Reasonable Delay and the Jordan Decision

Criminal Law

The Jordan decision

The ceiling set by the Jordan decision is presumptively 18 months for cases tried before a provincial court. This ceiling also applies to penal prosecutions under provincial laws (where the penalty is generally a fine and never imprisonment). It is, however, 30 months for cases tried before a superior court (or those tried before a provincial court following a preliminary inquiry), as these are generally more serious.

The delay therefore begins to run from the filing of the information, that is, when a prosecutor authorizes a police officer’s complaint. It ends at the conclusion of the trial, meaning the close of evidence and submissions. In principle, neither deliberation nor sentencing is added to these delays. That said, according to some authors, these could be examined under section 11(b) if the post-trial proceedings dragged on, though no leading decision appears to have yet addressed the question.

When should a request be made?

Legal scholarship indicates that a motion for a stay of proceedings for unreasonable delay may, in principle, be filed at any time before sentencing. It is, however, strongly recommended that such a motion be filed before trial.

Since the framework established by the Jordan decision offers greater predictability and clarity, and encourages all parties to act proactively, the accused must therefore raise the unreasonableness of delays in a timely manner. An accused who claims to be a victim of unreasonable delays after their trial, and particularly after conviction, would generally not be acting in a timely manner.

Delays in the case of an appeal

As is generally known, an accused may sometimes appeal a conviction if they believe they were prejudiced. It is likewise possible for the Crown, dissatisfied with a judge’s decision, to appeal a case.

Once an appeal is granted, one possible remedy for an appellate court is to send the case back to the lower court for a new trial. In these situations, an accused could not add together the delays from both trials to invoke Jordan. Some authors, commenting on the Supreme Court’s J.F. decision rendered in 2022, note that the order for a new trial « resets » the delay calculation, so that only the delays from the second trial may be invoked in an 11(b) motion filed in the context of that second trial.

Waiver

At an accused’s court dates following the appearance date — known informally as « dates for form » or « pro forma » dates — defence lawyers will be asked whether they agree to waive delays for their clients. This explicit waiver has the effect of removing the delay during which the case is postponed from the ceiling described above.

A lawyer will waive delays if they believe the postponement request was made for the accused’s benefit. This would be the case where the accused has not yet decided whether to go to trial, or where documents not yet obtained could help negotiate their case. Conversely, when the postponement is caused by the Crown, in situations where it is unable to set a trial date, for example, the delays will not be attributable to the defence.

Waiving certain periods must be informed, clear, and unequivocal. This means your lawyer must have explained it to you before waiving it. The defence, even without explicitly addressing the waiver, could be prevented from invoking certain delays if they are directly caused by it. This may result from illegitimate action to delay the process (e.g., requesting irrelevant documents) or negligence: delays cannot be invoked if they result from an accused’s absence from court, to give an obvious example.

Several rulings indeed emphasize that the defence cannot benefit from its own conduct when it causes delays, such as filing late motions, having unjustified unavailabilities, or pursuing ineffective steps. Some motions are sometimes characterized as strategies to unduly delay judicial proceedings. These lead to significant periods being attributed to the defence, possibly bringing the net delay below the ceiling.

Courts thus insist on the defence’s duty to be proactive: an accused who notices delays lengthening must raise the issue and file an 11(b) motion in a reasonable and timely manner.

The calculation

The gross delay is calculated by adding the number of days between the filing of the information and the end of the trial. Subtracting the delays attributable to the defence gives the net delay.

The burden of proof

When the total net delay exceeds the applicable ceiling, it is presumed unreasonable. The Crown may then try to show that the delays are reasonable by raising exceptional circumstances.

Courts describe exceptional circumstances as situations outside the Crown’s control, reasonably unforeseen or unavoidable, which the Crown could not reasonably remedy, generally including the complexity of the case or distinct events (illness, family emergencies, pandemic).

When the gross delay is above the ceiling but the net total falls below it, the defence may, in turn, try to establish that the delays are unreasonable by showing it took useful steps demonstrating sustained effort to speed up the proceedings, and that the trial took significantly longer than it reasonably should have.

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