What is the legal test for determining whether the criminal justice system has failed to meet the Charter’s obligations under s. 11(b) of the Charter of Canada?

In Mills, Lamer, J., in establishing a standard to be used in measuring this factor stated: “Adoption in Canadian law of the third type of reason outlined by Mr. Justice Powell, the ‘more neutral reason’, without limits or ceilings would lead to unacceptable results, as it would amount to little more than affixing a constitutional seal of approval upon the status quo. Indeed, the problem of systemic delay, that is, delay attributable to the fault of no specific individual actor or actors within the criminal justice system, is the acid test of s. 11(b). “In many ways, the problem of systemic delay poses one of the first significant challenges to this court’s interpretation and application of the Charter. Although other Charter issues have, of course, been resolved and Lord Sankey’s famous passage in Edwards v. Attorney General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124 at 136 has been oft cited (see, e.g., Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357 at 365), none of these has yet had such significant consequences for the administration of justice. Under s. 11(b), the courts cannot simply admonish the executive or legislative branches for failure to meet the requirements of the Charter; we must now look to ourselves and determine whether the judiciary is adequately responding to the demands of the Charter as well. Although all branches of government have a measure of responsibility, the judiciary must play a central role in ensuring that the right to be tried within a reasonable time is not frustrated by systemic delay. “Our legislators have, by the entrenchment of s. 11(b), established as a fundamental societal priority the maintenance of an effective and prompt system for the administration of criminal justice. There can be no assumption that the constitutional right to be tried within a reasonable time must conform to the status quo; rather, it is the system for the administration of criminal justice which must conform to the constitutional requirements of the Charter. We cannot shrink from our task of interpreting the Charter in full and fair manner, even when, and perhaps especially when, we are confronted with the possibility of resulting significant institutional adjustment.”