Applying the Jordan Framework When the Delay is Below the Presumptive Ceiling


Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”.  

 The doctrinal framework for the right to be tried within a reasonable time is set out in R. v. Jordan, 2016 SCC 27.

Under the Jordan framework, where the delay falls below the presumptive ceiling of 18 months (for cases going to trial in the provincial court), the onus is on the defence to show the delay was unreasonable. The defence must show:

(i)     it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative); and

(ii)   that the case took markedly longer than it reasonably should have: Jordan, at para. 82 (reasonable time requirement).

In transitional cases, the two aforementioned criteria are to be applied contextually, with consideration given to the parties’ reliance on the previous state of the law: Jordan, at para. 99.

As the Supreme Court noted in Jordan, stays beneath the presumptive ceiling are expected to be rare.


Defence Initiative — Meaningful and Sustained Steps

It falls to the defence to show that

·         it attempted to set the earliest possible hearing dates,

·         was cooperative with and responsive to the Crown and the court,

·         put the Crown on timely notice when delay was becoming a problem, and

·         conducted all applications (including the s. 11(b) application) reasonably and expeditiously.


Reasonable Time Requirements of the Case — Time Markedly Exceeded

The reasonable time requirements of a case derive from a variety of factors, including

·         the complexity of the case

o   all other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins.

·         local considerations

o   In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

·         whether the Crown took reasonable steps to expedite the proceedings.



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