In R. v. Jordan, 2016 SCC 27 the Supreme Court of Canada changed the analysis of the right to trial within a reasonable time enshrined in s. 11(b) of the Charter. The majority set out the new test in response to two decades of 11(b) litigation which had become, “…too unpredictable, too confusing, and too complex. It [the 11(b) litigation] has itself become a burden on already over-burdened trial courts.”
As noted in a recent report from the McDonald-Laurier Institute, our justice system has become exceedingly complex and essentially impossible to navigate without a lawyer. Even as crime rates continue to drop, criminal litigation has become lengthier and costlier. Enhanced obligations on Crown prosecutors and the weight of jurisprudence in a variety of areas has resulted in many pre-trial motions in almost every significant criminal case.
Most troubling of all, in the words of the Supreme Court, is that a culture of complacency had set in among all participants. Periods of lengthy delay were simply accepted as a natural part of the system.
The system is viewed by many as inefficient, and in desperate need of reform. Chronic delay brings not just economic costs, but social ones as well. Accused persons languish in pre-trial custody or on restrictive bail conditions awaiting trial, and victims lack closure as cases sometimes cannot be completed in any reasonable period of time. Most troubling of all, in the words of the Supreme Court, is that a culture of complacency had set in among all participants. Periods of lengthy delay were simply accepted as a natural part of the system.
In Jordan the Supreme Court and Canada called on all participants in the Criminal Justice system to reject this culture of complacency and work toward the goal of timely justice.
Fundamentally, the Supreme Court took the stunning step of instituting a presumptive ceiling beyond which delay would not be tolerated. The ceiling of 18 months applies to cases in the Ontario Court of Justice, and 30 months in the Superior Court of Justice.
Jordan contains a full criticism of the doctrinal and other problems with the traditional 11(b) analysis mandated by R. v Askov 1990 CanLII 45 (SCC) and R. v. Morin 1992 CanLII 89 (SCC). The heart of the criticism was that the Askov and Morin 11(b) analysis was highly unpredictable, and ultimately ineffective. Decades of case law had still left Canadians with a criminal justice system bogged down by serious delays.
At its essence, however, the Court’s decision demonstrates it concluded something transformational was required in our system of criminal justice. And in so doing, it declared that there should begin an adjustment of the attitudes of Crown prosecutors, defence counsel, and the judiciary, to ensure excessive delay is no longer tolerated.
Whether this is cause for optimism or is proven to be naïve remains to be seen. For all its focus on simplification, the Jordan framework may not be as straightforward as the majority of the Court predicts. The starting point of the Jordan analysis begins with a determination of total delay. Total delay is calculated from the time the charge is laid to the end or anticipated end of the trial. The analysis then deducts “defence delay” from the total delay. This may include waiver or “deliberate and calculated tactics employed by the Defence to delay the trial”.
Where cases fall below the ceiling, the defence may still bring a stay application. In order to succeed the defence must establish it took “…meaningful and sustained steps to have the case tried quickly”  and that the case took “markedly longer” to try than it should have. The Court does note that stays beneath the ceiling will only be granted in clear cases.
In a similar vein, where a case exceeds the new ceilings, Crown counsel may justify the time required by arguing “exceptional circumstances” exist. The circumstances can either be discrete events that cause delay or delay occasioned by the complexity of the case. The Court requires the Crown to make good faith efforts along the way to ameliorate the delay.
Thus, a great deal still turns on how one characterizes what happened in the case and whether the side did what they could to minimize delay. As such, the new test in Jordan will likely involve much court argument over various actions and time periods, as was the case under the prior test.
Was the Crown being reasonable? Were the defence applications frivolous?
In other words, lawyers are good at arguing and there is still plenty to argue about post Jordan. Some will say, “Meet the new test, same as the old test.”
Yet there may still be hope for a brighter future. If we are truly committed to living up to the spirit of Jordan, we will have to be willing to reconsider everything about the current composition of the criminal justice system. In his remarks at the opening of the courts this September, Chief Justice G. Strathy said the following:
In past years, I have spoken of the need to improve the efficiency of the justice system. This summer, the Supreme Court of Canada brought this home with a thunderbolt in its reasons in The Queen v. Jordan. The Supreme Court implored us to work collectively to address what it called a "culture of delay" and established new guidelines for determining when delay is unreasonable in criminal proceedings.
"Real change" it said "will require the efforts and coordination of all participants in the criminal justice system." This includes legislators, public servants, and counsel, but it also includes the judiciary.
I am confident, however that working together, we have the ability to make substantial improvements to address these needs in the coming years.
The key will be to truly work together for the betterment of everyone who interacts with the criminal justice system. As the Court stresses in Jordan, timely trials benefit everyone in the system: defence, complainants and society’s impression of the system as a whole.
Early results are showing both trial and appellate courts take the message from Jordan very seriously. Indeed, as the Ontario Court of Appeal noted in a very recent decision granting a stay of proceedings in a homicide case, it will clearly no longer tolerate the “culture of complacency” so clearly condemned in Jordan.
The change that the Supreme Court desires can happen, but not without our combined goodwill and commitment to embrace these principles.
About the Authors
Jody Berkes is the chair of the OBA Criminal Justice Section and a criminal defence counsel.
Brock Jones is the vice-chair of the OBA Criminal Justice Section and Crown counsel with the Ministry of the Attorney-General. Their views are theirs alone and do not represent the views of the OBA, nor any other organization.
 See R v Kenny, 2016 ONCA 703