Section 11(b) – Trial within a reasonable time
11. Any person charged with an offence has the right:
- to be tried within a reasonable time;
Other Canadian legislation
The right to a fair trial is also protected under section 2(e) of the Canadian Bill of Rights. Section 7 provides some residual protection against state-caused delay in limited circumstances.
International human rights instruments binding on Canada
Similar guarantees can be found in article 14(3)(c) of the International Covenant on Civil and Political Rights.
The primary purpose of section 11(b) is to protect the following rights of individual accused: (a) the right to security of the person; (b) the right to liberty; and (c) the right to a fair trial (R. v. Jordan, 2016 SCC 27, at paragraph 20). The provision also serves secondary societal interests: (a) the interest in protecting the right of an accused person to humane and fair treatment (b) the interest in having laws enforced, including through ensuring that those who break the law are tried in a timely fashion. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial (R. v. Morin,  1 S.C.R. 771, R. v. Askov,  2 S.C.R. 1199). Timely trials are also important to maintaining overall public confidence in the administration of justice (Jordan, supra at paragraph 25; Askov, supra at 1221).
Section 11(b) recognizes the stigmatization, loss of privacy, and stress and anxiety created by the cloud of suspicion that accompanies criminal proceedings (Morin, supra at 778; R. v. Godin,  2 S.C.R. 3, at paragraph 30). It also recognizes that the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh (Morin, supra), and that delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence (Godin, supra at paragraph 30).
1. Charged with an offence
See the discussion under the general section 11 heading.
2. Any person
Corporations as well as individuals benefit from the protection of section 11(b) (R. v. CIP Inc.,  1 S.C.R. 843).
Section 11(b) is concerned with the period between the laying of the charge and the conclusion of the trial (Morin, supra) (see introductory section under section 11 for the meaning of "charged"). Thus, section 11(b) does not apply to pre-charge delay (R. v. Kalanj,  1 S.C.R. 1594) and the time period only begins to run from the moment the accused is charged (Carter v. The Queen,  1 S.C.R. 981). Section 11(b) also does not apply to appellate delay (R. v. Potvin,  2 S.C.R. 880) or to disciplinary-type proceedings concerned with regulating a profession or occupation in the public interest (Peet v. Law Society of Saskatchewan, 2014 SKCA 109). Relief from excessive delay during pre-charge and appeal periods may be available under other Charter provisions, such as section 7 (Kalanj, supra; Potvin, supra; see also R. v. Hunt, 2017 SCC 25, where the Supreme Court allowed the appeal, substantially for the dissenting reasons of Hoegg J, who held that pre-charge delay should be considered under section 7 of the Charter and not section 11(b)).
There is appellate jurisprudence (both pre- and post-Jordan) indicating that, where a charge is laid and withdrawn and a new charge is laid, there are circumstances under which the time period under paragraph 11(b) will begin to run from the date of the initial laying of the charge (R. c. Ketchate, 2019 QCCA 557, at paragraph 18; R. v. Scott, 2015 SKCA 144; R. v. Milani, 2014 ONCA 536, at paragraph 48 leave to appeal to SCC refused, 36095 (15 January 2015)).
Pre-Jordan jurisprudence indicated that section 11(b) protection includes the right to be sentenced within a reasonable time (R. v. MacDougall  3 S.C.R. 45, at paragraph 2 and 27; R. v. Gallant,  3 S.C.R. 80). It is important to note, however, that in setting out the new analytical framework for assessing whether delay is unreasonable, and therefore an infringement of section 11(b), however, the majority in R. v. Jordan, 2016 SCC 27 specifically refrained from commenting about how the presumptive ceiling should apply to section 11(b) applications brought after a conviction is entered (Jordan, supra at paragraph 49, footnote 2; see also R. v. Warring, 2017 ABCA 128, at paragraph 10 leave to appeal to SCC refused, 37621 (15 November 2017)). Several post-Jordan courts of appeal have omitted the time needed for sentencing from the ceiling calculations (see, for example, R. v. Charley, 2019 ONCA 726, at paragraph 58; R. v. S.C.W., 2018 BCCA 346, leave to appeal to SCC refused, 38403 (28 March 2019); R. v. Dieckmann, 2017 ONCA 575, leave to appeal to SCC refused, 37788 (15 March 2018); R. v. Schenkels, 2017 MBCA 62, leave to appeal to SCC refused, 37664 (23 November 2017); R. v. Stephan, 2017 ABCA 380, affirmed 2018 SCC 21). That said, at least one post-Jordan court of appeal, the Quebec Court of Appeal, indicated, in obiter, that s. 11(b) may apply to sentencing procedures if, for example, these procedures [translation] “go on unnecessarily, regardless of ceilings” (Demers c. R., 2018 QCCA 617, at paragraph 42). In addition, in one of its decisions, the Ontario Court of Appeal decided that the time frame for sentencing must by analyzed in accordance with the principles set out in Jordan, although subject to its own separate presumptive five-month ceiling. R. v. Charley, supra, at paragraphs 77-87).
One of the other remaining areas of uncertainty post-Jordan is whether the presumptive ceiling established by the Supreme Court includes the time taken by judges to render a verdict (outside of sentencing). The appellate courts that have examined this issue in detail have determined that the presumptive ceiling in Jordan does not apply to the time taken by judges to render a verdict, even though section 11(b) of the Charter still applies to it (R. v. K.G.K., 2019 MBCA 9; R. v. Chang, 2019 ABCA 315). The issue is now before the Supreme Court in K.G.K. (judgment reserved).
At least one court of appeal decision has held that the numerical ceilings established in Jordan for calculating whether delay is presumptively unreasonable also apply to young persons charged with contraventions of the Criminal Code and tried in a youth justice court under the Youth Criminal Justice Act (R. v. K.J.M., 2018 ABCA 278, leave to appeal to SCC granted).
4. Section 11(b) analysis: Prior to R. v. Jordan and today
In R. v. Jordan, supra, the Supreme Court of Canada introduced a new analytical framework for determining whether an accused was tried within a reasonable time, as required by section 11(b).
Prior to this judgment, the analysis (outlined most fully in Morin, supra) required a case-by-case approach. Judges were required to assess whether delay had been unreasonable, and therefore a violation of section 11(b), by looking at the length of the delay, less any periods that have been waived by the accused, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that section 11(b) protects (Godin, supra at paragraph 18).
The reasons for the delay were assessed by breaking the delay down into delay attributable to: (i) inherent time requirements of the case; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations of institutional resources (systemic delay); (v) other reasons (Morin, supra). This was not a mathematical application, but a judicial determination. The purpose of the analysis was to provide a framework for the balancing exercise (Morin, supra). According to the Supreme Court,
“[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [section 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” (Morin, supra at 787, cited in Godin, supra at paragraph 18). Different degrees of weight were attached to the delay depending upon to whom or to what it was attributed (R. v. Ghavami, 2010 BCCA 126 at paragraph 52-53).
The majority in Jordan, supra determined that a new framework was necessary after finding that the Morin framework suffered from a number of doctrinal shortcomings that had made it too unpredictable, confusing, and complex for courts to apply (Jordan, supra at paragraphs 32-38). In addition, it failed to address the culture of complacency towards delay that has emerged in the criminal justice system due to a number of factors, including inefficient practices, inadequate institutional resources, and the increased complexity of pre-trial and trial processes since Morin (at paragraph 41).
The majority in Jordan intended this new framework to focus the s. 11(b) analysis “on the issues that matter” and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice (Jordan, supra at paragraph 5). The majority emphasized that all participants in the criminal justice system shared a responsibility in preventing unnecessary delay by targeting its root causes (Jordan, supra at paragraph 137). This includes implementing more efficient procedures in the courts through scheduling practices (Jordan, supra at paragraph 139) and using case management powers to minimize delay (R. v. Cody, 2017 SCC 31, at paragraph 38). The responsibility to actively suggest ways to improve efficiency in the conduct of legitimate applications and motions rests on courts, as well as counsel on both sides (Cody, supra at paragraph 39).
5. Test for infringement as set out in R. v. Jordan
[Note to the reader: Given the significant departure from the previous section 11(b) jurisprudence, many aspects of the new Jordan framework will continue to develop as courts engage with it, particularly for cases that are subject to the transitional qualifications. This document does not purport to comprehensively address each outstanding issue.]
The new framework for assessing whether delay is unreasonable set out in Jordan, supra established numerical ceilings beyond which delay is presumptively unreasonable: 18 months for cases going to trial in provincial court and 30 months for cases going to trial in superior court or cases going to trial in provincial court after a preliminary inquiry (Jordan, supra at paragraph 49). The 30-month ceiling also applies if the accused re-elects a trial in the provincial court following a preliminary inquiry (Jordan, supra at paragraph 49, footnote 3).
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable (Jordan, supra at paragraph 47). To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If the delay cannot be attributed to an exceptional circumstance, it is unreasonable and a stay will follow (Jordan, supra at paragraphs 76, 80).
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the accused to show that the delay is unreasonable. To do so, the accused must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have (Jordan, supra at paragraph 48).
(i) Calculating whether delay falls above or below the presumptive ceiling
The total delay is calculated from the date of the charge to the actual or anticipated end of trial (Jordan, supra at paragraph 60). Once that is determined, delay attributable to the accused is subtracted (Jordan, supra at paragraph 60).
Delay attributable to the accused is either:
Delay that is implicitly or explicitly waived by the accused. For the waiver to be valid, it must be clear and unequivocal, and the accused must have full knowledge of his or her rights and the effect of the waiver on those rights (Cody, supra at paragraph 27; Jordan, supra at paragraph 61). It does not have to be verbalised to be clear (R. c. Rice, 2018 QCCA 198, at paragraph 161). Pre-Jordan jurisprudence indicates that silence by the accused in response to passing remarks about delay by the Crown should not be taken as a waiver (R. v. Smith,  2 S.C.R. 1120 at 1136; R. v. Williamson (2000), 144 C.C.C. (3d) 540 at paragraph 18 (Ont. C.A.), leave to appeal to S.C.C. refused 147 C.C.C. (3d) vi). However, where the accused agrees to a future trial date at a pre-trial conference and does not raise the issue of a s.11(b) challenge with the judge, this will constitute a waiver (R. v. Sapara,  227 A.R. 357 (ABCA), leave to appeal to S.C.C. refused 293 A.R. 291n). Post-Jordan jurisprudence indicates that consent to a trial date without expressing concerns about delay can, but does not necessarily, constitute a waiver (see Warring, supra at paragraph 17, where this was found to be a waiver; see also R. v. Regan, 2018 ABCA 55, at paragraph 82-83, where it was not).
Delay that is caused solely by the conduct of the defence. The only deductible defence delay under this component is that which: (i) is solely or directly caused by the accused person, such as defence counsel not being ready to proceed to trial, but the court and Crown are ready to do so (Jordan, supra at paragraph 63-64; see also R. v. Albinowski, 2018 ONCA 1084); and (ii) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges (Cody, supra at paragraph 30). Illegitimacy is not limited just to positive actions (such as frivolous applications and requests – see Jordan, supra at paragraph 63), but can also extend to inactions or omissions on the part of defence counsel (Cody, supra at paragraph 33; Jordan, supra at paragraph 113), as defence counsel are expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and… us[e] court time efficiently” (Cody, supra at paragraph 33, citing Jordan, supra at paragraph 138; Rice, supra at paragraph 58; R. v. Mallozzi, 2017 ONCA 644, at paragraph 31, leave to appeal to SCC refused, 37775 (12 April 2018)).
To assess the legitimacy of defence conduct, a court will consider both the substance and procedure of defence conduct (Cody, supra at paragraph 32). In other words, both the decision to take a step as well as the manner in which it is conducted can attract judicial scrutiny (Cody, supra at paragraph 32). In doing so, a court may consider the circumstances surrounding the action or conduct, including the overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications (Cody, supra at paragraph 32). Irrespective of its merit, defence action may be deemed not legitimate in the context of a section 11(b) application if it is designed to delay or if it exhibits marked inefficient or marked indifference toward delay (Cody, supra at paragraph 32). Conduct on the part of defence counsel does not need to rise to the level of professional or ethical misconduct to be illegitimate in the context of calculating defence delay (Cody, supra at paragraph 35). The Supreme Court has also noted that determining the legitimacy of defence conduct is “by no means an exact science”. However, this assessment is something that first instance judges are uniquely positioned to gauge (Cody, supra at paragraph 31; Jordan, supra at paragraph 65), based on the evidence and the submissions of the parties (Rice, supra at paragraph 67).
The Supreme Court has emphasized that the list of what constitutes “delay caused solely or directly by the conduct of the defence” is not closed, and it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (Cody, supra at paragraph 30; Jordan, supra at paragraph 64).
Jordan specified that defence actions that are legitimately taken to respond to the charges do not constitute defence delay (Jordan, supra at paragraphs 65; Godin, supra at paragraph 11; Morin, supra at 793-794). An accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case (Cody, supra at paragraph 29, 34). Rather, this deduction is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, supra at paragraph 113).
Time needed for defence preparation can include time needed to retain counsel (R. v Regan, supra, at paragraph 61) and time for new counsel to prepare (R. c. Guimont, 2017 QCCA 1754, at paragraph 50). That said, the right to the counsel of one’s choice is not absolute (R. c. Rice, supra, at paragraph 74). In at least one post-Jordan case, the court attributed some of the time associated with retaining new counsel as defence delay (see R. v Gordon, 2017 ONCA 436, at paragraph 7). However, where delay resulted from an accused submitting a Legal Aid application and subsequently re-submitting it after seeking a Rowbotham order, one court post-Jordan concluded that this was properly attributable to institutional delay (D.M.S. v. R., 2016 NBCA 71, at paragraph 24).
In calculating defence delay in cases involving joint accused, courts have held that delay by one accused should not be attributed to all. In such cases, an individualized approach must be taken to the attribution of defence-caused delay (R. v. Gopie, 2017 ONCA 728, at paragraph 128; see also R v. Manasseri, 2016 ONCA 703 at paragraph 329, leave to appeal refused,  S.C.C.A. No. 513).
Pre-Jordan jurisprudence recognized that while there is a heavy onus on the Crown to provide timely disclosure (R. v. Collins (M.E.),  2 S.C.R. 1104), defence counsel bears some responsibility to exercise due diligence in seeking it (R. v. Sanghera, 2014 BCCA 249, at paragraph 118, affirmed 2015 SCC 13; D.M.S. v. R., supra at paragraph 27). Post-Jordan jurisprudence has indicated that late disclosure of evidence by the Crown, which led the defence to seek an adjournment, is not attributable to the defence (R. v. Pyrek, 2017 ONCA 476, at paragraphs 22; R. v. D.A., 2018 ONCA 96, at paragraphs 21-22).
(ii) Where presumptive ceiling is exceeded
Where the total delay (minus defence delay) exceeds the presumptive ceiling, it is presumptively unreasonable. However, the Crown may rebut this presumption by showing that the delay is reasonable due to exceptional circumstances (Jordan, supra at paragraph 68).
Exceptional circumstances are defined as those that lie outside the Crown’s control in the sense that they are: (a) reasonably unforeseen or reasonably unavoidable, and (b) such that Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise (Jordan, supra at paragraph 69).
While the determination of whether circumstances are “exceptional” will ultimately depend on the trial judge’s good sense and experience, they will generally fall under one of two categories:
Discrete events. Discrete exceptional events or circumstances are ones that are (i) reasonably unforeseeable or unavoidable, and (ii) could not be reasonably mitigated by the Crown or the justice system (Cody, supra at paragraph 48; Jordan, supra at paragraph 73 and 75). Delay caused by discrete events result in quantitative deductions of particular periods of time from the net total (Cody, supra at paragraph 48).
The requirement under the first prong of the test is that the event at issue be reasonably unforeseeable or reasonably unavoidable – it does not impose a standard of perfection upon the Crown (Cody, supra at paragraph 58). These could include not only medical and family emergencies (MacDougall, supra; R. v. Coulter, 2016 ONCA 704 at paragraphs 81-82) but also unforeseeable or unavoidable developments that may cause the case to go awry, such as a complainant unexpectedly recanting while testifying. This category can also include inadvertent oversights and mistakes, as well as circumstances where the trial goes longer than reasonably expected despite good faith efforts to establish realistic time estimates (see, for example, R. v. Antic, 2019 ONCA 160). This latter example requires judges to be alive to the practical realities of trials in determining whether this time should be subtracted from the total period of delay (Cody, supra at paragraph 58; Jordan, supra at paragraphs 72-75). Delay that is the product of systemic limitations in the court system (such as where both the Crown and defence are ready to proceed, but the court cannot accommodate them) does not constitute a discrete event and should not be deducted (Cody, supra at paragraph 55; Jordan supra, at paragraph 81).
Where a discrete event was reasonably unforeseeable, it is incumbent upon the Crown to take immediate steps to address it. Where the Crown fails to do so, this period will not be deducted (Cody, supra at paragraph 52). That said, the requirement under the second prong of the test is that of reasonableness: the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement (Cody, supra at paragraph 54).
Particularly complex cases. This category is intended to account for particularly complex cases where the nature of the evidence or issues require an inordinate amount of trial or preparation time, such that the delay is justified (Cody, supra at paragraph 64; Jordan, supra at paragraph 77, 80). This could include cases involving novel or complicated legal issues, involving multiple co-accused (e.g. R. v. Vassell, 2016 SCC 26, at paragraph 6; R. v. Singh, 2016 BCCA 427 at paragraphs 87, 89; R. v. Bulhosen, 2019 ONCA 600, at paragraphs 78-79) or a large number of witnesses (Jordan, supra at paragraph 77; R. v. Bulhosen, supra). The complexity of a case is not limited to the complexity of the trial itself, but can also include the complexity of the preparation needed for the case, such as where there is extensive police investigation (R. v. Picard, 2017 ONCA 692, leave to appeal to SCC refused, 37802 (8 August 2018)). Prior to Jordan, cases that were recognized as being particularly complex included multi-count drug indictments with numerous Charter challenges (R. v. Fehr, 2004 BCCA 53); dangerous offender and long-term offender applications (R. v. Vincent (2003), 114 C.R.R. (2d) 163 (Ont. S.C.J.)); and extradition proceedings, where it is necessary to bring an accused person to Canada (R. v. MacIntosh, 2011 NSCA 111 at paragraphs 69, 106, affirmed 2013 SCC 23).
Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Cody, supra at paragraph 64; Jordan, supra at paragraph 80). Delay caused by a single isolated event that has features of complexity should not be deducted (Cody, supra at paragraph 65).
As part of the assessment of overall case complexity, the Supreme Court has specified that, once a period of delay has been deducted as defence delay or a discrete event, it should not be double-counted by taking it into account when assessing case complexity (Cody, supra at paragraph 64, footnote 2).
Under either category of exceptional circumstances, the Crown has the onus of showing that it took reasonable steps to avoid and address problems before the delay exceeded the ceiling, even if these measures were ultimately unsuccessful. It is not enough to simply point to a past difficulty or blame chronic institutional delay. In complex cases, this includes whether the Crown developed and followed a concrete plan to minimize the delay occasioned by such complexity (Jordan, supra at paragraphs 70, 79; R. v. Auclair, 2014 SCC 6, at paragraph 2; R. v. Bulhosen, supra, at paragraphs 80-84). Where the Crown has taken reasonable steps to avoid and address delay: what counts is effort and initiative, not success (R. v. Bulhosen, supra, at paragraph 83).
Where the Crown chooses to prosecute two or more accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the section 11(b) rights of an individual accused (Vassell, supra at paragraph 5). In some situations, the Crown may have to sever the proceedings to vindicate the section 11(b) rights of one the accused (Vassell, supra at paragraph 10; Manasseri, supra at paragraph 323, discussed in the context of a case subject to the transitional qualifications set out in Jordan).
If the delay cannot be attributed to an exceptional circumstance, it is unreasonable and a stay will follow (Jordan, supra at paragraphs 76, 80).
(iii) Where the ceiling has not yet been met
Where the presumptive ceiling has not yet been met, a court may nevertheless find that the delay in a particular case was unreasonable. In such cases, the onus is on the accused to do so by establishing two things:
It took meaningful steps that demonstrate a sustained effort to expedite the proceedings, taking into consideration what the accused could have done and what it actually did to get the case heard as quickly as possible. To meet this criterion, the accused must demonstrate that it made more than token efforts to expedite the process. This could include attempting to set the earliest possible hearing dates, being cooperative with and responsive to the Crown and the court, and putting the Crown on timely notice when delay was becoming a problem. In making this determination, trial judges should not assess whether each of the accused’s decisions were made perfectly, but whether it acted reasonably (Jordan, supra at paragraphs 84-85).
The case took markedly longer than it reasonably should have. This type of assessment will require a judge to consider a variety of factors, including the complexity of the case, whether the Crown took reasonable steps to expedite the proceedings, and local considerations, such as how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances. This assessment is not based on precise calculations or a focus on minutiae, but rather through a bird’s eye view of the case (Jordan, supra at paragraphs 87-90).
Where the accused cannot establish these two criteria, the section 11(b) application must fail (Jordan, supra at paragraph 82).
(iv) For cases already in the system
Jordan specified that the new framework applies to cases already in the system on the date of the decision (July 8, 2016) (Cody, supra at paragraph 25; Jordan, supra at paragraph 95; R. v. Williamson, 2016 SCC 28). However, these cases are subject to two qualifications that enable courts to exercise some discretion to allow a matter to proceed where the ceiling has already been exceeded or to stay a matter for delay where the ceiling has not yet been reached (Jordan, supra at paragraph 95). These transitional considerations may be taken into account as a third form of exceptional circumstances (Cody, supra, at para. 46; Jordan, supra at paras. 94-98). This should be the final step in the analysis, taken only where the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity (Cody, supra at paragraph 67).
In determining whether the delay is unreasonable in these transitional cases, trial judges are required to apply the new framework flexibly and contextually, with a view to the parties’ reliance on the previous state of the law (Jordan, supra at paragraph 94). Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise (Cody, supra at paragraph 68).
In cases where the delay falls above the ceiling, the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied (Cody, supra at paragraph 68; Williamson, supra, at paragraph 24; Béliveau v. R., 2016 QCCA 1549). This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice.
While certain factors are no longer explicitly considered in the new Jordan framework, for cases already in the system, factors considered under the previous framework, including prejudice and the seriousness of the offence, can inform whether the parties’ reliance on the previous state of the law was reasonable (Jordan, supra at paragraph 96; Williamson, supra at paragraph 30; M.G. v. R., 2019 QCCA 1170, at paragraphs 102-103; Dupuis c. R., 2016 QCCA 1930, at paragraph 32, leave to appeal to SCC refused, 37355 (9 March 2017); Béliveau c. R., supra, at paragraphs 129-131; see also Williamson, supra at paragraphs 33-37, as well as Cody, supra at paragraph 70, for a discussion of the difficulties that stem from considering the seriousness of the offence as an analytical factor). In addition, trial judges should take into account the high level of tolerance for institutional delays that persist in their particular jurisdictions (Jordan, supra at paragraphs 97, 100-102). Institutional delay begins to run when the parties are ready for trial but the system cannot accommodate them (Morin, supra).
Where delay falls below the ceiling, the trial judge will not require the accused to demonstrate that it took initiative to expedite matters, as this was not required under the Morin framework. The two criteria — accused’s initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law (Jordan, supra at paragraph 99). For these cases, although the accused will not be required to demonstrate that it took initiative to expedite any such initiative would assist the accused to show that the delay markedly exceeded what was reasonably required (Jordan, supra at paragraph 99). Institutional delay that was reasonably acceptable in the relevant jurisdiction under the previous framework will also be considered as a component of the reasonable time requirements (Jordan, supra at paragraph 100).
In setting out these transitional qualifications, the Supreme Court noted that, as a general rule, its judgment should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one, acknowledging that change takes time (Jordan, supra at paragraph 102). Rather, these measures constitute an attempt to find a balance between granting stays of proceedings en masse simply because problems with institutional delay currently exist, and holding the section 11(b) rights of accused persons in abeyance while the system works to respond to this new framework.
In considering the transitional exceptional circumstance, the Supreme Court has noted that trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, as discussed above, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Cody, supra at paragraph 71, citing Jordan, supra at paragraph 96).
6. Procedure and remedy
An inquiry into unreasonable delay is triggered by an application under section 24(1) of the Charter (Morin, supra). The application should normally be made to the trial court, although a court of superior jurisdiction may entertain an application (R. v. Smith, supra). For example, this would be appropriate were the trial court itself is implicated in the delay (R. v. Rahey,  1 S.C.R. 588). Where the delay is above the ceiling, a full section 11(b) analysis will only be triggered where the Crown seeks to rely on exceptional circumstances.” (Jordan, supra at paragraph 111).
An application may be brought prior to or at trial. A violation of this right generally cannot be first raised on appeal (R. v. Neidig, 2018 BCCA 485, at paragraph 112; R. v. S.C.W., supra, at paragraph 27; R. v. Mason, 2003 NSCA 139, at paragraph 12; R. v. Rabba (1991) 3 OR (3d) 238 (Ont CA) (Arbour J.A., as she then was)).
A stay of proceedings is the minimum remedy for a breach of this right because the court has lost jurisdiction to proceed (Rahey, supra; see also Jordan, supra at paragraphs 76 and 114). Excessive delay that does not reach constitutional limits can be a factor in mitigation of sentence (R. v. Bosley,  O.J. No. 2656 (Ont. C.A.)).
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