Breach Within the Presumptive Ceiling

From Criminal Law Notebook

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".
Burden

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]

"Meaningful" and "Sustained" Steps

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".[6]

The defence are expected to act "reasonably" not perfectly".[7]

To look for meaningful and sustained steps, the court should consider:[8]

  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.
Reasonable Time Requirement

The reasonable time requirement will depend on factors including: [9]

  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."[10]

Example of Appropriate Steps

In a given case, the accused can express an intention to expedite the case in any number of methods including:[11]

  • "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."
  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, ibid., at para 84
  7. ↑ Jordan, ibid., at para 85
  8. ↑ 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")
  9. ↑ Jordan, supra, at para 87
  10. ↑ Jordan, supra, at para 89
  11. ↑ R v Carman, 2017 ONCJ 11 (CanLII), per Duncan J, at para 30
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