Delay in Criminal Courts – R v. Jordan, [2016] 1 SCR 631 by Stephanie Head

The right to trial within a reasonable time has long been enshrined in section 11(b) of the Charter. What the Courts considered to be reasonable was always subject to the circumstances of the matter, varying from case to case. The SCC’s recent decision in R v. Jordan, [2016] 1 SCR 631, however, has completely changed the landscape of the section 11(b) right and finally solidified the definition of a “reasonable time”.

The Jordan decision, created a numerical ceiling for trials: if the time it takes from charge to trial exceeds 18 months at the Provincial Court Level, or 30 months at the Supreme Court level it is presumed to be in violation of the accused’s section 11(b) rights. Crown Counsel is then required to justify the delay, either by showing that the case was overly complicated or that it involved exceptional circumstances that kept it from proceeding to trial earlier. Crown failing to justify the delay now results in a stay (dropping) of the charges.

The effect of this decision has resulted in multiple stays of proceedings across Canada. The SCC most recently reaffirmed their controversial decision in R v. Cody, 2017 SCC 31, outlining the approach judges should take when considering a delay application under the Jordan framework.

Cody was arrested and charged with possession for the purpose of trafficking in 2010. His trial date was finally set 5 years after his initial arrest. In coming to their decision the Court devised an equation:

They looked at the total number of months from arrest to the potential end of trial; subtracted any time associated with defence conduct; as well as any time added because of exceptional circumstances. If the total number of months still exceeded thirty, then the matter is in violation of s. 11(b)

In Cody’s case the equation resulted in a total of 36.5 months. The Crown failed to prove that the case was particularly complex and so all charges were stayed.

The decision in Jordan was directed at changing the “culture of complacency” that seems to have surrounded the criminal justice system. Whether that culture will change in the months or years to follow, is yet to be seen. Many scholars are concerned that without increased funding to the Court system, the decision will result in less change than originally hoped.

Written by Stephanie Head