In arguably the most important criminal law decision in 2016, the Supreme Court of Canada ruled, in R. v. Jordan, to set aside a man’s criminal conviction on the basis that the delay going to trial was unreasonable and the accused man’s s. 11(b) Charter right had been infringed.

From the time the accused man was arrested to the end of his trial amounted to 49.5 months. Although approximately 5 ½ months of the delay could be attributed to decisions made by the defendant (i.e. when he changed counsel and when defence counsel was not available for closing submissions), the remaining 44-month delay significantly exceeds the presumptive ceiling of 30 months for trials in a superior court. In Jordan, the Supreme Court held that the Crown failed to discharge its burden of proving that the delay was reasonable or that the case was so unusually complex to justify such a delay.

This case concerned a man who was arrested in December 2008 and charged with various drug trafficking and possession offences. However, his trial did not begin until September 2012, at which point he applied for a stay of proceedings on the grounds that his right to be tried within a reasonable time had been breached. His application for the stay was dismissed and finally, in February 2013, he was convicted on five drug-related offences. During the period he was awaiting trial, the man’s freedom was significantly restricted — after his arrests, he spent two months in custody and then almost four years of restrictive bail conditions.

In making the 2012 decision that there was no s. 11(b) Charter breach, the B.C. Supreme Court trial judge applied the framework from the decision in R. v. Morin (1992) which sets guidelines on how much institutional delay is reasonably tolerable. In this case, the majority of the delay, 32.5 months, constituted an institutional delay of 19 months at Provincial Court and 13.5 months at the B.C. Supreme Court. The trial judge acknowledged that this was outside the guidelines set in Morin for acceptable delays of 8-10 months in provincial court and 6-8 months in superior court; however, the judge decided that the institutional delay may be given less weight than a Crown delay. Further, the judge reasoned that although the defendant’s freedom and security of the person were impacted, “any prejudice was minimized by the fact that he was facing other outstanding charges for much of the delay” (which also resulted in restrictive bail conditions). On all of these factors, the trial judge decided that Mr. Jordan’s Charter rights had not been infringed. This decision was later upheld by the B.C. Court of Appeal in 2014.

In considering the issue of unreasonable delay, the Supreme Court asserted that not only is timely justice one of the characteristics of a free and democratic society, but everyone suffers when the accused person waits an extended time for their case to be resolved in trial — the accused person and their family is in a state of limbo and uncertainty; victims and their families are unable to move forward with their lives, and even the public’s best interest is frustrated when waiting years for a trial.

The Court criticized the fact that our system has become complaisant with respect to tolerating excessive delays. Further, the Morin framework for applying s.11(b) of the Charter is “too unpredictable, too confusing and too complex”, and the application of these guidelines “has given rise to both doctrinal and practical problems”. Finally, the Court stated that the after-the-fact justification for delays within the Morin framework does not promote preventative measures to address inefficient practices among participants in the justice system.

To address this problem, the Supreme Court of Canada found that a change of direction is required and accordingly, the Court established a new framework which applies a presumptive ceiling on the time it must take to bring an accused person to trial: 30 months for cases being tried in a superior court and 18 months for cases being tried in a provincial court. Applying this new framework to Jordan, the Court concluded that Mr. Jordan was not brought to trial within a reasonable time and as a result, the Court allowed the appeal and set aside his convictions.

What this decision means for anyone whose delay going to trial exceeds the presumptive ceiling is that the delay is automatically presumed to be unreasonable. Any institutional delay counts toward the presumptive ceiling, whether or not it is the fault of the Crown. There are, however, exceptional circumstances which may be excluded, including isolated events that are unforeseen or unavoidable, such as illness, or cases that are unusually complex, in terms of evidence or issues. Also, any delays caused by, or waived by, the defence are subtracted from the calculation of a delay.

The Supreme Court decision in Jordan means that in cases where the presumptive ceiling is exceeded in going to trial, it is much easier for the defence to prove that they suffered prejudice due to unreasonable delay and correspondingly easier to obtain a stay in proceedings.

The lawyers at Kruse Law are well-respected and highly experienced in criminal law defence. If you or a loved one were charged with a criminal offence, contact our office today to find out how we can help.

By Published On: August 13, 2023Last Updated: August 13, 2023Categories: Drug Charges

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