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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




New Driving Laws in Ontario – Learn the Facts

driving lawsOn September 1st, 2016b new driving laws came into effect under the Making Ontario Roads Safer Act, in an effort to make driving safer.

Five new traffic laws were brought into force and are described below.

Distracted Driving Laws

The current fine for distracted driving is approximately $200, but under the new laws, if you’re caught looking at your phone, talking or texting, while driving you will face larger fines.  The new laws increases the distracted driving fine to $490 and three demerit points upon conviction.  If you are a driver with only a G1 or G2, you could have your licence suspended.

Pedestrian Crossovers

The new law provides that drivers have to wait until pedestrians have completely crossed the road at pedestrian crossovers and school crossings.  According to the Ministry of Transportation, almost half of all fatal traffic accidents involving pedestrians occur at intersections.  It is important to note that this law will not take effect until January.

Passing Cyclists

Motorists that open the door of their vehicle without checking and strike a cyclist will be faced with a fine of $365 and three demerit points upon conviction.  Further, drivers are required to provide at least one meter of space between their vehicle and the cyclist wherever possible.

The “Move” Over Law

Drivers must slow down and move to the side of the road when they see a stopped emergency vehicle with its red and blue lights flashing.  This law will also apply to to stopped tow trucks that have amber lights flashing.  The fine for violating these driving laws will be $490 and three demerit points.

Alcohol and Drugs

The ministry states that under the new driving laws, individuals caught driving under the influence of drugs will now face the same penalties as drunk drivers.  This includes between a 90-day license suspension and a week long impoundment.  This law was implemented because according to the Ministry of Transportation, more than 45% of drivers killed in Ontario were found to have drugs or alcohol in their system.

As of the spring, it is expected that there will be an expansion of licence plate denial for drivers who do not pay Provincial Offences Act fines for offences such as speeding, improper lane changes, illegal turns, driving without insurance and careless driving.

Have you Been Charged?

If you have been charged with any of the offences listed above or have questions regarding the new laws, please contact our experienced team at Smordin Law.  We are happy to assist you with all of your questions and criminal law matters.




Solitary Confinement – The law and practice in Canada.

Alberta Judge Rules That Keeping Inmates In Solitary Confinement Is Not Reasonable

Further pressure has been added to Canada’s prison agency to change its policy on solitary confinement.

In a recent decision, an Alberta judge released three inmates from segregation cells, concluding that prison authorities ignored factors surrounding procedural fairness, aboriginal identity and mental health history before placing them in isolation.  On July 28, 2016, staff at the maximum security Edmonton Institution placed Matthew Hamm, Shawn Keepness and Taylor Tobin in solitary confinement after a confidential informant told the staff that the individuals planned to assault a group of prison guards.

solitary confinementWhen individuals are placed in solitary confinement, staff are legally obliged to give reasons with detailed explanations behind their decision.  The inmates were denied procedural fairness and not given the right to counsel, therefore, the inmates, working without lawyers filed an application of habeas corpus.  This application led to a judicial review of the decision.

A habeas corpus is a medieval writ stating “no man shall be arrested or imprisoned except by lawful judgement of his peers or by the law of the land”.  Today this writ allows for a judicial review of prison actions that further erode an inmate’s residual liberties.  Before Mr. Hamm was able to exercise his rights and argue his transfer before a judge, he was sent to solitary confinement.

Justice Joanne Veit of the Alberta Court of Queen’s Bench states:

“Given the basis on which the inmates were sent to solitary confinement, and the individual mental health and aboriginal circumstances of each inmate, the decisions to send each of them to solitary confinement is not reasonable”.

The judge agreed with the argument of the inmates, stating that “upon reviewing all the information that the Correctional Service withheld from the inmates… In the totality of the evidence on this application, I am unable to conclude that the institution had reliable and credible information that these applicants were planning a serious assault on three identified guards”.

In further support of the inmates, she noted that the institution had never laid charges, criminal or institutional, for their alleged conspiracy of beating the jail guards.

Justice Veit, found it concerning that the reasons given by the correctional officer’s decisions did not address any aboriginal or mental health issues.  These factors should have been given considerable weight and were not even mentioned.  It is important to note that Mr. Hamm suffered from bi-polar disorder and both Mr. Keepness and Mr. Tobin are aboriginal.

Hopefully this decision will shed light on solitary confinement and inmate rights in Ontario.  There is no doubt that prison reform must take place.  Prisons are underfunded and both inmates and prison guards suffer from the consequences of poor policy and underfunding.




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