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,  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 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 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 exceeded.
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 one.
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!