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11b Delay – Post Jordan

There was significant buzz after the decision of Supreme Court of Canada in R. v. Jordan 2016 SCC 27 (Jordan) regarding the expansion of an individual’s right to criminal trial within a reasonable time, shrined in Section 11(b) of the Canadian Charter of Rights and Freedom (Charter). Jordan was an appeal from British Columbia Court of Appeal’s decision that affirmed conviction after an 11b delay of almost 50 months, from the laying of the information up to the end of the trial.

After the court’s decision in Jordan which had placed presumptive ceilings on the length of proceedings after which the 11b delay would be presumed unreasonable, many expected an Askov kind of ripple effect, during which thousands of proceedings were stayed that had already surpassed the Askov benchmark. To their surprise, not many proceedings have been stayed due to unreasonable 11b delay after Jordan.

The reason is the Supreme Court’s decision in Jordan itself. The Supreme Court, at Para. 94, clearly states that the decision is not meant to result in thousands of charges being stayed, which had occurred as the result of court’s earlier decision in Askov, more than two decades ago. None the less, post-Jordan, unreasonable 11b delays have resulted in stay of proceedings for few, whereas in many other instances the Crown has been able to rely on exceptions such as discrete circumstances and particularly complex matters to justify the 11b delay.

Although there have been complex cases where the delay has resulted in stay of proceedings. It should be noted that these cases are few and far in between. Majority of the times, the defense either contributes to the delay or waives the delay, which results in that delay being subtracted out of the total 11b delay. It is also noteworthy to mention that even before the Jordan decision was released, the average amount of time for a proceeding to complete was and currently is below the presumptive ceiling mark.

Jordan helps to crystallize the current status of 11(b), but it does not really change the legal landscape of an individual’s right to a trial within a reasonable time. At first sight, Jordan may and can force the Crown to proceed with all the matters in an expedite manner in order to remain below the presumed ceiling. However, upon closer look, presumptive ceilings in many instances can prove to be a barrier, instead of a carrier, to 11 (b). Most of the criminal proceedings commence and complete in Ontario Court of Justice and involve straight forward matters. An individual who may want to have a trial within a relatively short period after his/her arrest can have to wait for a longer period since the Crown or the Courts may not be able and/or interested to have a trial relatively quickly.

Supreme Court in Jordan stated that the onus was on the accused to expedite the proceedings where the accused wanted to raise 11 (b) before the presumptive ceiling had been reached. However, it can be challenging for an accused who has little or no control over the administration of the proceedings. This can have devastating effects on an accused’s section 7 rights to liberty and security under the Charter, who is being held in custody awaiting trial or living under strict bail conditions.

In conclusion, Supreme Court’s decision in Jordan has not resulted in any expansion of an individual’s right to a criminal trial within a reasonable time, but the decision has managed to capture the attention of those involved in the administration of the Criminal Justice System to move the proceedings expeditiously.

11b Delay

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