Right to a Trial Within a Reasonable Time

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 92662)

General Principles

The right to a trial within a reasonable time is guaranteed by s. 7 and 11(b) of the Charter.

Charter Right to Reasonable Time to Trial

Section 11(b) of the Canadian Charter entitles any "person charged with an offence ... the right ... to be tried within a reasonable time". Where there is a breach of this right, the available remedy to a court is a stay of proceedings.

History

In 2016, the Supreme Court of Canada re-framed the analysis for s. 11(b) by setting presumptive ceilings of 18 and 30 months depending on defence election. The new "Jordan" analysis removed from consideration the prejudice to the accused and the seriousness of the offence.[1]

  1. see R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ

Purpose

The objectives of both s. 7 and 11(b) of the Charter include ensuring "the fair and timely operation of the criminal justice system."[1] Timeliness is "one of the of the hallmarks of a free and democratic society."[2]

The right protects both individual rights and societal rights.[3]

Section 11(b) protects three individual rights:[4]

  • the accused's right to security of person by minimizing the anxiety and stigma of criminal proceedings;
  • the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and
  • the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

It also protects societal rights:[5]

  • the public's interest in having our laws enforced by having those who break the law tried quickly;
  • the public's interest in having those accused of crime dealt with fairly; and

Timely trials also affect societal interests by benefiting victims and witnesses, and instills public confidence in the administration of justice.[6]

Jordan Framework

The new framework is designed in part to "do away with prejudice as an express factor in assessing delay." It was considered "confusing, hard to prove, and highly subjective."[7] It does not, however, ignore the existence of prejudice, it simply creates a legal presumption of prejudice once the ceiling has been breached.[8]

The reason also for the change was to address the "culture of complacency" among Crown, defence and courts that have developed in modern years.[9] This culture is exhibited in delay causing conduct, including: Jordan, supra, at para 40

  • unnecessary procedures;
  • unnecessary adjournments;
  • inefficient practices by all parties; and
  • inadequate institutional resources.

The message from Jordan is that “all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion.”[10]

Judges are charged with curtailing delay and changing courtroom culture.[11] Practices causing delay that were tolerated are no longer permitted. This can include denying defence adjournments where it could result in unacceptably long delay despite it being time attributable to defence. [12]

  1. R v Dias, 2014 ABCA 402 (CanLII), 317 CCC (3d) 527, per curiam
    R v Sapara, 2001 ABCA 59 (CanLII), 41 CR (5th) 356, per Russell JA
  2. Jordan, infra, at para 1
    R v KGK, 2020 SCC 7 (CanLII), 61 CR (7th) 233, per Moldaver J, at para 25 ("Section 11(b) of the Charter provides that any person charged with an offence has the right . . . to be tried within a reasonable time. This provision reflects and reinforces the notion that timely justice is one of the hallmarks of a free and democratic society"[quotation marks removed])
  3. KGK, ibid., at para 25
    R v KJM, 2019 SCC 55 (CanLII), 381 CCC (3d) 293, per Moldaver J, at para 38 ("This right serves both individual and societal interests...")
  4. R v Qureshi, 2004 CanLII 40657 (ON CA), 190 CCC (3d) 453, per Laskin JA, at paras 8 to 10
    KGK, ibid., at para 25 and 27
    KJM, supra, at para 38 ("At the individual level, it protects the accused’s “liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence”")
    R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45, per McLachlin J, at para 19 ("The next question is whether the phrase “tried within a reasonable time” in s. 11(b) is capable of extending to sentencing. A purposive reading suggests that “s. 11(b) protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final”: R v Rahey, [citation removed], at p. 610 (emphasis added), per Lamer J., Dickson C.J. concurring. In the same case La Forest J., with whom McIntyre J. concurred, stated that “tried” means not “brought to trial”, but “adjudicated” (p. 632). Since the “outcome” of a criminal case is not known until the conclusion of sentencing, and since sentencing involves adjudication, it seems reasonable to conclude that “tried” as used in s. 11(b) extends to sentencing.")
  5. Qureshi, ibid., at paras 8 to 10
  6. KGK, supra, at para 25
    KJM, supra, at para 38 ("At the societal level, “[t]imely trials allow victims and witnesses to make the best possible contribution to the trial, and minimize the ‘worry and frustration [they experience] until they have given their testimony’”, and permit them to move on with their lives (see Jordan, at paras. 23-24, citing Askov, at p. 1220). Society also has an interest in seeing that citizens accused of crimes are treated humanely and fairly (see Morin, at p. 786), and timely trials help maintain the public’s confidence in the administration of justice, which is “essential to the survival of the system itself” (Jordan, at paras. 25-26). “In short, timely trials further the interests of justice” (ibid., at para. 28).")
  7. R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 35
    R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ
  8. KN, ibid., at para 35
    Jordan, supra, at para 54
  9. Jordan, supra, at paras 4, 40, and 135
    R v KGK, 2020 SCC 7 (CanLII), 61 CR (7th) 233, per Moldaver J, at para 1 (the framework was "designed to overcome a culture of complacency that had grown in the criminal justice system and was causing excessive delays in bringing accused persons to trial. ")
  10. R v Thanabalasingham, 2020 SCC 18 (CanLII), 447 DLR (4th) 310, per curiam, at para 9
  11. Thanabalasingham, ibid., at para 9
  12. Thanabalasingham, ibid., at para 9

Presumptive Ceiling

Presumptive Breach

There will be a presumptive breach of s. 11(b) of the Charter where the delay between the date of laying of charges and the conclusion of the trial is greater than the presumptive ceiling.[1]

Standard Duration

The duration of the presumptive ceiling will depend on the level of court in which the matter will be heard. The "Jordan" framework sets a presumptive acceptable period of delay between charge and conclusion of trial is 18 months for provincial court trials and 30 months for superior court trial.[2]

The period is calculated from the time of charging until the actual or anticipated end of trial, minus defence delays.[3] Where the ceiling is exceeded there is a presumption of unreasonablness which will amount to a breach of s. 11(b) of the Charter.[4]


Ceiling Where there is a Direct Indictment

The 30 month ceiling is not affected by the Crown decision to circumvent a preliminary inquiry through the use of a direct indictment under s. 577 of the Code.[5]

This fixed time is not necessarily "free time" for the Crown as it will still be a factor to consider in a non-presumptive challenge.[6]

It has been suggested that Crown should seriously consider preferring a direct indictment in order to engage in the longer ceiling duration.[7]

Ceiling Where Crown Consents to Re-Election

It is unsettled what duration applies where the Crown consents to a re-election. One approach says that on re-election shortly after the matter commences in Supreme Court will mean an 18 month ceiling.[8] A second approach says that the 30 month ceiling will continue despite a re-election.[9]

Ceiling Where the Matter is Sent for Re-trial

There is a division in cases as to whether the normal ceilings apply. There is of course support for the ceiling "clock" resetting after the matter is sent back for trial.[10]

Another approach says the 18/30 month presumptive ceiling does not apply when a matter is returned for re-trial after a successful appeal as all re-trial matters should be prioritized over regular matters.[11] Few courts have set a number. With only some suggestion of between 5 to 12 months.[12]

There is only a little support for the view that the ceilings should apply only once regardless of the number of re-trials.[13]

Ceiling Where the Accused is in Custody

The dominant view is that the ceiling applies whether or not the accused is in custody.[14]

Rebutting the Presumptive Ceiling

The presumption can be rebutted where the Crown can show exceptional circumstances.[15]

  1. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ
  2. Jordan, supra (Judgement was rendered on July 8, 2016)
  3. Jordan, ibid., at paras 47 and 48
  4. Jordan, ibid., at para 68
  5. R v Carter, 2018 ABQB 657 (CanLII), 418 CRR (2d) 133, per Poelman J
    R v Jones, 2018 ABQB 691 (CanLII), per Nielsen J
    R v Wilson, 2017 ABQB 68 (CanLII), per Mahoney J, at paras 71 to 78
    R v Nyznik, 2017 ONSC 69 (CanLII), per Nordheimer J
    R v Nasery, 2017 ABQB 564 (CanLII), per Gates J
    R v Schenkels, 2017 MBCA 62 (CanLII), 140 WCB (2d) 593, per Hamilton JA
    R v Wilson, 2017 ABQB 68 (CanLII), per Mahoney J
    R v Cabrera, 2016 ABQB 707 (CanLII), 372 CRR (2d) 62, per Poelman J
  6. Nyznik, supra, at para 31
  7. R v Manasseri, 2016 ONCA 703 (CanLII), 344 CCC (3d) 281, per Watt JA ("the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.")
  8. R v Teeti, 2018 ABPC 207 (CanLII), per MacDonald J
  9. R v Kaulback, 2018 NLCA 8 (CanLII), per Welsh JA
    R v DMS, 2016 NBCA 71 (CanLII), 353 CCC (3d) 396, per Quigg JA
  10. R v Ricard, 2017 MBQB 11 (CanLII), MJ No 46
    R v Gakmakge, 2018 QCCS 3279 (CanLII)
    R v Bowers, 2017 NSPC 21 (CanLII), per Tax J
  11. R v MacIsaac, 2018 ONCA 650 (CanLII), 365 CCC (3d) 361, per Hushcroft JA, at para 27
    R v Creglia, 2018 ONCJ 262 (CanLII), per Pringle J, at para 45
    R v Crant, 2018 ONSC 1479 (CanLII), per Nakatsuru J
    R v Bruno, 2018 ONCJ 627 (CanLII), per Pringle J
    Crowchild, supra
    R v Ferstl, 2017 ABPC 266 (CanLII), per Fradsham J
  12. Crowchild, supra
    Creglia, supra
  13. R v Windibank, 2017 ONSC 855 (CanLII), per Howard J
    R v Wu, 2017 BCSC 2373 (CanLII), per Watchuk J
    cf. R v Crowchild, 2018 ABQB 368 (CanLII), per Hall J, at para 21
  14. R v Carman, 2017 ONCJ 11 (CanLII), per Duncan J, at para 17
  15. Jordan, ibid., at paras 47, 48, 69 to 81
    see Exceptions below

Ceiling for Youth Accused

Prior to Jordan, it was well understood that there are no special rights to speedy trial different from those granted to adult accused.[1] However, it has been made clear that there is an expectation that youth court matters will reach a conclusion more quickly than adult ones, and the analysis should be different.[2] Some pre-Jordan courts have recommended guidelines within 5 or 6 months of charge or up to 15 months from charge.[3]

The shorter time to trial is necessary so that:[4]

  1. the young person can better appreciate the connection between behaviour and consequences;
  2. the distorted perception of time by a young person compared to adults;
  3. the need to deal with dispositions speedily while youth is still in their formative years.

There is some suggestion that for youth charged under the Youth Criminal Justice Act, the presumptive ceiling should be set at 12 months[5] , 15 months[6] , and 16 months.[7]

Others have suggested that there should be no change to the presumptive ceiling, rather can be dealt with an a non-presumptive breach.[8]

  1. R v GCM, 1991 CanLII 7057 (ON CA), [1991] OJ No 885 (CA), per Osborne JA, at para 45
    R v TR, 2005 CanLII 18709 (ON CA), [2005] OJ No 2150 (CA), per MacPherson JA
  2. GCM, supra, at para 23 ("youth court proceedings should proceed to a conclusion more quickly than those in the adult criminal justice system. Delay, which may be reasonable in the adult criminal justice system, may not be unreasonable in the youth court")
  3. GCM, supra, at para 45
    TR, supra
  4. GCM, supra, at para 115
    TR, supra
    R v DS, 1991 CanLII 7055 (ON CA), [1991] OJ No 1220 (CA), per Galligan JA, rev'd on other grounds at 1992 CanLII 58 (SCC), per Sopinka J
  5. R v DA, 2018 ONCJ 143 (CanLII), per O’Marra J
  6. R v ZN, 2018 ONCJ 501 (CanLII), per Webber J, at paras 124, 132 to 133 R v JM, 2017 ONCJ 4 (CanLII), 344 CCC (3d) 217, per Paciocco J, at paras 136 to 138 - recommends 15 month ceiling
  7. R v SM, 2016 ONCJ 793 (CanLII), per Gattrell J
  8. R v DMB, 2018 ONCJ 15 (CanLII), per Christie J
    R v RV, 2017 ONCJ 305 (CanLII), per Wadden J
    R v KM, 2018 ONCJ 8 (CanLII), per Vaillancourt J

Obligations on the Crown, Defence, and Judges

All parties, including the courts, have a "responsibility to ensure that criminal proceedings are carried out in a manner ... consistent with" the right under s. 11(d).[1]

  1. R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 1

Crown Role

The Crown has an obligation to bring an accused to trial[1] and is also obligated to ensure that "the trial proceedings, once engaged, are not unduly delayed."[2]

It is also observed that "each charge that should not have been laid or pursued, deprives other worthy litigants of timely access to the courts."[3]

The Crown duties include:

  • "making reasonable and responsible decisions regarding who to prosecute"[4]
  • "making reasonable and responsible decisions" regarding choices of offences to prosecute[5]
  • "delivering on their disclosure obligations promptly with the cooperation of police,"[6]
  • "creating plans for complex prosecutions";[7]
  • use court time efficiently;[8]
  • use discretion to resolve cases;[9]
  • making "reasonable admissions";[10]
  • "streamlining the evidence";[11]
  • "anticipating issues that need to be resolved in advance."[12]

Where there is a re-trial the Crown has an obligation to expedite the matter to trial.[13] Expediting the matter can include agreeding to non-consecutive trial dates even where it is "suboptimal."[14]

  1. R v Heaslip, 1983 CanLII 3519 (ON CA), 9 CCC (3d) 480, per Martin JA, at p. 321
    R v Adam et al, 2006 BCSC 350 (CanLII), 70 WCB (2d) 1008, per Romilly J The crown has an obligation to"bring the accused to trial within a reasonable time”
    R v Godin, 2009 SCC 26 (CanLII), [2009] 2 SCR 3, per Cromwell J, at para 11
  2. see R v MacDougall, 1998 CanLII 763 (SCC), [1998] 3 SCR 45, per McLachlin J, at para 49
  3. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 43
  4. Jordan, supra, at para 138 ("For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what,...")
  5. Jordan, supra, at para 138 ("For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what,...")
  6. Jordan, supra, at para 138 ("For Crown counsel, this means making reasonable and responsible decisions ... delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases.")
  7. Jordan, supra, at para 138
  8. Jordan, supra, at para 138
  9. Jordan, supra, at para 138
  10. Jordan, supra, at para 138
  11. Jordan, supra, at para 138
  12. Jordan, supra, at para 138
  13. R v Creglia, 2018 ONCJ 262 (CanLII), per Pringle J, at para 45
    R v MacIsaac, 2018 ONCA 650 (CanLII), 365 CCC (3d) 361, per Huscroft JA, at paras 27, 59 to 65
    R v GVE, 2016 ONCJ 14 (CanLII), per Schwarzl J, at para 76
  14. MacIsaac, supra

Defence Counsel Role

The defence counsel's duties include:

  • "actively advancing their clients’ right to a trial within a reasonable time"[1]
  • "collaborating with Crown counsel when appropriate"[2]
  • "using court time efficiently"[3]
  • making "reasonable admissions" [4]
  • "streamlining the evidence"[5]
  • "anticipating issues that need to be resolved in advance."[6]
  1. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 138 ("For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.")
  2. Jordan, supra, at para 138
  3. Jordan, supra, at para 138
  4. Jordan, supra, at para 138
  5. Jordan, supra, at para 138
  6. Jordan, supra, at para 138

Judge Role

Judges role include "changing courtroom culture."[1] This would include denying adjournments even where it may be defence-attributed delay.[2]

Judges should be active to encourage parties to improve efficiencies by means including recommending proceeding "on a documentary record alone."[3]

Screening Applications

Judges should screen application by requiring counsel to prove the merit of an application by written summary of the evidence to show that it has a "reasonable prospect of success". Otherwise the application should be dismissed.[4]

  1. R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 37
    R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 114
  2. Cody, supra, at para 37
  3. Cody, supra, at para 39
  4. Cody, supra, at para 38

Start and End of Jordan Ceiling

Jordan Delay Not Same as Total Delay

The Jordan rule does not represent a departure from the principle that "period of delay to be considered ... is not assumed equivalent to total delay."[1]

While there is a fixed "presumptive ceiling", there may still be compelling "case-specific factors" are still relevant considerations to reasonableness of the delay.[2]

Different Start Times

There are several views on when the "clock" starts for the calculation of delay. The dominant line of cases suggests that the calculation starts at the time of the laying of charges.[3] Many cases rely on the pre-Jordan approach which took the time to start at the laying of charges.[4] The second line of cases suggests that the time begins at the arrest and becoming aware of charges.[5] The rationale in the second line of cases relies on the notion that the police should not be able to seek protection behind their delays and errors in laying a charge reasonably promptly as required under s. 505.[6] There is a variation on the second line of cases which suggests that the time should be at the time the charges are sworn or when they should have been sworn.[7]

End of Clock

Under the presumptive Jordan ceilings, the time period ends once the deliberations begin.[8] The rights under s. 11(b) continues throughout the proceedings, but simply not under the Jordan timetable.[9]

Under the pre-Jordan framework, the delay clock ended only after sentencing.[10]

Effect of Crown Stay

A Crown of proceedings will stop the Jordan clock absent of element of "illegitimacy or manipulation."[11]

Effect of Guilty Plea

The right against delay is extinguished upon a guilty plea as it constitutes a waiver of trial rights.[12] The waiver however does not affect the right to speedy sentencing.[13]

  1. R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 20 ("Jordan revised the analytical framework but did not depart from the longstanding principle that the period of delay to be considered on a s. 11(b) application is not assumed to be equivalent to total delay. In both Jordan and R v Cody, 2017 SCC 31, the Court assessed whether the remaining delay — not the total delay — was reasonable.")
  2. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 51
  3. R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594, per McIntyre J, at paras 17, 54
    R v Akumu, 2018 BCCA 297 (CanLII), per Harris JA
    R v Thind, 2018 ONSC 1337 (CanLII), per Coroza J, at paras 55 to 61
    R v Sundralingam, 2017 ONCJ 400 (CanLII), OJ No 3097, per Blacklock J
    R v Isaacs, 2016 ONSC 6214 (CanLII), OJ No 5225, per Lemay J
    R v Ashraf, 2016 ONCJ 584 (CanLII), 367 CRR (2d) 30, per Band J
    R v Gandhi, 2016 ONSC 5612 (CanLII), 133 WCB (2d) 29, per Code J, at para 5 ("In R v Jordan, supra at paras. 49, 61 and 63, the majority held that the “most important feature of the new framework” for s. 11(b) analysis is that “it sets a ceiling beyond which delay is presumptively unreasonable.” The ceiling for an indictable trial in this Court is “30 months from the charge to the actual or anticipated end of trial.” However, the majority went on to hold that “delay attributable to the defence must be subtracted” and that this subtracted period includes both “delay waived by the defence” and “delays caused solely or directly by the defence’s conduct.”")
    R v Rice, 2018 QCCA 198 (CanLII), 44 CR (7th) 83, per Vauclair JA, at para 41
    R v Millar, 2019 BCCA 298 (CanLII), 1 CTC 182, per Fitch JA, at para 80
  4. Kalanj, supra, at paras 17, 54
    R v Nguyen, 2013 ONCA 169 (CanLII), 2 CR (7th) 70, per Watt JA, at para 49
    R v Milani, 2014 ONCA 536 (CanLII), 314 CCC (3d) 101, per van Rensburg JA, at para 25
    R v McHale, 2010 ONCA 361 (CanLII), 256 CCC (3d) 26, per Watt JA, at para 70
    R v Sanghera, 2012 BCSC 711 (CanLII), per Holmes J, at para 39
    R v Carter, 1986 CanLII 18 (SCC), [1986] 1 SCR 981, per Lamer J, at paras 11, 13
    Morin, supra, at para 35
  5. R v Gleiser, 2018 ONSC 2858 (CanLII), per KP Wright J - judge took into calculation three week delay between arrest and laying and information
    R v Albardy, 2018 ONCJ 114 (CanLII), per Doody J, at para 9
    R v Luoma, 2016 ONCJ 670 (CanLII), per Schreck J, at paras 19 to 31
    see also pre-Jordan case of R v Nash, 2014 ONSC 6025 (CanLII), per Bale J, at para 7 ("From the date of the arrest, therefore, the accused was engaged in the criminal justice system. He was an “accused” as defined in section 193 of the Criminal Code, and was required to attend, on particular dates, both at the local police station (pursuant to the Identification of Criminals Act), and in court. ...Notwithstanding that no information had yet been laid, he was therefore subject to constraint, and stood accused before the community of committing a crime. The individual rights that section 11(b) seeks to protect, in particular, the right to security of the person, and the right to liberty, were then placed in jeopardy.")
  6. Luoma, supra
  7. Luoma, supra
  8. R v KGK, 2020 SCC 7 (CanLII), 61 CR (7th) 233, per Moldaver J, at para 23 ("Although the right to be tried within a reasonable time enshrined in s. 11(b) of the Charter extends beyond the end of the evidence and argument at trial, I am of the view that the presumptive ceilings established by this Court in Jordan do not.")
  9. KGK, ibid.
  10. R v MacDougall, 1998 CanLII 763 (SCC), 128 CCC (3d) 483, per McLachlin J, at paras 33 to 37
    R v Gallant, 1998 CanLII 764 (SCC), [1998] 3 SCR 80, per McLachlin J
  11. R v Kanda, 2021 BCCA 267 (CanLII), per Grauer JA
  12. R v Naderi, 1996 CanLII 8168 (ONSC), 40 CRR (2d) 312 (Gen Div), per Marchand J
    R v Lachance, 2002 CMAC 7 (CanLII), 6 CMAR 274, per Letourneau JA
  13. Lachance, ibid.

Jordan Analytical Framework

Three Step Framework

The first step requires the court to "calculat[e] the total delay from the charge to the actual or anticipated end of trial."[1] The second step is to subtract the delay attributable to the defence.[2] The "net delay" is then compared to the presumptive ceilings. The third step will depend on whether the net delay is above or below the ceiling.[3]

Delay Under the Presumptive Ceiling

Where the net delay is below the presumptive ceiling the matter can still be stayed for delay.[4]

The onus is upon the accused to show that the net delay that is under the presumptive ceiling was "unreasonable."[5] This requires that the accused show that:[6]

  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.
Delay Over the Presumptive Ceiling

Where the net delay exceeds the presumptive ceiling, the burden is upon the Crown to establish the "presence of exceptional circumstances" otherwise the proceedings must be stayed.[7]

Recommended Approach

A recommended approach to Jordan analysis involves the following:[8]

  1. Calculate the total time between charge to actual or anticipated conclusion of trial[9]
  2. subtract from the total time, the defence delay, resulting in the "net delay"[10]
  3. compare the net delay to the presumptive ceiling[11]
  4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances [12]. If it cannot rebut the presumption, a stay will follow[13]. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases [14].
  5. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached[15].
  6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable[16].
  7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable[17].
  8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases")[18].
Expectation

One cannot usually take into account events occurring before the charges were laid.[19]

Anticipatory Delay

Anticipatory delay is generally not considered.[20]

Replacement Informations

Where a replacement information is laid charging effectively the same offence as an initial information, the time is still calculated from the time of the first information.[21]

Gap Time

Under the pre-Jordan framework, s. 11(b) does not apply to delays arising from an appeal from conviction (ie. appellate delay).[22]

The time between the discharge of an information by a preliminary inquiry judge and the re-commencement of a charge by a direct indictment does not count as delay time.[23]

Calculating

Where there is cascading delay or rippling-effect resulting from a single small delay can be accounted for in the attribution analysis.[24]

  1. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 60
    R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 21 ("The first step under this framework entails “calculating the total delay from the charge to the actual or anticipated end of trial” (Jordan, at para. 60). In this case, an information was sworn against Mr. Cody on January 12, 2010, and his trial was scheduled to conclude on January 30, 2015. This makes the total delay approximately 60.5 months.")
  2. Jordan, supra, at para 60
    Cody, supra, at para 22 ("After the total delay is calculated, “delay attributable to the defence must be subtracted” (Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then “depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling”")
  3. Cody, supra, at para 22 ("After the total delay is calculated, “delay attributable to the defence must be subtracted” (Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then “depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling”")
    Jordan, supra, at para 67
  4. Jordan, supra, at para 48
    Cody, supra, at para 23 ("If the net delay falls below the 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.")
  5. Jordan, supra, at para 48 ("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.")
    Cody, supra, at para 23 ("If the net delay falls below the 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.")
  6. Jordan, supra, at para 48 ("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.")
    Cody, supra, at para 23 ("If the net delay falls below the 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.")
  7. Jordan, supra, at para 47 ("If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.")
    Cody, supra, at para 24 ("f the net delay exceeds the ceiling,...then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.")
  8. R v Coulter, 2016 ONCA 704 (CanLII), 340 CCC (3d) 429, per Gillese JA, at paras 34 to 41
  9. Jordan, supra, at para 47
  10. Jordan, supra, at para 66
  11. Jordan, supra, at para 66
  12. Jordan, supra, at para 47
  13. Jordan, supra, at para 47
  14. Jordan, supra, at para 71
  15. Jordan, supra, at para 75
  16. Jordan, supra, at para 80
  17. Jordan, supra, at para 48
  18. Jordan, supra, at para 96
  19. R v AK and AV, 2005 CanLII 11389 (ON CA), 195 CCC (3d) 501, per curiam at 162
  20. R v Norman, 1988 CanLII 5407 (NLSCTD), 223 APR 177, per Noel J, at para 7 ("It was an error in law to accept the anticipated delay as a breach of the respondent's right to be tried within a reasonable time")
  21. R v Travassos, [2003] OJ 1877 (ONCJ)(*no CanLII links)
  22. R v Potvin, 1993 CanLII 113 (SCC), [1993] 2 SCR 880, per Sopinka J
  23. R v Milani, 2014 ONCA 536 (CanLII), 314 CCC (3d) 101, per van Rensburg J
  24. R v Pugh, 2021 BCCA 293 (CanLII), per JA, at para 73 ("In R. v. Potter; R. v. Colpitts, 2020 NSCA 9, the court confirmed it appropriate for a judge to assess the “ripple-effect” of developments in a case (at para. 331). As noted at para. 332 of the decision, “[r]elatively small timing delays” that have a “cascading effect” may result in a significant attribution of delay, depending on the circumstances.")
    R v Colpitts, 2020 NSCA 9 (CanLII), 385 CCC (3d) 1, per curiam

Defence Delay

Extraordinary Circumstances

Breach Within the Presumptive Ceiling

Unreasonable Delay in Verdict

It has been suggested that there should be a 5 month ceiling between conviction and sentence.[1]

The reasonableness of the delay in rendering verdict must account for the realities that there are other commitments. The consideration should regard to their workload, different approaches to reasoning, and realities of daily lives.[2]

While there are significant limitations of judicial resources, judges “must work within these institutional restrictions and manage their workloads as efficiently as possible.”[3]

A dangerous offender application is considered an "exceptional circumstance" for the purpose of a delay ceiling.[4]

  1. R v Charley, 2019 ONCA 726 (CanLII) (working hyperlinks pending)
  2. R v KGK, 2020 SCC 7 (CanLII), 61 CR (7th) 233, per Moldaver J, at para 61 (“... a reasonable amount of verdict deliberation time must account for the practical constraints that trial judges face, both individually and institutionally. Reasonableness under s. 11(b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources” ... verdict deliberation time that goes to one case cannot go to another. The appropriate division of time between cases therefore has regard to individual judges’ workloads, different approaches to reasons and reasoning, and the realities of their daily lives (see, e.g., K.J.M., at para. 102). That said, trial judges can and should consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload.“)
  3. KGK, ibid., at para j5zfd
  4. R v Valle-Quintero, 2021 ONCA 390 (CanLII), per curiam, at para 24
    R v McLean, 2020 ONSC 1931 (CanLII) (working hyperlinks pending), at paras. 12-18
    R v JT, 2021 ONSC 365 (CanLII), at para 32

Application to Pre-Jordan Cases / Transitional Exception

See also: Morin Framework (Pre-Jordan 2016)

The "Jordan" framework came into effect on July 8, 2016. It should be applied "contextually and flexibly for cases currently in the system."[1]

Where the administrative guidelines are exceeded it is only a factor to consider and does not automatically compel a breach of s. 11(b) of the Charter.[2]

Courts cannot ignore the delay jurisprudence pre-existing Jordan. Jordan was a revisiting of the framework.[3]

The new framework does not apply strictly to traditional cases since "the analysis must be contextually sensitive to the law and the legal culture that exists at the relevant time."[4]

Burden

The burden is upon the Crown to show that the transitional exception applies.[5]

Standard

The Crown must show that the net time is justifiable on the basis of "reasonable reliance on the law as it previously existed."[6] This includes reliance on the acceptability of the speed of the case under the old rules in light of the old factors such as seriousness of the offence and prejudice to the accused.[7]

Factors that are considered include:[8]

  1. the complexity of the case
  2. the period of delay in excess of the Morin guidelines
  3. the Crown's response to institutional delays
  4. the defence efforts to move the case along
  5. the prejudice to the accused.

Like under the Morin framework, the existence of prejudice may be inferred by the passage of time. [9]

The seriousness of the case also continues to be a factor.[10]

Rarely will the transitional exception be permitted where the case would have failed under Morin.[11]

  1. R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 94
  2. R v Swaminathan, 2016 ONSC 4913 (CanLII), OJ No 4150, per O'Marra J, at para 13
  3. R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 20
  4. R v Porter, 2016 ONSC 7173 (CanLII), per Pomerance J, at para 7
    R v Cabrera, 2016 ABQB 707 (CanLII), 372 CRR (2d) 62, per Poelman J, at para 42
  5. Cabrera, ibid., at para 43
  6. Cabrera, ibid., at para 43
  7. R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 68
  8. R v C(J), 2018 ONCA 986 (CanLII), per curiam, at para 21
  9. R v Rice, 2018 QCCA 198 (CanLII), 44 CR (7th) 83, per Vauclair JA, at para 20
    C(J), supra, at para 45
  10. R v Picard, 2017 ONCA 692 (CanLII), 354 CCC (3d) 212, per Rouleau JA
    R v Regan, 2018 ABCA 55 (CanLII), 359 CCC (3d) 53, per curiam
  11. R v Thanabalasingham, 2020 SCC 18 (CanLII), 390 CCC (3d) 400, per curiam, at para 8

Remedy on Breach

Where a delay is unreasonable under s. 11(b) of the Charter, the only available remedy is a stay of proceedings.[1]

The standard for a stay in only the "clearest of cases" does not apply to s. 11(b) as a stay is the only available remedy.[2]

Where the breach is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.[3]

Postponement of a sentencing hearing can in some circumstances result in mitigation of sentence.[4]

  1. R v Mills, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, per McIntyre J
  2. R v Thomson, 2009 ONCA 771 (CanLII), 248 CCC (3d) 477, per curiam
  3. see Sentencing Factors Relating to the Offender
  4. R v Patterson, 2000 CanLII 16873 (ON CA), 135 OAC 324, per MacPherson JA
    R v KN, [1999] OJ 4572 (ONSC)(*no CanLII links)

Procedure

Judge Cannot Raise Delay

The judge should generally not raise a Charter delay issue on behalf of the accused.[1]

Evidence

The applicant must establish an evidentiary foundation for their application.[2]

Often counsel can draft an agreed statement of fact on the history of proceedings.[3]

The applicant should also file a transcript of the previous proceedings.[4]

Notice

The applicant must give sufficient notice to the Crown to allow them to respond with evidence.[5]

Timing

The trial process should generally be permitted to "run its carefully laid course" before a court should engage in an application under s. 11(b) of the Charter to stay proceedings.[6]

A failure to bring an application under s. 11(b) before or at trial will usually be fatal to the applicant.[7]

  1. R v Foisy, 2000 CanLII 16959 (ON CA), 138 OAC 188, per Finlayson J
  2. R v GCM, 1991 CanLII 7057 (ON CA), 65 CCC (3d) 232, per Osborne J ("Generally, s.11(b) applications are matters for the trial court. For it to succeed, there must be an evidentiary foundation for the application. Absent evidence, the alleged violation cannot be found."
  3. GCM, ibid. ("In many cases, the history of the proceedings will best be dealt with by an agreed statement of fact.")
  4. R v Silveira, [1998] OJ No 1622 (SCJ)(*no CanLII links)
  5. R v Firth, 1992 CanLII 2585 (NS CA), 70 CCC (3d) 376, per Hallett JA
    GCM, supra ("Notice should be given to the Crown. I do not think rigid rules should be established by this court concerning the amount of notice required. It should at least be reasonable - that is, sufficient to give the Crown an opportunity to respond.")
  6. R v Fast, 2016 ONSC 6426 (CanLII), per Leach J, at paras 21 and 22
    R v Spears, 2017 NSPC 17 (CanLII), per Derrick J, at para 21
    R v Colpitts, 2017 NSSC 22 (CanLII), per Coady J
  7. R v Rabba, 1991 CanLII 7073 (ON CA), , 3 OR (3d) 238, per Arbour JA (2:1), at p. 239 (CA) ("the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter.")
    R v Cortes Rivera, 2019 ABCA 62 (CanLII), per Costigan JA, at para 4 (“ In Warring, this Court concluded that the record established the appellant sat on his s 11(b) rights until after he was convicted. The Court found support for this conclusion in R v Rabba ... where the court stated “the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter.””)

Appeals from Jordan Rulings

See also: Appeals Other Than Verdicts or Sentences#Crown Appeal of a Stay of Proceedings or Quashing of Charges

The standard of review of the analysis of the delay factors and allocation of time periods is reviewable on a standard of correctness.[1]

Allocation of Time

The characterization and allocation of time of periods of delay are reviewable on the standard of correctness.[2]

Concessions on Attribution

The appellate court is not bound by "erroneous concessions."[3]

Findings of Fact

Findings of fact underlying the delay however are reviewed on a standard of palpable and overriding error.[4]

Decision to Stay Owed Deference

The ultimate decision to stay a proceeding as a remedy under s.24(1) of the Charter on finding of a breach is owed deference.[5] However, it is a question of law reviewable on a standard of correctness.[6]

Appellate Consideration ab initio

Appellate courts should reluctant to make findings of s. 11(b) where the trial judge had not considered it on the merits.[7]

  1. R v Christhurajah, 2019 BCCA 210 (CanLII), 376 CCC (3d) 423, per curiam, at paras 110 to 113
    R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 13
    R v Khan, 2011 ONCA 173 (CanLII), 270 CCC (3d) 1, per Karakatsanis JA, at para 18, appeal refused [2011] SCCA No 195
    R v Schertzer, 2009 ONCA 742 (CanLII), 248 CCC (3d) 270, per curiam, at para 71, appeal refused [2010] SCCA No 3
    R v Williamson, 2014 ONCA 598 (CanLII), 314 CCC (3d) 156, per Lauwers JA (the characterization of delay is the application of a legal principle to fact)
    R v Komstantaskos, 2014 ONCA 21 (CanLII), 298 CRR (2d) 310, per curiam, at para 5
    R v D(C), 2014 ABCA 333 (CanLII), 316 CCC (3d) 457, per curiam, at para 5
    R v Vassell, 2015 ABCA 409 (CanLII), 331 CCC (3d) 97, per curiam (2:1), at paras 5 or 7
    R v Widdifield, 2014 BCCA 170 (CanLII), 354 BCAC 237, per Frankel JA, at para 76
  2. R v Horner, 2012 BCCA 7 (CanLII), 283 CCC (3d) 453, per Ryan JA, at para 70
    R v KN, 2018 BCCA 246 (CanLII), 362 CCC (3d) 288, per Fenlon JA, at para 13
    R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325(complete citation pending)
  3. R v Long, 2023 ONCA 679 (CanLII) per Pepall JA at para 38 ("It is well established that on an appeal from a decision on a s. 11(b) application, this court is not bound by erroneous concessions")
    R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at para. 63(complete citation pending)
    R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 31
    R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19(complete citation pending)
    R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 10
    R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 102(complete citation pending)
    Jurkus, supra, at para 71
  4. Schertzer, supra, at para 71
    D(C), supra, at paras 5 to 6
    Horner, supra, at para 70
  5. R v Bellusci, 2012 SCC 44 (CanLII), [2012] 2 SCR 509, per Fish J
  6. R v Conway, 1989 CanLII 66 (SCC), [1989] 1 SCR 1659, per L'Heureux‑Dubé J, at p. 1676
    Widdifield, supra
  7. R v Imola, 2019 ONCA 556 (CanLII), 439 CRR (2d) 352, per curiam, at para 24 ("Appellate courts should be reluctant to determine a s. 11(b) application where a trial court has not done so on its merits")
    R v Rabba, 1991 CanLII 7073 (ON CA), , 3 OR (3d) 238, per Arbour JA

Delay Outside of Jordan Framework

The temporal scope of 11(b) of the Charter of Rights and Freedoms includes the verdict deliberation time, which is not part of the Jordan framework.[1]

Sentencing Delay

There has been proposed a separate ceiling for sentencing as being set at 5 months.[2] The suggested remedy for breach of this ceiling is not a stay of proceedings but rather sentence mitigation.[3]

The 5 month ceiling will not be counted as including time necessary to litigate a dangerous offender application regardless of its outcome.[4]

  1. R v KGK, 2020 SCC 7 (CanLII), 61 CR (7th) 233, per Moldaver J, at para 26 ("On this appeal, no one disputes the temporal scope of s. 11(b). Specifically, the parties agree that the right to be tried within a reasonable time encompasses verdict deliberation time.")
  2. R v Charley, 2019 ONCA 726 (CanLII), 147 OR (3d) 497, per Doherty JA, at para 3
  3. R v Hartling, 2020 ONCA 243 (CanLII), 150 OR (3d) 224, per Benotto JA
  4. R v JC, 2021 ONCA 131 (CanLII), 70 CR (7th) 38, per Paciocco JA

Morin Framework (Pre-Jordan, 2016 SCC 27)

See Also