The New Framework to be Applied where a Breach of s. 11(b) is Alleged

The New Framework to be Applied where a Breach of s. 11(b) is Alleged

On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied in s. 11(b) Charter applications.  At the heart of the new framework is a presumptive ceiling beyond which delay —from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).

The New Framework Summarized

The approach required by the new framework was recently summarized in R. v. Coulter,

2016 ONCA 704 (CanLII),
[2016] O.J. No. 5005 (C.A.) at paras. 34-40:

·         Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

·         Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

·         Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

·         If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

·         Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

·         If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

·         If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

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