Extraordinary Circumstances in Jordan Delay Analysis

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General Principles

A presumptive breach of s. 11(b) of the Charter can be rebutted where the breach was under "extraordinary circumstances".[1]

"Extraordinary circumstances" can be established where the delay was "outside the Crown's control" such that;

  1. the delays are "reasonably unforeseen or reasonably unavoidable" and
  2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

Generally, there are two categories of "extraordinary circumstances":

  1. discrete events or
  2. particularly complex cases.

What type of circumstances are to be considered "extraordinary circumstances" is an open list and will depend on the "good sense and experience" of the trial judge.[2]

It is not necessary that the "extraordinary circumstances" be "rare or entirely uncommon".[3]

Seriousness Not a Factor
The seriousness or gravity of the offence does not pay in the consideration for delay.[4]

  1. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 69
  2. ↑ Jordan, ibid., at para 71
  3. ↑ Jordan, ibid., at para 69
  4. ↑ Jordan, supra, at para 81

Discrete Events

The discrete events category require that the developments be "unforeseeable and unavoidable".[1]

Once the discrete event occurs the Crown then has an obligation to try to resolve the issue without causing any more delay.

The Crown must show that "it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling."[2]

Reasonable step do not have to be successful, they only need to be responsive to avoid delay.[3]

An example of reasonable steps include:[4]

  • seeking the assistance of the court;
  • seeking assistance of defence counsel to streamline evidence or issues for trial; or
  • coordinate the pre-trial applications.

An example of valid discrete events would be a recanting complainant.[5]

  1. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 73
  2. ↑ Jordan, ibid., at para 70
  3. ↑ Jordan, ibid., at para 70
  4. ↑ Jordan, ibid., at para 70
  5. ↑ Jordan, ibid., at para 73

Complex Cases

Consideration of a case's complexity is a "qualitative" assessment of the case "as a whole".[1]

A complex case is one where "the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time".[2]

This assessment is considered in context of whether the complexity is "sufficient to justify its length" and whether the "net delay is reasonabe in view of the case's overall complexity".[3]

The setting of the presumptive ceilings already reflects "increased complexity of criminal cases since Morin"[4] in many aspects including new offences, procedures, obligations and law.[5]

Factors to consider when evaluating the case's complexity include:[6]

  • Voluminous disclosure
  • Number of Witnesses
  • Proceedings Against Multiple Co-Accused and
  • Nature of the Issues
  1. ↑ R v Cody, 2017 SCC 31 (CanLII), per curiam, at para 64
  2. ↑ Cody, ibid., at para 64
    R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 77
  3. ↑ Cody, supra, at para 64
  4. ↑ R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), per Sopinka J
  5. ↑ Cody, supra, at para 63
    Jordan, supra at para 42 and 53
  6. ↑ Jordan, supra, at para 77
    R v Jansen and Hall, 2017 ONSC 2954 (CanLII), per Sosna J at para 59 to 66

Voluminous disclosure

"Voluminous disclosure" is a "hallmark of particularly complex cases" however it is "not automatically demonstrative of complexity".[1]

Evidence can include an inventory list of documents and number of pages of disclosure.[2]

  1. ↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ, at para 77
    Cody, supra, at para 65
  2. ↑ e.g. Jansen and Hall, supra, at paras 61 to 65

Multiple Co-Accused

See also: Joinder and Severance of Charges

The delay caused by multiple co-accused is an accepted "fact of life" and must be accounted for in what constitutes a reasonable time for trial.[1]

There will always be scheduling conflicts between the co-accused that result in greater delay of all parties.[2]

Crown cannot ignore situations where one accused is being "held hostage" by the delays caused by the other accused in the course of joint proceedings.[3]

However, severance cannot be seen as a panacea when delay arises from a multi-party indictment.[4]

  1. ↑ R v Vassell, 2016 SCC 26 (CanLII), per Moldaver J, at para 6
  2. ↑ R v Dhaliwal, 2017 BCSC 2215 (CanLII), per Ross J, at para 26
  3. ↑ Vassell, ibid., at para 7
  4. ↑ R v Singh, 2016 BCCA 427 (CanLII), per Goepel JA, at para 81
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