Applying R. v. Jordan: Superior Court but no Preliminary Inquiry


In Jordan, the Supreme Court  created a new analytic framework for determining whether a breach of section 11(b) of the Charter had occurred.  At its centre is “a ceiling beyond which delay is presumptively unreasonable.”

The Court set two presumptive ceilings for the period of time from the date an accused person is charged to the actual, or anticipated, end of trial (the total delay): 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

R v Jordan, 2016 SCC 27 (CanLII) at para 46.

R. v. Jordan does not distinguish between a one-step trial process (without preliminary inquiry) and a two-step trial process (with preliminary inquiry) in the Superior Court.

R v Schenkels, 2017 MBCA 62 (CanLII);

R v Cabrera, 2016 ABQB 707 (CanLII), leave to appeal to Alta CA pending.

It does, however, recognize an exception for a trial in the provincial court after a preliminary hearing.  In that exceptional case, the presumptive ceiling is 30 months.

R v Jordan, 2016 SCC 27 (CanLII), at para. 46.


Delay Below the Presumptive Ceiling & Crown’s Decision to Prefer a Direct Indictment


The Crown at its discretion may prefer an indictment at any stage of Provincial Court proceedings (section 577, Criminal Code); however, cases where a preliminary inquiry has not been held or completed because of a direct indictment are not amenable to a specific ceiling other than the 30 months for a superior court trial.

R v Schenkels.

There may be cases where the Defence can show that even though net delay in a case in Superior Court is less than 30 months, it is unreasonable because the Crown preferred a direct indictment and avoided the need for a preliminary inquiry.  The Jordan framework allows for the possibility of stays even though net delay is below the presumptive ceiling where the defence:  1)  took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) the case took markedly longer than it reasonably should have.

R v Schenkels, in obiter;

R v Jordan, at paras. 83-91, 105 [regarding rebutting the presumption of reasonableness when the delay is below the presumptive ceiling].

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca


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