Defence Delay Under Jordan Framework

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This page was last substantively updated or reviewed March 2023. (Rev. # 88816)

General Principles

The second step of the Jordan framework concerns deduction of time due to defence-caused delay.[1] This concerns any action or inaction that "solely or directly" caused the delay [2] or defence action that is illegitimate as it is not done to respond to the charges.[3]

Any delay that is the cause of the defence will not be used as time against the calculation of the presumptive ceiling.[4]

Defence counsel is prohibited from benefitting from its own conduct that causes delay.[5]

Defence delay takes one of two forms. Either it is a defence waiver or it is a delay caused by the conduct of the defence.[6]

The Court may consider both the defence's decision to take a particular step and the manner in which the particular step was taken to decide whether to attribute delay to defence.[7]

Courts can consider the timeliness of filing of defence applications.[8] As well as the number, strength, importance, and proximity to the Jordan ceiling.[9]

Inefficiencies in the defences approach to their applications will also be of possible attribution.[10]

Judges should not "second-guess" the steps taken by defence counsel in responding to the charges.[11]

Defence Delay That is Not to be Counted

The Jordan framework recognizes preparation as a necessary delay and does not go into the calculation.[12]

Any "actions legitimately taken to respond to the charges fall outside ... defence delay."[13]

It has been suggested that normally a 1.5 month benchmark should be sufficient time for defence to prepare for a summary conviction case when taking into account their other work.[14]

Appellate Review

Attribution of defence delay is "highly discretionary" and so should be accorded deference.[15]

The process of according delay to one party or another is not given deference.[16] Efforts to expedite matters are determined on a standard of correctness.[17]

  1. ↑ R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 28
  2. ↑ Cody, ibid., at paras 28 and 30
  3. ↑ Cody, ibid., at para 30
  4. ↑ R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 21 (“Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice.")
  5. ↑ Jordan, supra, at para 60 ("The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” ")
  6. ↑ R v Coulter, 2016 ONCA 704 (CanLII), 340 CCC (3d) 429, per Gillese JA, at para 42
    Cody, supra, at paras 27, 30
  7. ↑ Cody, supra, at para 32 ("Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. ... Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.")
  8. ↑ Cody, supra, at para 32 ("The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.")
  9. ↑ Cody, supra, at para 32 ("The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.")
  10. ↑ Cody, supra, at para 32
  11. ↑ Cody, supra
    R v Mullen, 2018 ABQB 831 (CanLII), per Michalyshyn J, at para 47
  12. ↑ Cody, supra, at para 29 ("this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case")
    Jordan, supra, at para 65, also 53 and 83 ("defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.",
  13. ↑ Cody, supra, at para 29]
    Jordan, supra, at para 65 ("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.")
  14. ↑ R v Zikhali, 2019 ONCJ 24 (CanLII), 428 CRR (2d) 44, at para 33
  15. ↑ Cody, supra, at para 31] ("The determination of whether defence conduct is legitimate is ... highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.")
    R v Ellis, 2020 NSCA 78 (CanLII), per Derrick JA, at paras 103 to 105
  16. ↑ R v Jurkus, 2018 ONCA 489 (CanLII), 363 CCC (3d) 246, per Fairburn JA, at paras 25 to 26
  17. ↑ R v Tummillo, 2018 MBCA 95 (CanLII), per Cameron JA, at para 53

Defence Waiver of Delay

Any period of time that has been waived by the defence must be subtracted from the total time delayed.[1]

Waiver while not fully apprised by the circumstances of the court docket does not necessarily render the time deductable from the Jordan ceiling.[2]

Burden

The burden is on the crown to prove there has been a waiver of any delay rights.

Requirements

A waiver must be clear, unequivocal and with full knowledge of the right being waived.[3] It does not have to be explicit, however.[4]

An agreement as to a date does not amount to a waiver where the agreement is a "mere acquiescence to the inevitable."[5] The absence of any evidence that the "consents amount to acquiescence in the inevitable, the consents constitut[e] wavier or, as actions of the accused, were attributable to him."[6]

  1. ↑ R v Sharma, 1992 CanLII 90 (SCC), [1992] 1 SCR 814, per Sopinka J, at p. 191 (CCC)
    R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, per Sopinka J, at p. 15
  2. ↑ Tummillo, supra - accused waived delay of trial conference even though the conference was double-booked with other matters.
  3. ↑ R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 61
    R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 27 ("A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal ... .")
    R v White, 1998 CanLII 13319 (NL CA), Nfld. & PEIR 309 (NLCA), per Cameron JA, at para 10]
    R v Richard, 1996 CanLII 185 (SCC), [1996] 3 SCR 525, per La Forest J
  4. ↑ R v Coulter, 2016 ONCA 704 (CanLII), 340 CCC (3d) 429, per Gillese JA, at para 43 ("Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights")
    Jordan, supra, at para 61
  5. ↑ R v Askov, 1990 CanLII 45 (SCC), [1990] 2 SCR 1199, per Cory J, at pp. 481 to 482 (CCC)
    Morin, supra, at p. l5 (CCC)
    R v Pusic, 1996 CanLII 8215 (ON SC), OR (3d) 692, at pp. 70l to 702
    R v Richards, 2012 SKCA 120 (CanLII), 405 Sask R 127, per Richards JA, at para 25
    R v Brassard, 1993 CanLII 42 (SCC), [1993] 4 SCR 287, per L'Heureux-Dube J, at p. 287, 288 (SCR)
    R v Nuosci, 1993 CanLII 40 (SCC), [1993] 4 SCR 283, per Sopkina J, at p. 284 (An “[a]greement to suggested dates cannot be characterized as acquiescing in the inevitable in the absence of evidence to that effect”)
  6. ↑ Brassard, ibid., at p. 287 (SCR)

Types of Defence Delay

Defence delay concerns a various number of defence conduct. It encompasses "the decision to take a step, as well as the manner in which it is conducted."[1] It will include any conduct that is deemed not "legitimate" which will include conduct "designed to delay", shows "marked inefficiency" or "marked indifference towards defence delay."[2]

Incentivising Advancement

Courts are directed to incentivize counsel to move matter forward in order to eliminate the "culture of complacency."[3]

Attributing Illegitimate Actions

Illegitimate action, inaction or omissions will be defence-attributable delay.[4] This includes a failure of engaging in their duty to "collaborat[e] with the Crown" and "us[e] court time efficiently."[5]

What constitutes "illegitimate" does not need to rise to the level of "professional or ethical misconduct."[6]

Unreasonable Action of Counsel

Delay attributable to the defence in a Jordan analysis includes all "unreasonable actions" on the part of the defence.[7]

Unreasonable actions include:

  • last‑minute changes in counsel[8]
  • adjournments flowing from a lack of diligence[9]
  • pursuit of "unnecessary information"[10]
Defence Assumed Diligent

Courts may consider "the level of diligence displayed by the accused" as a relevant factor.[11]

The defence's refusal to concede uncontested matters is "fair game" to consider on whether defence cause delay.[12]

Adjournments

Traditionally, a party who causes an adjournment is responsible for the entire period of delay until the matter is re-scheduled.[13]

  1. ↑ R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 32
  2. ↑ Cody, ibid., at para 32
  3. ↑ R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ (5:4), at paras 94 and 104
    Cody, supra, at para 1
  4. ↑ Cody, supra, at para 33
  5. ↑ Cody, supra, at para 33
    Jordan, supra, at para 138
  6. ↑ Cody, supra, at para 35
  7. ↑ Jordan, supra, at para 193
  8. ↑ Jordan, supra, at para 193
  9. ↑ Jordan, supra, at para 193
  10. ↑ Jordan, supra, at para 193
  11. ↑ Jordan, supra, at para 86
  12. ↑ R v Moreira, 2019 ONSC 2536 (CanLII), per Akhtar J, at paras 28 to 29 ("At the preliminary inquiry, identity was not conceded until the Crown played video evidence. In addition, the defence originally indicated that all the Mr. Big witnesses were required to testify at the preliminary hearing. However, during the hearing, they specified that only two witnesses were required....these matters should have been conceded in advance of the hearing particularly after multiple judicial pre-trials had been held. I also agree that these matters are fair game when it comes to assessing defence-caused delay in s. 11(b) applications...")
  13. ↑ R v Picard, 2017 ONCA 692 (CanLII), 354 CCC (3d) 212, per Rouleau JA, at para 117
    R v M(NN), 2006 CanLII 14957 (ON CA), 209 OAC 331, 141 CRR (2d) 95 (CA), per Juriansz JA (“the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time”)

Lawyer-Client Events

Failure of Accused to Maintain Contact

The Court has the discretion to find that the failure of the accused to maintain contact with their counsel constitutes "illegitimate defence conduct" and will not be added to the delay calculation.[1]

Change of Counsel

Any actions that relate to the change of counsel will be attributed to defence delay.[2]

Withdraw of Counsel

The withdraw of counsel, even in the case where the accused did not want them to withdraw, will still be treated as defence delay.[3]

[19]


  1. ↑ R v Evans, 2019 ABCA 74 (CanLII), AJ No 229, per curiam (3:0), at paras 24 to 25
  2. ↑ R v Cody, 2017 SCC 31 (CanLII), [2017] 1 SCR 659, per curiam, at para 40 ("In this case, we would deduct two periods of time as defence delay. First, it was undisputed throughout the proceedings that the delay resulting from Mr. Cody’s first change of counsel should be deducted as defence delay.")
    R v Teng, 2017 ONSC 568 (CanLII), per MacDonnell J, at paras 63 to 69
    R v Chonkolay, 2017 ABQB 148 (CanLII), at paras 21 to 25
    R v Pelletier, 2016 BCSC 2496 (CanLII), 136 WCB (2d) 264, at paras 29 to 30
  3. ↑ R v Rahi, 2023 ONSC 905 (CanLII), per Ducharme J, at para 19 ("This delay was attributable to the defence even though the accused did not want his lawyer removed from the record. I reject the applicant’s argument that this time period should not be considered defence delay because it was defence counsel’s decision to get off the record, not the accused’s. In our criminal justice system an accused’s lawyer is an extension of the accused. I am supported in this conclusion by the fact that the jurisprudence regarding defence delay refers to “the defence”, not simply “the accused”. These two terms are interchangeable in the s. 11(b) framework.")

Delay of Election and Plea

Intake Period

Under the pre-Jordan framekwork, intake period of two months for the purpose of retaining counsel, reviewing disclosure, and resolution meetings are considered typical.[1]

The presumptive ceiling takes into account an "intake period" which includes time to review disclosure, resolution meetings and retain counsel. It does not get removed from the delay period.[2]

Lawyers are not expected to be able to review the entirety of disclosure as soon as it arrives. It is expected that it will take in the range of 4 to 6 weeks.[3]

Legal Aid and Rowbotham Applications

The period required to seek a Rowbotham application or to seek the release of money for legal expenses is not attributable to defence as it is necessary to full answer and defence.[4] However, where the application for legal aid or Rowbotham counsel is delayed this will be attributable to defence.[5]

Trial Readiness

Where the Crown and Court are ready to proceed but the defence is not will be a delay attributable to the defence.[6] This does not include necessary "preparation time" for the defence.[7]

  1. ↑ R v Meisner, 2003 CanLII 49317 (ON SC), per Hill J, at paras 30 to 32 aff'd 2004 CanLII 30221 (ONCA)
  2. ↑ Cody, ibid., at para 29
    R v Gandhi, 2016 ONSC 5612 (CanLII), 133 WCB (2d) 29, per Code J, at para 24
    R v McCready, 2017 ONCJ 15 (CanLII), per Hawke J, at para 35
    R v Luoma, 2016 ONCJ 670 (CanLII), per Schreck J, at para 22
  3. ↑ R v Regan, 2018 ABCA 55 (CanLII), 359 CCC (3d) 53, per curiam, at paras 61 to 62
    R v Taylor, 2017 ONSC 2263 (CanLII), per Gordon J
    R v McNab, 2016 SKQB 333 (CanLII), 365 CRR (2d) 215, per McMurtry J, at paras 40 to 41
  4. ↑ R v S(DM), 2016 NBCA 71 (CanLII), 353 CCC (3d) 396, per Quigg JA
    R v Isaacs, 2016 ONSC 6214 (CanLII), [2016] OJ No 5225, per Lemay J, per Lemay J, at paras 88, 92
    R v Ny, 2016 ONSC 8031 (CanLII), 343 CCC (3d) 512, per Fairburn J
  5. ↑ R v Sacoccia, 2017 ONSC 2737 (CanLII), per Thorburn J
    R v Paauw, 2016 ONSC 7394 (CanLII), per LaLiberte J
    R v R(D), 2017 ONSC 1770 (CanLII), per Molloy J
    R v McCully, 2016 NSPC 70 (CanLII), per Tax J
  6. ↑ R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ (5:4), at para 64 (" 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.")
    R v Coulter, 2016 ONCA 704 (CanLII), 340 CCC (3d) 429, per Gillese JA, at para 44
  7. ↑ Jordan, supra, at para 65 ("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. ... While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.")

Advancing to Trial Without Complete Disclosure

Defence cannot wait until they receive every last shred of relevant material before agreeing to move the matter forward to trial.[1]

Defence should proceed once they have "substantial dislosure."[2]

However, delay arising out of the Crown's failure to disclose cannot be then used against the accused.[3]

No Delay for Non-Relevant Disclosure

The defence should not be permitted to generate delay by requesting evidence that is not relevant, even where the Crown agrees to disclose.[4]

Sufficiency of Disclosure

Generally, defence should be equipped with sufficient disclosure to ensure efficiency at the pre-trial phase of proceedings.[5]

Defence are expected to have a "reasonable opportunity to review the essential aspects of the Crown case."[6] The necessary disclosure before advancing to trial should be those materials that are "pivotal in understanding the nature of the case, the proof and the material's impact on advising her client on issues such as the nature of the plea, mode of trial" and similar.[7] Failure to have an opportunity to review such material would be "irresponsible" and would waste judicial resources.[8]

Example Disclosure

The availability of a preliminary inquiry transcript was considered crucial enough to the advancement of the matter to trial.[9]


  1. ↑ R v Regan, 2018 ABCA 55 (CanLII), 359 CCC (3d) 53, per curiam, at para 65 ("The accused cannot hold out for every last shred of disclosure before setting hearing dates: ... In some cases it is reasonable to expect defence counsel to book a trial or preliminary inquiry before they have had an opportunity to review all of the Crown’s disclosure.")
    R v Kovacs-Tatar, 2004 CanLII 42923 (ON CA), 73 OR (3d) 161, per curiam, at para 47
    R v NNM, 2006 CanLII 14957 (ON CA), 209 OAC 331, per Juriansz JA, at para 37
    R v JEK, 2016 ABCA 171 (CanLII), 337 CCC (3d) 222, at para 66
    R v Gandhi, 2016 ONSC 5612 (CanLII), 133 WCB (2d) 29, per Code J, at paras 31 to 33
  2. ↑ Gandhi, supra, at paras 31 to 33 (refences the standard of "substantial disclosure")
  3. ↑ R v Frail, 2017 ONSC 5886 (CanLII), per Schreck J, at para 44 ("Crown cannot fail to meet its obligation to make timely disclosure and then attempt to attribute the ensuing delay to the defence for failing to do without material it ought to have received")
    R v Walker, 2013 SKCA 95 (CanLII), 291 CRR (2d) 41, per Ottenbreit JA, at paras 28 to 30
    R v Stanley, 2016 ONCJ 730 (CanLII), per Schreck J, at para 29
  4. ↑ NNM, supra, at para 37 ("A person charged with an offence should not be able to generate a basis for a s. 11(b) application by making a continuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them.")
  5. ↑ R v Jurkus, 2018 ONCA 489 (CanLII), 363 CCC (3d) 246, per Fairburn JA, at para 32
  6. ↑ Regan, supra, at para 65 ("But defence counsel should not be expected to set a hearing date before they have a reasonable opportunity to review the essential aspects of the Crown’s case.")
  7. ↑ R v Vitalis, 2018 ONCJ 43 (CanLII), per O'Marra J, at para 41
  8. ↑ Vitalis, ibid., at para 42
    R v Mahenthiranathan, 2017 ONCJ 497 (CanLII), per Bhabha J, at paras 17, 31
  9. ↑ R v King, 2018 NLCA 66 (CanLII), 369 CCC (3d) 1, per Barry JA, at paras 78 to 80 and, at paras 106 to 107

Scheduling

Unavailability of Defence Counsel

The dominant case law suggests that the unavailability of counsel when both court and Crown are available will be attributed to defence in most circumstances.[1] This effectively overturns the pre-Jordan rule established by R v Godin, which did not necessarily attribute delay to defence due to unavailability.[2]

However, there are some courts that maintain the rule from Godin still remains.[3]

  1. ↑ R v Mullen, 2018 ABQB 831 (CanLII), per Michalyshyn J, at para 41
    R v RMP, 2018 ONSC 4117 (CanLII), 148 WCB (2d) 573, per Bell J
    R v Mamouni, 2017 ABCA 347 (CanLII), 356 CCC (3d) 153, per Watson JA
  2. ↑ see R v Godin, 2009 SCC 26 (CanLII), [2009] 2 SCR 3, at paras 21 to 23
    R v P(RM), 2018 ONSC 4117 (CanLII), 148 WCB (2d) 573, at paras 44 to 45
    R v Ewanochko, 2018 MBPC 14 (CanLII), at para 37
    R v Grewal, 2018 ONCJ 108 (CanLII), 405 CRR (2d) 30, per Monahan J, at paras 14 to 16
    cf. R v Albinowski, 2018 ONCA 1084 (CanLII), 371 CCC (3d) 190, per Roberts JA
    and R v King, 2018 NLCA 66 (CanLII), 369 CCC (3d) 1, per Barry JA, at para 108
  3. ↑ R v Roberts, 2018 ONSC 545 (CanLII), OJ No 732, at para 92
    R v Bardsley, 2017 ONCJ 42 (CanLII), per Pringle J, at para 40
    R v Sepka, 2017 BCPC 356 (CanLII), at para 46
    R v Wu, 2017 BCSC 2373 (CanLII), at para 62
    R v Akumu, 2017 BCSC 896 (CanLII), per Fisher J, at para 114
    R v Ashraf, 2016 ONCJ 584 (CanLII), 367 CRR (2d) 30, per Band J
    R v Gasana, 2016 ONCJ 724 (CanLII), per Monahan J

Defence Applications

Defence applications to seek out evidence to which the Crown had a McNeil duty to seek out would result in the time required to obtain the records would not be attributable to the defence.[1]

Frivolous Application

Any frivolous application will be delay attributable to the defence.[2]

  1. ↑ e.g. R v King (No. 5), 2017 CanLII 15296 (NLSCTD), per Marshall J, at para 53
  2. ↑ R v Coulter, 2016 ONCA 704 (CanLII), 340 CCC (3d) 429, per Gillese JA, at para 44
    R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ (5:4), at para 63 ("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.")

Multiple Co-Accused

The delay caused by multiple co-accused should be taken as a "fact of life" and should be taken into account for what is a "reasonable" amount of time. One accused can prevent a co-accused from proceeding expeditiously. In such a case the court should look at whether the delayed accused took "proactive steps", including prompt disclosure review, pushing for case management, collaborate with Crown to streamline issues, make concessions, and make Crown and Court aware of delay problems.[1] The court should not simply question whether the petitioning accused caused delay or not.[2]

The approach on such cases should be "individualized".[3]

The main question is whether it is in the "interest of justice" to have matters advanced jointly.[4] Where the interests of justice are no longer being served, the Crown is expected to mitigate delay caused by co-accused matters where one co-accused is being "held hostage" by the delay caused by another.[5]

  1. ↑ R v Vassell, 2016 SCC 26 (CanLII), [2016] 1 SCR 625, per Moldaver J, at para 6 ("In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial. ... the delay caused by the various co-accused not only prevented the Crown’s case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, ... it is [a case] in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the Court aware of s. 11(b) problems, and at all times sought early dates.")
    R v Gopie, 2017 ONCA 728 (CanLII), 140 OR (3d) 171, per Gillese JA, at para 174
  2. ↑ Vassell, ibid., at para 6("Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; ")
  3. ↑ Gopie, supra, at para 128 ( "an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused")
  4. ↑ R v Albinowski, 2018 ONCA 1084 (CanLII), 371 CCC (3d) 190, per Roberts JA, at paras 36 to 39
    Gopie, supra, at para 171
    R v Manasseri, 2016 ONCA 703 (CanLII), 344 CCC (3d) 281, per Watts JA, at para 323
  5. ↑ Albinowski, supra, at para 39
    Vassell, supra, at para 7
    see Joinder and Severance of Charges

Defence Obligation to Bring the Matter to Trial

It is not enough for defence counsel to make "token efforts" on the record to seek early trial dates.[1]

Courts may consider whether the defence have acted with diligence in bringing the matter to trial.[2] This would be with a view to:[3]

  • whether counsel raised the issue of delay;
  • whether counsel took active steps to move the matter forward expeditiously by inquiring on early trial dates;
  • whether counsel met in advance of hearings to streamline the process;
  • the seriousness of the charges
  • the prejudice they delay had on the evidence
  1. ↑ R v Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631, per Moldaver, Karakatsanis and Brown JJ, at para 85
  2. ↑ R v Summerfield, 2016 MBQB 241 (CanLII), MJ No 366, per Edmond J
    R v Amyot and Emslie, 2016 MBQB 186(*no CanLII links)
  3. ↑ Summerfield, supra, at para 38

Morin Framework (Pre-Jordan, 2016 SCC 27)

See Also

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