R. v. Jordan: Bypassing the Preliminary Inquiry doesn't Affect 30-Month Ceiling
Section
11(b) of the Charter provides: “Any person charged with an offence
has the right … (b) to be tried within a reasonable time”.
R.
v. Jordan, 2016 SCC 27 established a new framework for the s.
11(b) analysis. It was designed to be simple in its application and
predictable in its effect. It replaced the framework articulated in
R. v. Morin, [1992] 1 S.C.R. 771, which the majority in the
Supreme Court described as too unpredictable, too confusing, and too
complex.
R.
v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 38.
The
Jordan framework is now well-understood. At the centre of the new
framework is a “presumptive ceiling” on the time between the date
of the charges and the actual or anticipated end of the trial. Delay
beyond that ceiling is presumptively unreasonable.
Jordan,
at para. 46.
For
cases tried in provincial courts, the ceiling is 18 months. For cases
tried in superior courts, or in provincial courts after a preliminary
inquiry, it is 30 months.
The
Crown may prefer an indictment in superior court and thus bypass the preliminary inquiry. While this can significantly reduce the amount of time between charge and trial, it does not affect the Jordan ceiling of 30-months for trials in the
superior court.
In
R. v. Bulhosen, 2019 ONCA 600, the appellants argued that
because the Crown had preferred an indictment while the case was in
the Ontario Court of Justice, the proceeding became a “one-stage
proceeding” (a term used in pre-Jordan jurisprudence) and
that the applicable ceiling should, therefore, be 18 months. The Court of Appeal
for Ontario was not persuaded.
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