Trial Within a Reasonable Time (Jordan)
The right to be tried within a reasonable time is guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms. Every person charged with an offence has the right to a trial within a reasonable time. In R v Jordan, 2016, the Supreme Court of Canada restructured the framework for assessing delay, establishing presumptive ceilings beyond which delay is presumptively unconstitutional. The framework has fundamentally reshaped Canadian criminal practice.
The Jordan ceilings
The Supreme Court established two presumptive ceilings: 18 months from charge to the anticipated end of trial in the Provincial Court (Ontario Court of Justice); 30 months from charge to the anticipated end of trial where the matter proceeds in Superior Court (or where a preliminary inquiry is held). Delay below the ceiling is presumptively constitutional but can still be challenged where defence delay attributable to systemic issues is excessive. Delay above the ceiling is presumptively unconstitutional unless the Crown can justify the excess.
Defence delay deductions
Time attributable to defence delay is deducted from the total to calculate net delay. Defence delay includes: defence-requested adjournments (where defence circumstances caused them); defence applications and motions (where their length is disproportionate); and defence unavailability for offered trial dates. Crown and institutional delay count against the ceiling; defence delay does not. Careful tracking of every adjournment and the reasons for it is essential.
Crown justification
Where delay exceeds the ceiling, the Crown can justify it by establishing exceptional circumstances — discrete events the Crown could not reasonably have anticipated or remedied (a witness's medical emergency, an unforeseeable procedural complication) or the inherent complexity of the case. The Crown must also show it took reasonable steps to minimize delay. The standard is demanding, and many post-Jordan applications have succeeded where the Crown could not meet it.
The remedy: stay
Where section 11(b) has been breached, the remedy is a judicial stay under section 24(1). The prosecution terminates. There is no "lesser remedy" for delay — the Court in Jordan rejected attempts to use evidence exclusion or other partial remedies. The all-or-nothing nature of the stay underscores the gravity of the right and the Crown's responsibility to manage delay.
Strategic implications
Jordan reshaped defence strategy. Counsel now track delay from the moment charges are laid, identifying every adjournment and assessing its proper attribution. Where the ceiling is approaching, applications are filed with attention to the specific calculations. Mass Tsang's criminal lawyers integrate Jordan analysis into every file from the first appearance. For more, see our explainer on trial within a reasonable time.
Related glossary terms
