Institutional Delay and the Charter: R v Jordan
The Supreme Court of Canada (“SCC”) will have another opportunity to discuss how claims involving section 11(b) of the Charter should be assessed during the appeal of R v Jordan, 2014 BCCA 241. Section 11(b) of the Charter provides that a person charged with an offence has the right to be tried within a reasonable time. If one’s section 11(b) right is infringed, one can obtain a judicial stay of proceedings pursuant to section 24(1) of the Charter.
Barrett Richard Jordan was the subject of an investigation into a cocaine and heroin distribution network that took orders over the phone in Langley and Surrey, British Columbia. A police search of Jordan’s home in December 2008 produced large quantities of heroin, cocaine, and crack cocaine as well as cash and a shift calendar for the operation’s employees.
After several amendments to Jordan’s information to include additional charges and accused persons, Jordan applied for a judicial stay of proceedings pursuant to section 24(1) of the Charter. He argued that his section 11(b) right had been infringed because the 49.5-month delay in bringing his case to trial was unreasonable. Typically, eight to ten months between committal and trial as well as a further six to eight months of delay following a preliminary inquiry is considered reasonable.
The Trial Decision
The trial judge dismissed Jordan’s application for a stay of proceedings because, in the judge’s view, the prejudice Jordan experienced because of the delay was not substantial, the delays were mostly institutional, and the charges were serious. Jordan was convicted and received a sentence of four years.
The leading authority for section 11(b) analyses is R v Morin,  1 SCR 771. In Morin, the SCC set out a number of factors to be considered when assessing whether a delay in bringing a case to trial is reasonable or not. These include the length of the delay, waiver of time period, reasons for the delay, and prejudicial effect on the accused.
This approach is not, however, mathematical. It is a judicial determination that involves balancing the interests that section 11(b) protects with factors that lead to or cause a delay—the scarcity of judicial resources being one such example.
After figuring out the length and reasons for the delay, courts must then consider whether the accused has been prejudiced by the delay with respect to the accused’s liberty, security of person, and ability to make a full answer and defence. The goal is to balance the right to a fair trial and the commitment to hold the guilty accountable for their actions.
The trial judge concluded that, although the delay arising from a lack of institutional resources was significant, Jordan did not experience any meaningful prejudice because of the delay. Jordan’s bail conditions had a limited impact on him; he was already subject to a conditional sentence order for a prior conviction and was able to find employment while on bail. The trial judge also noted Jordan’s passivity in obtaining a speedy trial.
The Court of Appeal Decision
The British Columbia Court of Appeal (“BCCA”) found no reversible error in the Trial Judge’s application of the Morin analysis.
Jordan argued that the trial judge erred in finding that the prejudice he experienced as a result of the delay was not substantial. He contended that the delay was unreasonable because the case was relatively straightforward and that the trial judge did not adequately consider the fact that Jordan did not contribute to the delay.
Writing for the BCCA, Justice Stromberg-Stein acknowledged that prejudice can be inferred solely from the length of delay in certain circumstances and that this finding is more likely with a longer delay. However, she ultimately agreed with the trial judge that, in these circumstances, the prejudice Jordan experienced could not be characterized as substantial.
Justice Stromberg-Stein’s straightforward reasons seem to suggest that the principles governing the analysis of section 11(b) claims are relatively settled. It is interesting, then, that the SCC has granted Jordan leave to appeal the BCCA’s decision to Canada’s highest court. The SCC will address the issue of how institutional delay should be weighed in a section 11(b) application.
In Jordan, 34.5 months of the total delay was found to be institutional despite the lack of complexity in the case. The institutional nature of this delay should be favourable to Jordan’s position that the delay was unreasonable.
However, his conduct and circumstances lessened how much determinative weight the trial judge and BCCA gave the prejudice that was caused. The minimal weight given to the lengthy institutional delay seems to suggest that there are certain persons that are more deserving of procedural expediency than are others.
By granting leave to appeal, the SCC may be seeking to clarify how institutional delay should factor into the broader context of a section 11(b) analysis and what constitutes meaningful prejudice.
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