Unreasonable Delays In Criminal And Penal Matters: The Supreme Court Toughens The Rules!

On July 8, 2016, the Supreme Court of Canada rendered its decision in R. v. Jordan, [2016] 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.

The facts

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 verdict.

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 obsolete.

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 defence.

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...