Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. This ensures that accused individuals are not subject to long drawn-out court processes which can be stressful and expensive.
What is the Right to be Tried within a Reasonable Time?
Section 11(b) of the Charter guarantees all accused’s right to be brought to trial within a reasonable time. The clock begins ticking when the accused is charged and ends at the trial. If the delay between the two dates is unreasonable, the accused’s 11(b) right has been violated and they may be entitled to a remedy under section 24(1) of the Charter.
When is the Right Triggered?
An individual’s section 11(b) Charter right is triggered as soon as they are charged with an offence.
What is a Reasonable Time?
When section 11(b) of the Charter was drafted, the legislature did not include specifics on what would be considered reasonable. This is likely because the amount of time it takes to prosecute a case can vary significantly from case to case. Until recently, courts would assess what was reasonable on a case-by-case basis without any one agreed upon mode of analysis.
In 2016, the Supreme Court released their decision in the case of R. v. Jordan, outlining presumptive ceilings of reasonableness creating one standard analysis for all provincial courts. They determined that in the provincial courts (Ontario Court of Justice), a reasonable amount of time to get an accused to trial is 18 months. In federal courts (the Superior Court of Justice), the presumptive ceiling is set at 30 months. Courts still determine section 11(b) applications on a case-by-case basis, though now there is one binding, agreed upon analysis for doing so.
Only delay caused by the Crown, the court or other institutional delay will count towards the timeline. Any delay caused by the accused or defence counsel will be deducted from the total delay. This prevents offender’s from “lying in the weeds” until their matter reaches the presumptive ceiling and then arguing that their right has been violated.
When determining whether delay is reasonable, the court will consider many different factors including the seriousness of the charge and complexity of the case. The court must balance the societal interest in bringing those who commit crimes to justice with the right of individual persons to be tried within a reasonable time. As the seriousness of the offence increases, so will the societal interest in bringing the offender to justice.
Person A is arrested and charged with theft under $5,000 on January 1, 2022. Their matter will be tried in the Ontario Court of Justice, putting the presumptive ceiling at 18 months and the Jordan date on July 1, 2023. Person A sets their matter down for trial, however the earliest date the court can accommodate is November 5, 2023, several months after the Jordan date. All the delay is attributable to Crown and institutional delay. Person A’s lawyer files an 11(b) Charter challenge. The Crown is unable to provide any reason for the delay. The Court finds that the delay was unreasonable and grants the accused’s motion to stay the proceedings under section 24(1) of the Charter.
The Jordan Analysis
In 2016, the Supreme Court of Canada released the decision for R. v. Jordan, setting a new legal standard for 11(b) Charter challenges. The split court’s decision set presumptive ceilings for what would be considered reasonable in provincial and federal courts. In Ontario these are the Ontario Court of Justice and the Superior Court, respectively. For matters to be heard in the Ontario Court of Justice, the presumptively ceiling is set at 18 months. In the Superior Court of Justice, the ceiling is set at 30 months.
The Court outlined the Jordan analysis to be employed by courts across Canada. To calculate the length of delay, one must count the number of days between the laying the charge and the first date of trial. Since only Crown and institutional delay is counted, any delay caused by the defence will be deducted from the total delay.
If the total delay exceeds the applicable presumptive ceiling, the delay will be considered presumptively unreasonable. Defence counsel must show that it took reasonable steps to move the matter along. The Crown must then provide submissions to the court explaining the delay and why it is reasonable in the circumstances.
Where the delay is below the presumptive ceiling, the defence may still advance an 11(b) motion, arguing that though the delay has not yet reached the ceiling, it is nonetheless unreasonable in the circumstances. Defence counsel must show that it took reasonable steps to move the matter along and that the case nonetheless took longer than it should have.
When completing the analysis, the Court will weigh the importance of bringing the accused to trial with the prejudice suffered by the accused as a result of the delay. Prejudice suffered by an accused may include being on restrictive bail conditions for an extended period, the stress and financial strain of a lengthy on-going legal battle and the social stigmatization accompanying outstanding criminal charges.
Where the court determines that the delay was unreasonable, they will permanently stay the proceedings against the accused pursuant to section 24(1) of the Charter.
What happens if the Right is Violated?
Where the delay between the date of the laying of the charge and the late of trial is unreasonable, the accused may bring an 11(b) Charter challenge, arguing that their right to be tried within a reasonable time has been violated. The court will review the Jordan analysis provided and the accompanying arguments from the defence and Crown to determine whether the delay was reasonable in the circumstances. If the court finds that the delay was unreasonable, they will permanently stay the proceedings against the accused, pursuant to section 24(1) of the Charter. This means the case against the accused is over.
R. v. Jordan,  1 SCR 631
In the case of R. v. Jordan, the Supreme Court of Canada set a new Brightline rule for determining 11(b) Charter challenges. The Court implemented presumptive ceilings of 18 months and 30 months for provincial and federal courts, respectively. The Court affirmed that only delay caused by the Crown and Court will be used in calculating the total delay. Defence counsel must show that it took reasonable, proactive steps to move the matter along to trial, and did not simply wait in the background for the delay to exceed the ceiling.
R. v. Godin,  2 SCR 3
In the case of R. v. Godin, the Supreme Court of Canada stated that in the context of an 11(b) Charter analysis, the prejudice experienced by the accused must be considered in conjunction with the length of delay. Prejudice may be inferred from the length of delay itself, even where no other prejudice exists. The longer the delay, the more likely that it can be inferred that the accused was prejudice.