Nov 28

Section 11(b) of the Charter guarantees that “any person charged with an offence had the right to be tried within a reasonable time.”

How much delay is too much delay? What is the Jordan ceiling?

The Supreme Court of Canada in R. v. Jordan set ceilings of 18 months if the matter is in the Ontario Court of Justice and 30 months if the matter is in the Superior Court of Justice. The delay starts when a charge is laid to the anticipated end of trial. If your matter exceeds 18 months and none of the delay can be attributed to you, the delay is deemed presumptively unreasonable, and the Crown will need to rebut the presumption. To rebut this presumption, the Crown must establish the presence of exceptional circumstances or complex case. If the delay cannot be attributed to an exceptional circumstance (or a complex case), it is unreasonable, and a stay will follow.

Can I get a Section 11(b) if delay is below the ceiling?

Where the period of delay falls before the applicable ceiling, the onus is on the defence to show that the delay is nevertheless unreasonable. The defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

How does delay work for a youth?

The numerical ceilings established in Jordan for calculating whether delay is presumptively unreasonable also apply to young persons charged with contraventions of the Criminal Code and who are tried in a youth justice court under the Youth Criminal Justice Act.

The time limits on youth matters have changed since Jordan. Previously, youth charges were required to be completed in a shorter time than what is required for adult charges.

Does delay matter for sentencing hearings?

In R. v. Charley, the Ontario Court of Appeal found that the time frame for sentencing must by analyzed in accordance with the principles set out in Jordan, although subject to its own separate presumptive five-month ceiling.

When does delay stop?

The clock stops after the completion of evidence and submissions, and when deliberations have started. Even though the Jordan clock has stopped, section 11(b) still plays a role in verdict deliberation time.

The delay attributable to verdict deliberation time can infringe section 11(b) where the deliberation time took markedly longer than it reasonably should have in all of the circumstances. A heavy burden lies on the accused to prove this type of infringement by rebutting the presumption that judges are best placed to balance the different considerations that inform verdict deliberation time, and that the deliberation time taken by a judge in a particular case was no longer than reasonably necessary in the circumstances.

How do I bring a delay argument?

A section 11(b) is an application that you must file. The application will include all transcripts of court appearances, a notice of application, possibly a factum, and a chart outlining the delay.

What happens if there is too much delay?

A stay of proceedings is the minimum remedy for a breach of this right because the court has lost jurisdiction to proceed.