[Stuart O’Connell is a lawyer and head of O’Connell Law Group, a Toronto-based law firm which focuses on defence-side criminal and civil litigation, privacy law, and victim rights.  He also regularly works in association with Donich Law Professional Corporation]

Section 11(b) of the Charter provides: “Any person charged with an offence has the right … (b) to be tried within a reasonable time”.

R. v. Jordan, 2016 SCC 27 established a new framework for the s. 11(b) analysis. It was designed to be simple in its application and predictable in its effect. It replaced the framework articulated in R. v. Morin, [1992] 1 S.C.R. 771, which the majority in the Supreme Court described as too unpredictable, too confusing, and too complex.

     R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 38.

The Jordan framework is now well-understood. At the centre of the new framework is a “presumptive ceiling” on the time between the date of the charges and the actual or anticipated end of the trial. Delay beyond that ceiling is presumptively unreasonable.

     Jordan, at para. 46.

For cases tried in provincial courts, the ceiling is 18 months. For cases tried in superior courts, or in provincial courts after a preliminary inquiry, it is 30 months.

The Crown may prefer an indictment in superior court and thus bypass the preliminary inquiry. While this can significantly reduce the amount of time between charge and trial, it does not affect the Jordan ceiling of 30-months for trials in the superior court.

In R. v. Bulhosen, 2019 ONCA 600, the appellants argued that because the Crown had preferred an indictment while the case was in the Ontario Court of Justice, the proceeding became a “one-stage proceeding” (a term used in pre-Jordan jurisprudence) and that the applicable ceiling should, therefore, be 18 months. The Court of Appeal for Ontario was not persuaded.