Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within a Reasonable Time

On July 8, 2016, the Supreme Court of Canada released R v Jordan2016 SCC 27 [Jordan], a decision that fundamentally changed the framework that determines whether an accused has been tried within a reasonable time under s 11(b) of the Charter. While the impact of explicitly overthrowing a well-established framework with years of precedent remains to be seen, it is clear that this decision has already begun to have a radical impact on the Crown.

What R v Jordan Changed

Jordan begins with a declaration by the Supreme Court that the old framework for assessing s 11(b) violations, established in R v Morin[1992] 1 SCR 771 [Morin], suffered from doctrinal and practical problems that have led to a culture of delay and complacency in the courts. It is for these reasons that the Supreme Court decided to replace the previous contextual analysis with a hard-line presumptive ceiling. The Jordan presumptive ceiling is calculated from the laying of a charge to the end of the trial. Any delay attributable or waived by the defence is deducted from the calculation. Criminal cases in provincial courts now have a presumptive ceiling of 18 months, whereas the ceiling is extended to 30 months for criminal cases in superior courts or cases tried in provincial courts after a preliminary inquiry. The old Morin regime strictly classified the root cause of the delay (either as institutional, defence, or Crown delay). The amount of institutional and Crown delay was examined contextually based on a general guideline of 8-10 months for provincial court offences. Jordan now counts institutional delay (including the inherent time required to bring a case to trial, like first appearances and the providing of disclosure) towards the presumptive ceiling and seeks to reduce the amount of “micro-counting,” or breaking up the reason for a delay into its smaller parts.

When the presumptive ceiling is exceeded, it is automatically presumed that the delay is unreasonable and that prejudice has occurred. The onus lies on the Crown to prove that the delay was in fact reasonable, otherwise a stay of proceedings will be granted. The Crown can do so in two ways: 1)  rely on an exceptional circumstance or a discreet event that is reasonably unforeseen or reasonably unavoidable and cannot be reasonably remedied; or 2) argue that the case was particularly complex due to the nature of the evidence or the issues.

The accused can also obtain a stay of proceedings for delays occurring below the Jordan ceiling if he or she can prove that: 1) the case took markedly longer than it should have; and 2) that he or she made a sustained effort to expedite the proceedings. While jurisprudence has yet to develop in this area, it appears that this threshold is a hard burden to meet.

Lastly, wanting to avoid a sudden mass of 11(b) stays of proceedings, the Supreme Court allowed for a transitionary period whereby parties can argue their case under the old Morin law if they had justifiably relied on it.

Impact on the Crown

The 5-4 majority decision of Justices Moldaver, Karakastanis, Brown, Abella, and Côté has fundamentally changed the way in which the Crown must now organize itself and prosecute cases.

While some of the positives of the decision may include providing a clear deadline by which cases need to be prosecuted, it also has the effect of giving the Crown no incentive to accelerate cases that would be completed well below the Jordan guidelines. The stark deadline also forces the Crown to insist on s 11(b) defence waivers and to viciously protect the record, even during routine adjournment stages. To make matters worse, the overarching timelines set by Jordan appear to be arbitrarily chosen.

Cases that involve voluminous disclosure or that are particularly complex will force the Crown to start the trial in a defensive position. It is unlikely that the already-stressed court system will be able to accommodate an acceleration of these cases in several jurisdictions, especially because the number of judges, court staff, and general resources allocated to the courts has not changed since R v Jordan was released. Therefore, the defendants most likely to benefit from this change are those facing complex charges like white-collar crime and corruption, which tends to be people from a certain socio-economic class.

The Supreme Court also removed the contextual consideration of the seriousness of the offence and prejudice to the accused, which were included in the previous Morin analysis. The Crown can no longer rely on the institutional failings in the court system as a reason for why a case exceeded the presumptive 11(b) threshold. Therefore, R v Jordan could result in multiple stay of proceedings for serious charges due to no fault of the Crown. Furthermore, as Peter Brady, Michael Rosenberg, and Trevor Courtis have pointed out, corporate defendants facing regulatory prosecutions had to establish that they suffered “irremediable prejudice” under the previous regime. This burden has now been eliminated, as the Supreme Court says prejudice should be inferred as soon as the Jordan threshold is surpassed.

Lastly, the Jordan framework becomes additionally complicated when the Crown alleges that some of the delay is due to defence delay. First, the Crown must argue that the deduction of the defence delay results in the Jordan threshold not being exceeded. Since the defence delay may not be accepted by the judge, the Crown must argue in the alternative that even if the threshold was exceeded, the delay was reasonable. With the additional ability to plead under the old framework and precedent, as allowed under the  transitionary period in Jordan, the Crown could be forced to plead in the further alternative that the old law should be accepted and the delay was reasonable under the Morin analysis. This option results in the Crown being responsible for pleading multiple alternatives when they already have a stressed caseload.

Conclusion

It is clear that R v Jordan has fundamentally changed how the Crown must prosecute and organize itself. While this article has been highly critical of the changes made by Jordan, that does not mean that the new framework does not have the potential to create a positive impact. Many cases may be completed well below the Jordan deadline, while defendants facing more complex charges may benefit.

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