R. v. Jordan – The Supreme Court Of Canada Dramatically Alters The Framework Applicable To The Right To A Criminal Trial Within A Reasonable Time

For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:

Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if the public comes to view the system with distain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.1

In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada, on which Justice Moldaver now sits, recently made broad and sweeping changes to the framework that determines whether an accused has been tried within a reasonable time under s. 11(b) of the Charter. The decision, by a 5-4 majority, has the potential to radically alter the way that criminal cases are litigated, particularly for corporate defendants.

A New Framework

The majority decision penned by Justices Moldaver, Karakatsanis and Brown, and supported by Justices Abella and Côté, established the following new framework for applying s. 11(b):

Part 1: The Presumptive Ceiling

There is a presumptive ceiling of 18 months on the length of a criminal case in provincial courts, from the charge to the end of trial. There is a presumptive ceiling of 30 months on criminal cases in superior courts, or cases tried in provincial courts after a preliminary inquiry. Delay that is attributable to, or waived by, the defence does not count toward the presumptive ceiling. Institutional delay that is not the fault of the Crown does count toward the presumptive ceiling. Part 2: When the Ceiling is Exceeded

When the presumptive ceiling is exceeded, it is automatically presumed that the delay is unreasonable. The Crown may only rebut this presumption by establishing one of the following exceptional circumstances: A discrete event occurred that was reasonably unforeseen and reasonably unavoidable (such as an illness or unexpected event at trial). The delay attributable to such an event is subtracted from the total delay; or The case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time. Where the Crown cannot rebut the presumption of unreasonableness, the charges against the accused will be stayed. Part 3: Below the Ceiling

Where a presumptive ceiling has not been exceeded, an...