On July 8, 2016, the Supreme Court of Canada rendered its
decision in R. v. Jordan,  SCC 27 (hereinafter,
"Jordan"), which discussed issues regarding the right to
be tried within a reasonable time in criminal and penal matters.
This decision is truly a game changer: before the provincial courts
a delay of 18 months or more will now be presumed excessive and
could lead to the charges being dismissed.
Mr. Jordan was arrested and charged in December 2008, but his
trial, following which he was found guilty, was not held until
February 2013. There was thus a delay of 49½ months between
the filing of the charge and the conclusion of the trial. Mr.
Jordan's counsel filed an application seeking a stay of
proceedings on the ground that Mr. Jordan's right to be tried
within a reasonable time, guaranteed by section 11(b) of the
Canadian Charter of Rights and Freedoms (hereinafter, the
"Charter"), had been infringed. Initially dismissed, the
application was appealed, together with the guilty
The Supreme Court's decision
The Supreme Court of Canada granted Mr. Jordan's
application, and in doing so completely revamped the analytical
framework for determining what is a reasonable time within which an
accused is to be tried, pursuant to the Charter. In the Court's
view, the analytical framework developed in the Morin
decision in 1992, was seriously flawed and had become
Before Jordan, four factors had to be taken into
consideration in determining whether section 11 (b) of the Charter
had been infringed: (1) the length of the delay, (2) defence waiver
of any portion of the delay, (3) the reasons for the delay, and (4)
the prejudice to the accused's interests in liberty, security
of the person, and a fair trial (i.e. prejudice due to the passage
of time). These factors had to be established by the
In Jordan, the Supreme Court developed a new analytical
framework: a ceiling of 18 months was instituted
for matters before provincial courts and 30 months
for matters before superior courts.
If the delay between the filing of charges and the actual or
anticipated end of the trial exceeds the ceiling, it will be
presumed unreasonable, and the burden of rebutting
the presumption will be on the Crown.
In order to rebut the presumption, the Crown will have to
establish that there were exceptional
circumstances outside of its control (i.e. reasonably
unforeseeable or reasonably unavoidable, and incapable of being
reasonably remedied). The delay attributable to the exceptional
circumstances is to be subtracted from the total delay in
determining whether the applicable ceiling has been
The Supreme Court also established a second category of
exceptional circumstances, i.e. particularly complex
cases, due for example to the nature of the evidence or
the issues raised.
Thus, the Supreme Court has decided that ONLY a
showing of exceptional circumstances will allow the Crown to
discharge its burden and enable it to proceed despite a delay in
excess of the applicable ceiling.
The Supreme Court also specified that the new analytical
framework applies to cases currently in the
system. However, the courts will have to determine whether
the parties reasonably complied with the previous legal framework.
Moreover, judges sitting in jurisdictions where long institutional
delays are habitual will have to take this reality into
consideration. Ultimately, stated the Court, the decision in
Jordan will not automatically transform what was
previously considered a reasonable delay into an unreasonable
Finally, it should be pointed out that on the same day the
Supreme Court rendered its decision in Jordan, it also
rendered its decision in R. v. Williamson,  SCC 28,
in which it applied the new analytical framework and concluded that
a delay of 35½ months before judging the accused was
unreasonable given that no exceptional circumstances justified said
delay. This decision confirms that the new analytical framework
does indeed apply to cases currently in the system.
This decision will revolutionize the day-to-day handling of
criminal and penal files. The prosecution will now have to make
more expeditious choices regarding its evidence and be more prone
to contest dubious requests for postponements by the defence.
Defence attorneys too, will have to be more proactive in advancing
and managing their files. Judges will inevitably be more stringent
with procedural manoeuvres that could delay the proceedings.
Jordan is definitely a landmark decision!
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