Trial within a Reasonable Time: Deducting Defence Delay Under R. v. Jordan

In R. v. Cody, 2017 SCC 31, the Supreme Court of Canada provides a useful summary of the R. v. Jordan framework.

 The new framework established in Jordan for analyzing whether an accused person’s right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts.

Jordan, at para. 46.

The first step under this framework entails “calculating the total delay from the charge to the actual or anticipated end of trial”

Jordan, at para. 60.

After the total delay is calculated, “delay attributable to the defence must be subtracted”

Jordan, at para. 60.

The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then “depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling”

Jordan, at para. 67.

Defence Delay

Defence delay is divided into two components:

1.     Delay waived by the defence

A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal (Jordan, at para. 61).

2.      Delay that is caused solely by the conduct of the defence

The only deductible defence delay under this component is that which:

(a) is solely or directly caused by the accused person (Jordan, at para. 66); and

(b) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

Evaluating whether defence-caused delay is legitimate

Defence counsel may still pursue all available substantive and procedural means to defend their clients, and will not necessarily be penalized for doing so under the Jordan framework.  What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling.

Legitimacy takes its meaning from the culture change demanded in Jordan. 

R. v. Cody, at para. 35.

Part of this culture change is the greater acknowledgment and stricter application of the precept that it is incumbent on all participants in the criminal justice system—be it the Crown, the courts, the defence, for instance—to be active in avoiding unreasonable delay.

The corollary of the s. 11 (b) right to be tried within a reasonable time is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore 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.”

Jordan, at para. 138; Cody, at para. 33.

To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may be considered; relevant circumstances include the following:

·         The overall number of steps taken;

·         The merit of the position being advanced;

·         The importance of the action/conduct to the accused’s right to full answer and defence;

·         The proximity of the step to the Jordan ceilings;

·         The timeliness of defence applications (including compliance with any notice or filing requirements);

·         Whether the defence action is designed to delay or exhibits marked inefficiency or marked indifference toward delay;

·         inaction on the part of the defence

·         The readiness of the court and Crown to proceed.  In such instances, where the defence is not ready to move forward, the resulting delay should be deducted (Jordan, at para. 64).

See Cody, at para. 32.

The merit of the action is not determinative.  Even where there is merit, it must be coupled with efficiency.

In R. v. Cody, the Supreme Court emphasized the importance of judges to screen a defence application for merit at all stages, and summarily dismiss those that have no reasonable prospect of success.   Even where an application is permitted to proceed, a trial judge’s screening function subsists so that the judge may summarily dismiss an application or request the moment it becomes apparent that it is without merit.

R. v. Cody, at para. 38. See also R. v. Jordan, at para. 63.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).