Unreasonable? – (2:09:07)
D: Other Issues Raised – (2:10:00)
E: Conclusion – (2:11:59)
IV: The Approach of Justices Moldaver, Karakatsanis and Brown – (2:12:05)
A: Reasonableness Cannot Be Captured by a Number – (2:13:18)
B: Creating Presumptive Ceilings for Reasonableness Is a Legislative, Not a Judicial Task – (2:20:47)
C: The Proposed Presumptive Ceilings Are Not Supported by the Record – (2:24:07)
D: There Is a Significant Risk of Negative Consequences – (2:29:52)
E: The Promised Simplicity of the Ceilings Is Likely Illusory – (2:36:27)
F: Conclusion – (2:40:49)
V: Disposition – (2:41:39)
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