In R. v. J.F., the Supreme Court of Canada ruled on how delay (R. v. Jordan) is calculated on a re-trial. The court allowed the Crown’s appeal, set the stay of proceedings aside, and sent the matter back for trial.
Only in exceptional circumstances will delay from the first trial be considered when assessing whether the second trial was a breach of an accused’s s. 11(b) rights for unreasonable delay. In making this ruling, the Court said lateness in acting impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources. Bringing a motion in a retrial for a stay of proceedings based on first‑trial delay is contrary to the parties’ duty to take proactive measures and interferes with the proper administration of justice.
On a re-trial, the accused regains the status of a person charged with an offence. Delay following such an order is trial delay and therefore falls within Jordan, so the presumptive ceilings of 18 months in the Ontario Court of Justice, and 30 months in the Superior Court of Justice apply.
The Court went on to say that re-trials must be prioritized and should be conducted in less time than the first trial. Further, on an s. 11(b) application, the court should consider that the matter is a re-trial when assessing whether the delay was unreasonable.
The decision in R. v. J.F. is a concerning decision when looking at s. 11(b) of the Charter. Allowing the judicial system to once again have 18 or 30 months to prosecute a presumed innocent person means that the cloud of the criminal justice system can loom over an accused person for many years. A more contextual approach between the delay in the first and second trial should have been considered by the Supreme Court of Canada.
If you or someone you know has questions concerning the delay in their re-trial, contact the lawyers of Lockyer Zaduk Zeeh to assist you.