Breach Within the Presumptive Ceiling

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General Principles

The Jordan framework allows for a finding of a breach of s. 11(b) even where the presumptive ceiling has not been reached.[1]

It has been suggested that the court may still stay a charge within the Jordan time limitation where the delay is "shocking, inordinate and unconscionable".[2]

A stay is still available while the period of time is within the ceiling, so long as the defence can establish:[3]

  1. "it took meaningful steps to demonstrate a sustained effort to expedite the proceedings", and
  2. "the case took markedly longer than it reasonably should have".

The burden is upon the defence to show that it "took meaningful, sustained steps to expedite the proceedings".[4]

Rarity of Under-Ceiling Breaches

A stay within the presumptive ceiling should be considered "rare" and "limited to clear cases".[5]

Reasonable Time Requirement

The reasonable time requirement will depend on factors including: [6]

  1. complexity of the case;
  2. local considerations;
  3. Crown efforts to expedite the proceedings.

Local considerations should involve the judge "employ[ing] the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances."[7]

  1. R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at paras 82 to 91
  2. R v KGK, 2019 MBCA 9 (CanLII), per Cameron JA (2:1), at para 174
  3. Jordan, ibid., at paras 48, 82 to 83, 105
  4. Jordan, supra, at para 84
  5. Jordan, ibid., at paras 48, 69
  6. Jordan, supra, at para 87
  7. Jordan, supra, at para 89

"Meaningful" and "Sustained" Steps

For a breach to be found when within the presumptive ceiling the defence must show "initiative" through "meaningful and sustained steps" to be tried quickly.[1]

The exercise of determining whether appropriate steps were taken requires that the judge to "consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible".[2]

The defence are expected to act "reasonably" not perfectly".[3]

To look for meaningful and sustained steps, the court should consider:[4]

  1. attempt to set earliest possible hearing dates;
  2. being cooperative and responsive to the Crown and court
  3. put Crown on notice when delay is becoming a problem;
  4. conduct applications reasonably and expeditiously.
Example of Appropriate Steps

In a given case, the accused can express an intention to expedite the case in any number of methods including:[5]

  • "At the set date appearance, [accused] could ... ask[] the court to direct that the trial co-ordinator find earlier dates."
  • "counsel [could] point out that he was in custody on these charges or in any way emphasize his custodial status."
  • "If ... stuck with accepting [later] dates, [counsel] could ... ask[] that the case be put on a wait list for consideration of earlier dates if they became available."
  • Counsel "could ... ask[] for the case to return periodically to check for any newly available dates."
  • Counsel could seek "the assistance and co-operation of Crown counsel in getting earlier dates."
  • Counsel could make "reasonable admissions – such as continuity – that would have shortened the time requirements of the case."
Prejudice as a Factor

Where the ceiling is breached, prejudice to the accused is not relevant.[6] However, it is relevant to analysis for the finding of a breach where the ceiling has not been surpassed.[7]

  1. R v Jordan, 2016 SCC 27 (CanLII), at to 86 para 84 to 86
  2. Jordan, ibid., at para 84
  3. Jordan, ibid., at para 85
  4. Jordan, ibid.(defence must show that they "attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously")
  5. R v Carman, 2017 ONCJ 11 (CanLII), per Duncan J, at para 30
  6. Jordan, supra, at paras 81, 109 to 110
  7. R v Lai, 2018 BCSC 867 (CanLII), per Schultes J, at para 236
    R v Patrois, 2018 ONSC 934 (CanLII), per R Smith J, at para 61
    R v Hammer, 2017 BCPC 377 (CanLII), per Keyes J, at para 91
    R v Jeyakanth, 2017 ONCJ 31 (CanLII), per Henschel J, at paras 31 to 42
    R v Basha, 2017 ONSC 337 (CanLII), per Maranger J
    R v Ching, 2016 ONSC 7533 (CanLII), per Ducharme J, at para 21
    R v Akumu, 2017 BCSC 896 (CanLII), per Fisher J, at para 148
    R v Bamilla, 2017 ABCA 347 (CanLII), per Watson JA, at para 65
    R v Mitchell, 2017 ABQB 717 (CanLII), per Yamauchi J, at para 50
    R v Tetreault, 2017 ABQB 349 (CanLII), per Renke J, at para 87
    R v Grant, 2017 MBQB 39 (CanLII), per Toews J, at para 44
    R v Mebrahtu, 2017 MBQB 59 (CanLII), per Greenberg J, at paras 36 to 39
    R v Manh, 2016 ONSC 6970 (CanLII), at para 39
    R v Maione, 2016 ONSC 7207 (CanLII), per Varpio J, at para 39
    R v Isaacs, 2016 ONSC 6214 (CanLII), per Lemay J, at paras 186 to 188

See Also