Court headnote

R. v. J.F.
Collection
Supreme Court Judgments
Date
2022-05-06
Neutral citation
2022 SCC 17
Report
[2022] 1 SCR 330
Case number
39267
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330
Appeal Heard: November 30, 2021 Judgment Rendered: May 6, 2022 Docket: 39267
Between:
Her Majesty The Queen Appellant
and
J.F. Respondent
- and -
Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners
Official English Translation
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 80)
Wagner C.J. (Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)
Dissenting Reasons: (paras. 81 to 103)
Côté J.
Her Majesty The Queen Appellant
v.
J.F. Respondent
and
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Criminal Lawyers’ Association of Ontario,
Association québécoise des avocats et avocates de la défense and
Association des avocats de la défense de Montréal-Laval-Longueuil Interveners
Indexed as: R. v. J.F.
2022 SCC 17
File No.: 39267.
2021: November 30; 2022: May 6.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Right to be tried within reasonable time — Order for new trial — Whether, after new trial is ordered, accused can file motion under s. 11(b) of Canadian Charter of Rights and Freedoms for stay of proceedings based on delay in accused’s first trial — Whether presumptive ceilings established in Jordan apply to retrial delay.
In February 2011, the accused was charged with seven counts involving sexual offences against his daughter. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, following a preliminary inquiry. Argument was completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, the Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, the accused was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittal and ordered a new trial. Before the retrial began, the accused filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The motion concerned the delays in the first trial and the retrial.
In assessing whether the s. 11(b) right had been infringed, the trial judge combined the delays for the first trial and the retrial. She held that the accused’s right to be tried within a reasonable time had been infringed, and she entered a stay of proceedings. The Court of Appeal dismissed the Crown’s appeal, finding that it had not rebutted the presumption that the total delay between the charges and the end of the argument at the first trial was unreasonable.
Held (Côté J. dissenting): The appeal should be allowed, the stay of proceedings set aside and the case remanded to another judge of the Court of Québec for the continuation of the trial.
Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. The ceilings set in Jordan apply to retrial delay, but when an accused brings a motion for a stay of proceedings for unreasonable delay after an appeal court has ordered a new trial, only the delay in that trial will be counted in calculating delay.
Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows that an accused must raise the unreasonableness of trial delay in a timely manner. It is generally recognized that an accused who raises the unreasonableness of delay after trial, and particularly after conviction, is not acting in a timely manner. It is therefore only exceptionally that an infringement of the right to be tried within a reasonable time can be raised by an accused for the first time on appeal.
However, waiver of delay cannot be inferred solely from an accused’s silence or failure to act. For a court to find that delay has been waived, an accused must take some direct action from which a consent to delay can be properly inferred. A court cannot regard an accused’s long silence or lengthy inaction as amounting to a clear and unequivocal waiver or an acceptance of the delay associated with a past trial. Any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right. Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. Waiver is established on the basis of the accused’s conduct, having regard to the circumstances of each case.
Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial. Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources. Bringing a motion in a retrial for a stay of proceedings based on first‑trial delay is contrary to the parties’ duty to take proactive measures and interferes with the proper administration of justice. While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist, this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected. Section 11(b) does not allow an accused to benefit unduly from the lengthening of delay. This means that an accused may not raise first‑trial delay once a new trial is ordered. The computation of delay restarts at zero when such an order is made. However, a court may be able to consider first‑trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances.
After a new trial is ordered, the accused regains the status of a person charged with an offence. Delay following such an order is trial delay and therefore falls within Jordan, so the presumptive ceilings established in Jordan apply to the delay in the new trial. It is not appropriate to adopt different presumptive ceilings for retrials. It has not been shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard. The presumptive ceilings established in Jordan provide a uniform general framework for assessing the reasonableness of the delay between the charge and the end of trial, irrespective of the varying degrees of prejudice experienced by different groups and individuals. The creation of a new ceiling would be incompatible with the uniform‑ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried and to be used by courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable.
Two factors can be considered in analyzing the reasonableness of retrial delay in order to take account of the specific nature of this context: retrials must be prioritized when scheduling hearings, and retrials are, as a general rule, to be conducted in less time than first trials. These factors must be assessed contextually, as required by Jordan. In this regard, first‑trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first‑trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the fact that this contextual element is considered does not allow an accused to raise first‑trial delay indirectly; it is the retrial delay that remains the focus of the analysis.
In this case, the accused did not act in a timely manner. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion. As a result, the delay in his first trial cannot be considered in calculating the total delay. Only the delay since the order for a new trial is counted. The total delay between the order for a new trial and the actual or anticipated end of that trial, 10 months and 5 days, is well below the 30‑month presumptive ceiling. None of the factors associated with this specific context supports a finding that the accused’s right to be tried within a reasonable time was infringed: the anticipated retrial delay is very short and the case was prioritized. The delay is reasonable and there are no grounds for a stay of proceedings.
Per Côté J. (dissenting): The appeal should be dismissed and the stay of proceedings upheld. There is agreement with the main principles in the majority’s analysis. The approach adopted reflects the culture shift required by Jordan and provides a pragmatic solution. However, the specific context of the transition from the subjective Morin framework to the prospective Jordan framework created an exceptional circumstance. In this context, even a delay of 10 months and 5 days in a non‑complex case like this one is sufficiently long to justify taking the first‑trial delay into account. Because the issue of reasonableness of delay arises in a context where the accused’s first trial had been completed and judgment had been reserved by the time the Court rendered its decision in Jordan, this is one of the exceptional cases in which a stay of proceedings must be entered even though the accused did not raise the infringement of s. 11(b) until after a retrial was ordered.
The accused cannot be faulted for not acting proactively and filing a motion for a stay of proceedings before the end of his first trial or in the Court of Appeal. He had a right to have the trial completed and to obtain an acquittal. Fighting to secure an acquittal is a right, not a strategy. Nor can the accused be faulted for not acting in keeping with a culture shift that had not occurred at the time of the events. Between the charges in February 2011 and the filing of the motion for a stay of proceedings in December 2018, only a period of 39 days from the first trial can be attributed to him, in nearly 8 years of proceedings. In reality, the Crown failed to prioritize the accused’s case and the system failed to try him in a diligent and reasonable manner. The presumption that the delay is reasonable is rebutted.
Cases Cited
By Wagner C.J.
Applied: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; considered: R. v. Morin, [1992] 1 S.C.R. 771; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Rabba (1991), 64 C.C.C. (3d) 445; R. v. Collins, [1995] 2 S.C.R. 1104; referred to: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Rice, 2018 QCCA 198; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14; R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391; R. v. C.D., 2014 ABCA 392, 588 A.R. 82; R. v. Brown, [1993] 2 S.C.R. 918; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194; Phillips v. R., 2017 QCCA 1284; R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; R. v. Hebert, [1990] 2 S.C.R. 151; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Conway, [1989] 1 S.C.R. 1659; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Boisvert, 2014 QCCA 191; R. v. Barros, 2014 ABCA 367, 317 C.C.C. (3d) 67; R. v. Nikkel, 2009 MBCA 8, 240 Man. R. (2d) 1; R. v. Fitts, 2015 ONCJ 746; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721; R. v. JEV, 2019 ABCA 359, 381 C.C.C. (3d) 392; R. v. J.A.L., 2019 ABCA 415; Gakmakge v. R., 2017 QCCS 3279; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415; R. v. Richard, 2017 MBQB 11, 375 C.R.R. (2d) 61.
By Côté J. (dissenting)
R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Morin, [1992] 1 S.C.R. 771; R. v. Rabba (1991), 64 C.C.C. (3d) 445; M.G. v. R., 2019 QCCA 1170.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11(b).
Authors Cited
Gold, Alan D., Michael Lacy and Laura Metcalfe. A Practical Guide to the Charter: Section 11(b). Toronto: LexisNexis, 2019.
Vauclair, Martin, et Tristan Desjardins. Traité général de preuve et de procédure pénales, 28e éd. Montréal: Yvon Blais, 2021.
APPEAL from a judgment of the Quebec Court of Appeal (Levesque, Hogue and Sansfaçon JJ.A.), 2020 QCCA 666, [2020] AZ‑51688190, [2020] Q.J. No. 3213 (QL), 2020 CarswellQue 8461 (WL), affirming a decision of Roy J.C.Q., 2019 QCCQ 1236, [2019] AZ‑51576046, [2019] J.Q. no 1737 (QL), 2019 CarswellQue 2045 (WL). Appeal allowed, Côté J. dissenting.
Nicolas Abran and Justin Tremblay, for the appellant.
Diego Gramajo, for the respondent.
Tracy Kozlowski and Samuel Greene, for the intervener the Attorney General of Ontario.
Liliane Bantourakis and Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia.
Matthew W. Griener, for the intervener the Attorney General of Alberta.
Christine Mainville and Andrew Burgess, for the intervener the Criminal Lawyers’ Association of Ontario.
Jean‑Sébastien St‑Amand Guinois, for the intervener Association québécoise des avocats et avocates de la défense.
Walid Hijazi and Julia Blais‑Quintal, for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil.
English version of the judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. delivered by
[1] The Chief Justice — In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, this Court delivered a clear message to all participants in the criminal justice system in Canada: everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms. By creating ceilings beyond which trial delay is presumptively unreasonable, the Court developed a prospective approach that allows the various participants to know, from the outset of the proceedings, the temporal limits within which the trial must take place.
[2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?
[3] The first question requires this Court to determine when an accused must indicate that their right to be tried within a reasonable time has not been respected. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. That being said, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework.
[4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.
I. Background
[5] In February 2011, J.F. was charged by indictment with seven counts involving sexual offences against his daughter. The charges covered a period from 1986 to 2001.
[6] The preliminary inquiry was completed on March 28, 2012. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, district of Montréal.
[7] On December 4, 2013, the prosecution announced a voir dire on the admissibility into evidence of the complainant’s video statement. The trial was then adjourned, and it resumed on October 20, 2014. On October 24, 2014, the voir dire ended and the trial judge reserved decision on it. Just over six months later, on May 8, 2015, the judge rendered his decision and found that the complainant’s statement was inadmissible.
[8] The trial resumed on January 18, 2016 and ended the same day. Argument was postponed and was then completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, this Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, J.F. was acquitted on all seven counts.
[9] The Crown appealed the decision and, on June 13, 2018, the Quebec Court of Appeal set aside the acquittal on the ground that the trial judge had analyzed the complainant’s credibility by relying erroneously on stereotypes and prejudices (2018 QCCA 986). It therefore ordered a new trial.
[10] On October 15, 2018, the parties agreed on dates for the retrial, which was to last 10 days. The retrial was then scheduled for April 29 to May 31, 2019.
[11] On December 28, 2018, J.F. filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. That was the first time he alleged an infringement of his right to be tried within a reasonable time. In January 2019, the trial dates were moved up to March 11 to April 18, 2019. The motion for a stay of proceedings was argued on February 5, 2019.
II. Decisions Below
A. Court of Québec, 2019 QCCQ 1236 (Judge Roy)
[12] After making a global assessment of the delay for the first trial and the retrial, the trial judge held that the respondent’s right to be tried within a reasonable time had been infringed.
[13] She rejected the Crown’s argument that the accused’s long silence regarding the delay amounted to a waiver of his right to be tried within a reasonable time, because such a waiver must be clear, unequivocal and informed. Noting that there was uncontested evidence showing that the accused was concerned about the delay, the judge found that he had never waived his right to be tried within a reasonable time.
[14] The judge then calculated the delay. She found a gross delay of 72 months and 3 days between the charges and the verdict at the first trial, and she determined that, of that total, 70 months and 25 days were not attributable to the defence.
[15] In the Court of Québec, the Crown did not challenge the calculation or categorization of the first‑trial delay. Nor did it argue that there were exceptional circumstances or that the transitional circumstance provided for in Jordan applied. In its opinion, only the retrial delay had to be considered, that is, 10 months and 5 days. The judge rejected that argument. Taking a [translation] “global and contextual” approach to delay, she found that the first‑trial delay could not be disregarded in this case given that it “is clearly unreasonable” (paras. 73 and 75 (CanLII)). Not to consider it would be to deny the accused’s rights and would be contrary to the shift in culture sought by this Court. The judge held that the entire delay, including the first‑trial delay, had to be counted. She granted the motion based on unreasonable delay and entered a stay of proceedings.
B. Quebec Court of Appeal, 2020 QCCA 666 (Levesque, Hogue and Sansfaçon JJ.A.)
[16] The Crown appealed the trial judge’s decision and argued that, under the Jordan framework, first‑trial delay cannot be included once an appeal court has ordered a new trial. For the reasons given by Levesque J.A., the Quebec Court of Appeal dismissed the appeal and upheld the stay of proceedings, though it adopted a different approach than the trial judge.
[17] The Court of Appeal stated that the calculation of delay must restart at zero in cases where a new trial is ordered by an appeal court and that therefore the delay in the first trial cannot be added to the delay in the second. However, it refused to accept the Crown’s argument that the fact that a new trial has been ordered prevents an accused from raising a violation of s. 11(b) based on delay in their first trial. In the Court of Appeal’s view, [translation] “it would undoubtedly be unfair for an accused to be barred from presenting an initial motion on the sole ground that a violation was not raised in a timely manner” (para. 60 (CanLII)). The Court of Appeal also rejected the Crown’s argument that J.F.’s very long silence could be considered to be a waiver of the delay preceding the order for a new trial, given that the late presentation of a motion cannot in itself amount to a clear and unequivocal waiver. In this regard, the Court of Appeal further noted that although this Court explained in R. v. Morin, [1992] 1 S.C.R. 771, that inaction by an accused could lead to an inference that the accused suffered no actual prejudice, this reasoning no longer applies under Jordan because prejudice is no longer a factor in calculating delay.
[18] The Court of Appeal added that there cannot be an unqualified refusal to consider first‑trial delay. The fact that delay was not raised during the first trial does not mean that it is reasonable. While it is preferable for an accused to raise the unreasonableness of delay as soon as possible, an acquittal may be more advantageous than a stay of proceedings. In this regard, however, Levesque J.A. cautioned that his remarks should not be taken to mean that [translation] “the late presentation of motions under s. 11(b) should be encouraged” (para. 76).
[19] The Court of Appeal proposed a two‑step approach for calculating delay in a context where a new trial is ordered. Because the delays in the two trials must be considered separately, the first step is to assess the first‑trial delay under the Jordan framework. Only where that delay is reasonable does it become necessary to proceed to the second step and assess the retrial delay, starting from the order for a new trial. However, the Court of Appeal did not discuss the framework that applies in analyzing retrial delay.
[20] Applying the two‑step approach it had adopted to this case, the Court of Appeal began by noting that the total delay between the charges and the end of the argument at the first trial was 63 months and 8 days,[1] from which it subtracted 1 day attributable to the defence. Finding that this total delay exceeded the 30‑month presumptive ceiling established by this Court in Jordan, the Court of Appeal stated that it was up to the Crown to show that the delay was reasonable because of an exceptional circumstance or transitional considerations. Since the Crown had not pleaded any such circumstance, the Court of Appeal held that it had not rebutted the presumption that the delay was unreasonable. The Court of Appeal therefore dismissed the appeal and upheld the stay of proceedings.
III. Issues
[21] The appeal raises the following questions:
(1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial?
(2) Do the presumptive ceilings established in Jordan apply to retrial delay?
IV. Analysis
A. Section 11(b) of the Charter and the Temporal Scope of the Right to Be Tried Within a Reasonable Time
(1) Protection Conferred by Having the Status of a Person Charged With an Offence
[22] Timely justice is one of the characteristics of a free and democratic society, and the conduct of trials within a reasonable time is of central importance in the administration of Canada’s criminal justice system (Jordan, at paras. 1 and 19). Section 11(b) of the Charter reflects the importance of this principle by guaranteeing any person charged with an offence the right “to be tried within a reasonable time”. The purpose of this provision is to protect both the rights of accused persons and the interests of society as a whole (R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 38). At the individual level, trials within a reasonable time are essential to protect the liberty, security and fair trial interests of any person charged with an offence, who, it should be remembered, is presumed to be innocent (Jordan, at para. 20; see also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30, citing Morin, at pp. 801‑3). At the collective or societal level, timely trials encourage better participation by victims and witnesses, minimize the “worry and frustration [they experience] until they have given their testimony” and allow them to move on with their lives more quickly (Jordan, at para. 24, quoting R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1220; see also Jordan, at para. 23). Timely trials also help to maintain public confidence in the administration of justice (Jordan, at para. 25; Askov, at pp. 1220‑21).
[23] Section 11(b) protects an accused only while they have the status of a person charged with an offence (R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908). The term “person charged with an offence” has been interpreted broadly by this Court and refers to a person who is the subject of criminal proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45, at paras. 11‑13). A person is charged with an offence from the time the charge is laid (R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1602; Potvin, at p. 910) until the final resolution of the matter and the end of the sentencing process (MacDougall, at paras. 10 and 17‑18; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at paras. 26‑27). On appeal, an accused is no longer a person charged with an offence (Potvin, at pp. 911‑12; MacDougall, at para. 17). The accused reverts to this status only if the trial decision is set aside and a new trial is ordered (Potvin, at p. 912).
[24] While s. 11(b) protects an accused throughout the period when they have the status of a person charged with an offence, the framework established in Jordan has a limited temporal scope. The presumptive ceilings apply only to delay in holding the trial.
(2) Temporal Scope of the Jordan Ceilings
[25] Prior to Jordan, s. 11(b) applications were decided under the framework established in Morin. That framework involved a test with four factors that were to be balanced to determine whether trial delay was unreasonable: “. . . (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial” (Jordan, at para. 30; Godin, at para. 18; Morin, at pp. 787‑88).
[26] In an effort to end the culture of complacency that had developed in the criminal justice system, which tolerated excessive delay in bringing accused persons to trial, this Court established a new framework in Jordan for the application of s. 11(b). The Court set two ceilings beyond which delay is presumptively unreasonable: (1) a ceiling of 18 months for simple cases going to trial in the provincial court, and (2) a ceiling of 30 months for cases going to trial in the superior court or in the provincial court after a preliminary inquiry (para. 46). Delay attributable to the defence is subtracted from the total delay (paras. 47 and 60). If the net total delay exceeds the applicable ceiling, it is presumptively unreasonable. The Crown can then attempt to show that the delay is reasonable by raising exceptional circumstances (para. 47). If the net total delay is below the ceiling, the defence can try to establish that the delay is unreasonable by showing that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (para. 48 (emphasis in original)).
[27] The presumptive ceilings set in Jordan do not apply to the entire period when an accused is a person charged with an offence. The framework established in that case is limited in scope, since it provides a solution to a specific problem. Jordan deals with the culture of complacency that allows for excessive delay in bringing an accused to trial (K.G.K., at para. 34, citing Jordan, at paras. 2, 4, 13, 117, 121 and 129). The new framework applies to the delay from the charge to the actual or anticipated end of trial, that is, “when the parties’ involvement in the merits of the trial is complete, and the case is turned over to the trier of fact” (K.G.K., at para. 31; see also para. 33; Jordan, at para. 47; R. v. Rice, 2018 QCCA 198, at para. 41 (CanLII)). Deliberation time is excluded from this framework (K.G.K., at para. 50). Sentencing proceedings are also excluded from the framework. Although the Court recognized in Jordan that s. 11(b) continues to apply between conviction and sentencing, it made no comment on how such delay should be treated (para. 49, fn. 2).
[28] Jordan also does not address the question of when an accused must bring a motion for a stay of proceedings. In this regard, it should be noted that the Court declined to decide how the presumptive ceilings should be applied where, for example, a s. 11(b) application is brought following a conviction (para. 49, fn. 2). Nor does Jordan set out the framework that applies in cases where a new trial is ordered.
[29] To determine whether first‑trial delay may be raised under the Jordan framework after a new trial has been ordered, it is necessary to consider, first, the duty of an accused to act proactively with respect to delay and, second, the timing of an application based on unreasonable delay and the possibility of obtaining a remedy for the delay complained of.
B. After a New Trial Is Ordered, Can an Accused File a Section 11(b) Motion for a Stay of Proceedings Based on Delay in the Accused’s First Trial?
(1) Jordan and the Duty of an Accused to Raise an Infringement of Their Right to Be Tried Within a Reasonable Time in a Timely Manner
[30] While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137‑39; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9).
[31] The new framework marks a shift away from a retrospective approach and adopts a prospective standpoint that allows the various participants to know the bounds of reasonableness from the outset of the proceedings (Jordan, at para. 108; K.G.K., at para. 43). The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84‑86 and 113).
[32] As this Court wrote in Morin, “[t]he purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802). This section was not intended to make it possible for an accused to frustrate the ends of justice (Jordan, at paras. 21, 60 and 63). As the Court also recently noted, an accused may not benefit from the lengthening of delay where it is caused by the accused’s own conduct (R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 6; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11).
[33] Defence conduct is considered under the Jordan framework, since the delay attributable to the defence is subtracted from the gross total delay (para. 60). Defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely or directly by the defence (Jordan, at paras. 61 and 63; Cody, at para. 26). Inaction may amount to illegitimate conduct on the part of the defence, because “[i]llegitimacy may extend to omissions as well as acts” (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively:
Accused persons must bear in mind that a 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). [para. 33]
[34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.
[35] It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as “encourag[ing] pre‑trial s. 11(b) applications” (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows “the parties to know ‘in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay’” (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)).
[36] In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.
(2) A Section 11(b) Application Can Be Brought on Appeal Only Exceptionally
[37] If a s. 11(b) motion is considered late when filed after the end of a trial, only exceptionally will an accused be able to raise this issue for the first time on appeal.
[38] Raising new arguments on appeal is generally discouraged in criminal matters, because the best interests of justice require finality in the adjudication of such matters at trial, as L’Heureux‑Dubé J., dissenting, but not on this point, explained in R. v. Brown, [1993] 2 S.C.R. 918:
Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted. [pp. 923‑24]
[39] A motion for a stay of proceedings brought for the first time on appeal, without the trial judge having had an opportunity to consider its merits, should normally be dismissed (Rabba; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194, at paras. 42‑43; Phillips v. R., 2017 QCCA 1284, at paras. 29‑31 (CanLII)). The trial court is best placed to rule on such a motion, because it is the one that has a complete picture of the proceedings. Indeed, this Court noted in Jordan that trial judges are uniquely positioned to categorize various periods of delay (paras. 71 and 79).
[40] Generally speaking, appeal courts are reluctant to entertain new arguments, because they are deprived of the trial court’s perspective (R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169, at para. 19). This is also the case for constitutional issues (Roach, at para. 6; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307, at para. 45). Only in exceptional circumst

Court headnote

R. v. J.F. Collection Supreme Court Judgments Date 2022-05-06 Neutral citation 2022 SCC 17 Report [2022] 1 SCR 330 Case number 39267 Judges Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud On appeal from Quebec Subjects Constitutional law Notes Case in Brief SCC Case Information Decision Content SUPREME COURT OF CANADA Citation: R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330 Appeal Heard: November 30, 2021 Judgment Rendered: May 6, 2022 Docket: 39267 Between: Her Majesty The Queen Appellant and J.F. Respondent - and - Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners Official English Translation Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 80) Wagner C.J. (Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring) Dissenting Reasons: (paras. 81 to 103) Côté J. Her Majesty The Queen Appellant v. J.F. Respondent and Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers’ Association of Ontario, Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil Interveners Indexed as: R. v. J.F. 2022 SCC 17 File No.: 39267. 2021: November 30; 2022: May 6. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Right to be tried within reasonable time — Order for new trial — Whether, after new trial is ordered, accused can file motion under s. 11(b) of Canadian Charter of Rights and Freedoms for stay of proceedings based on delay in accused’s first trial — Whether presumptive ceilings established in Jordan apply to retrial delay. In February 2011, the accused was charged with seven counts involving sexual offences against his daughter. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, following a preliminary inquiry. Argument was completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, the Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, the accused was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittal and ordered a new trial. Before the retrial began, the accused filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The motion concerned the delays in the first trial and the retrial. In assessing whether the s. 11(b) right had been infringed, the trial judge combined the delays for the first trial and the retrial. She held that the accused’s right to be tried within a reasonable time had been infringed, and she entered a stay of proceedings. The Court of Appeal dismissed the Crown’s appeal, finding that it had not rebutted the presumption that the total delay between the charges and the end of the argument at the first trial was unreasonable. Held (Côté J. dissenting): The appeal should be allowed, the stay of proceedings set aside and the case remanded to another judge of the Court of Québec for the continuation of the trial. Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. The ceilings set in Jordan apply to retrial delay, but when an accused brings a motion for a stay of proceedings for unreasonable delay after an appeal court has ordered a new trial, only the delay in that trial will be counted in calculating delay. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows that an accused must raise the unreasonableness of trial delay in a timely manner. It is generally recognized that an accused who raises the unreasonableness of delay after trial, and particularly after conviction, is not acting in a timely manner. It is therefore only exceptionally that an infringement of the right to be tried within a reasonable time can be raised by an accused for the first time on appeal. However, waiver of delay cannot be inferred solely from an accused’s silence or failure to act. For a court to find that delay has been waived, an accused must take some direct action from which a consent to delay can be properly inferred. A court cannot regard an accused’s long silence or lengthy inaction as amounting to a clear and unequivocal waiver or an acceptance of the delay associated with a past trial. Any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right. Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. Waiver is established on the basis of the accused’s conduct, having regard to the circumstances of each case. Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial. Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources. Bringing a motion in a retrial for a stay of proceedings based on first‑trial delay is contrary to the parties’ duty to take proactive measures and interferes with the proper administration of justice. While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist, this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected. Section 11(b) does not allow an accused to benefit unduly from the lengthening of delay. This means that an accused may not raise first‑trial delay once a new trial is ordered. The computation of delay restarts at zero when such an order is made. However, a court may be able to consider first‑trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances. After a new trial is ordered, the accused regains the status of a person charged with an offence. Delay following such an order is trial delay and therefore falls within Jordan, so the presumptive ceilings established in Jordan apply to the delay in the new trial. It is not appropriate to adopt different presumptive ceilings for retrials. It has not been shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard. The presumptive ceilings established in Jordan provide a uniform general framework for assessing the reasonableness of the delay between the charge and the end of trial, irrespective of the varying degrees of prejudice experienced by different groups and individuals. The creation of a new ceiling would be incompatible with the uniform‑ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried and to be used by courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable. Two factors can be considered in analyzing the reasonableness of retrial delay in order to take account of the specific nature of this context: retrials must be prioritized when scheduling hearings, and retrials are, as a general rule, to be conducted in less time than first trials. These factors must be assessed contextually, as required by Jordan. In this regard, first‑trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first‑trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the fact that this contextual element is considered does not allow an accused to raise first‑trial delay indirectly; it is the retrial delay that remains the focus of the analysis. In this case, the accused did not act in a timely manner. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion. As a result, the delay in his first trial cannot be considered in calculating the total delay. Only the delay since the order for a new trial is counted. The total delay between the order for a new trial and the actual or anticipated end of that trial, 10 months and 5 days, is well below the 30‑month presumptive ceiling. None of the factors associated with this specific context supports a finding that the accused’s right to be tried within a reasonable time was infringed: the anticipated retrial delay is very short and the case was prioritized. The delay is reasonable and there are no grounds for a stay of proceedings. Per Côté J. (dissenting): The appeal should be dismissed and the stay of proceedings upheld. There is agreement with the main principles in the majority’s analysis. The approach adopted reflects the culture shift required by Jordan and provides a pragmatic solution. However, the specific context of the transition from the subjective Morin framework to the prospective Jordan framework created an exceptional circumstance. In this context, even a delay of 10 months and 5 days in a non‑complex case like this one is sufficiently long to justify taking the first‑trial delay into account. Because the issue of reasonableness of delay arises in a context where the accused’s first trial had been completed and judgment had been reserved by the time the Court rendered its decision in Jordan, this is one of the exceptional cases in which a stay of proceedings must be entered even though the accused did not raise the infringement of s. 11(b) until after a retrial was ordered. The accused cannot be faulted for not acting proactively and filing a motion for a stay of proceedings before the end of his first trial or in the Court of Appeal. He had a right to have the trial completed and to obtain an acquittal. Fighting to secure an acquittal is a right, not a strategy. Nor can the accused be faulted for not acting in keeping with a culture shift that had not occurred at the time of the events. Between the charges in February 2011 and the filing of the motion for a stay of proceedings in December 2018, only a period of 39 days from the first trial can be attributed to him, in nearly 8 years of proceedings. In reality, the Crown failed to prioritize the accused’s case and the system failed to try him in a diligent and reasonable manner. The presumption that the delay is reasonable is rebutted. Cases Cited By Wagner C.J. Applied: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; considered: R. v. Morin, [1992] 1 S.C.R. 771; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Rabba (1991), 64 C.C.C. (3d) 445; R. v. Collins, [1995] 2 S.C.R. 1104; referred to: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Rice, 2018 QCCA 198; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14; R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391; R. v. C.D., 2014 ABCA 392, 588 A.R. 82; R. v. Brown, [1993] 2 S.C.R. 918; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194; Phillips v. R., 2017 QCCA 1284; R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; R. v. Hebert, [1990] 2 S.C.R. 151; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Conway, [1989] 1 S.C.R. 1659; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Boisvert, 2014 QCCA 191; R. v. Barros, 2014 ABCA 367, 317 C.C.C. (3d) 67; R. v. Nikkel, 2009 MBCA 8, 240 Man. R. (2d) 1; R. v. Fitts, 2015 ONCJ 746; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721; R. v. JEV, 2019 ABCA 359, 381 C.C.C. (3d) 392; R. v. J.A.L., 2019 ABCA 415; Gakmakge v. R., 2017 QCCS 3279; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415; R. v. Richard, 2017 MBQB 11, 375 C.R.R. (2d) 61. By Côté J. (dissenting) R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Morin, [1992] 1 S.C.R. 771; R. v. Rabba (1991), 64 C.C.C. (3d) 445; M.G. v. R., 2019 QCCA 1170. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 11(b). Authors Cited Gold, Alan D., Michael Lacy and Laura Metcalfe. A Practical Guide to the Charter: Section 11(b). Toronto: LexisNexis, 2019. Vauclair, Martin, et Tristan Desjardins. Traité général de preuve et de procédure pénales, 28e éd. Montréal: Yvon Blais, 2021. APPEAL from a judgment of the Quebec Court of Appeal (Levesque, Hogue and Sansfaçon JJ.A.), 2020 QCCA 666, [2020] AZ‑51688190, [2020] Q.J. No. 3213 (QL), 2020 CarswellQue 8461 (WL), affirming a decision of Roy J.C.Q., 2019 QCCQ 1236, [2019] AZ‑51576046, [2019] J.Q. no 1737 (QL), 2019 CarswellQue 2045 (WL). Appeal allowed, Côté J. dissenting. Nicolas Abran and Justin Tremblay, for the appellant. Diego Gramajo, for the respondent. Tracy Kozlowski and Samuel Greene, for the intervener the Attorney General of Ontario. Liliane Bantourakis and Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia. Matthew W. Griener, for the intervener the Attorney General of Alberta. Christine Mainville and Andrew Burgess, for the intervener the Criminal Lawyers’ Association of Ontario. Jean‑Sébastien St‑Amand Guinois, for the intervener Association québécoise des avocats et avocates de la défense. Walid Hijazi and Julia Blais‑Quintal, for the intervener Association des avocats de la défense de Montréal‑Laval‑Longueuil. English version of the judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. delivered by [1] The Chief Justice — In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, this Court delivered a clear message to all participants in the criminal justice system in Canada: everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms. By creating ceilings beyond which trial delay is presumptively unreasonable, the Court developed a prospective approach that allows the various participants to know, from the outset of the proceedings, the temporal limits within which the trial must take place. [2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay? [3] The first question requires this Court to determine when an accused must indicate that their right to be tried within a reasonable time has not been respected. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. That being said, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework. [4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried. I. Background [5] In February 2011, J.F. was charged by indictment with seven counts involving sexual offences against his daughter. The charges covered a period from 1986 to 2001. [6] The preliminary inquiry was completed on March 28, 2012. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, district of Montréal. [7] On December 4, 2013, the prosecution announced a voir dire on the admissibility into evidence of the complainant’s video statement. The trial was then adjourned, and it resumed on October 20, 2014. On October 24, 2014, the voir dire ended and the trial judge reserved decision on it. Just over six months later, on May 8, 2015, the judge rendered his decision and found that the complainant’s statement was inadmissible. [8] The trial resumed on January 18, 2016 and ended the same day. Argument was postponed and was then completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, this Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, J.F. was acquitted on all seven counts. [9] The Crown appealed the decision and, on June 13, 2018, the Quebec Court of Appeal set aside the acquittal on the ground that the trial judge had analyzed the complainant’s credibility by relying erroneously on stereotypes and prejudices (2018 QCCA 986). It therefore ordered a new trial. [10] On October 15, 2018, the parties agreed on dates for the retrial, which was to last 10 days. The retrial was then scheduled for April 29 to May 31, 2019. [11] On December 28, 2018, J.F. filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. That was the first time he alleged an infringement of his right to be tried within a reasonable time. In January 2019, the trial dates were moved up to March 11 to April 18, 2019. The motion for a stay of proceedings was argued on February 5, 2019. II. Decisions Below A. Court of Québec, 2019 QCCQ 1236 (Judge Roy) [12] After making a global assessment of the delay for the first trial and the retrial, the trial judge held that the respondent’s right to be tried within a reasonable time had been infringed. [13] She rejected the Crown’s argument that the accused’s long silence regarding the delay amounted to a waiver of his right to be tried within a reasonable time, because such a waiver must be clear, unequivocal and informed. Noting that there was uncontested evidence showing that the accused was concerned about the delay, the judge found that he had never waived his right to be tried within a reasonable time. [14] The judge then calculated the delay. She found a gross delay of 72 months and 3 days between the charges and the verdict at the first trial, and she determined that, of that total, 70 months and 25 days were not attributable to the defence. [15] In the Court of Québec, the Crown did not challenge the calculation or categorization of the first‑trial delay. Nor did it argue that there were exceptional circumstances or that the transitional circumstance provided for in Jordan applied. In its opinion, only the retrial delay had to be considered, that is, 10 months and 5 days. The judge rejected that argument. Taking a [translation] “global and contextual” approach to delay, she found that the first‑trial delay could not be disregarded in this case given that it “is clearly unreasonable” (paras. 73 and 75 (CanLII)). Not to consider it would be to deny the accused’s rights and would be contrary to the shift in culture sought by this Court. The judge held that the entire delay, including the first‑trial delay, had to be counted. She granted the motion based on unreasonable delay and entered a stay of proceedings. B. Quebec Court of Appeal, 2020 QCCA 666 (Levesque, Hogue and Sansfaçon JJ.A.) [16] The Crown appealed the trial judge’s decision and argued that, under the Jordan framework, first‑trial delay cannot be included once an appeal court has ordered a new trial. For the reasons given by Levesque J.A., the Quebec Court of Appeal dismissed the appeal and upheld the stay of proceedings, though it adopted a different approach than the trial judge. [17] The Court of Appeal stated that the calculation of delay must restart at zero in cases where a new trial is ordered by an appeal court and that therefore the delay in the first trial cannot be added to the delay in the second. However, it refused to accept the Crown’s argument that the fact that a new trial has been ordered prevents an accused from raising a violation of s. 11(b) based on delay in their first trial. In the Court of Appeal’s view, [translation] “it would undoubtedly be unfair for an accused to be barred from presenting an initial motion on the sole ground that a violation was not raised in a timely manner” (para. 60 (CanLII)). The Court of Appeal also rejected the Crown’s argument that J.F.’s very long silence could be considered to be a waiver of the delay preceding the order for a new trial, given that the late presentation of a motion cannot in itself amount to a clear and unequivocal waiver. In this regard, the Court of Appeal further noted that although this Court explained in R. v. Morin, [1992] 1 S.C.R. 771, that inaction by an accused could lead to an inference that the accused suffered no actual prejudice, this reasoning no longer applies under Jordan because prejudice is no longer a factor in calculating delay. [18] The Court of Appeal added that there cannot be an unqualified refusal to consider first‑trial delay. The fact that delay was not raised during the first trial does not mean that it is reasonable. While it is preferable for an accused to raise the unreasonableness of delay as soon as possible, an acquittal may be more advantageous than a stay of proceedings. In this regard, however, Levesque J.A. cautioned that his remarks should not be taken to mean that [translation] “the late presentation of motions under s. 11(b) should be encouraged” (para. 76). [19] The Court of Appeal proposed a two‑step approach for calculating delay in a context where a new trial is ordered. Because the delays in the two trials must be considered separately, the first step is to assess the first‑trial delay under the Jordan framework. Only where that delay is reasonable does it become necessary to proceed to the second step and assess the retrial delay, starting from the order for a new trial. However, the Court of Appeal did not discuss the framework that applies in analyzing retrial delay. [20] Applying the two‑step approach it had adopted to this case, the Court of Appeal began by noting that the total delay between the charges and the end of the argument at the first trial was 63 months and 8 days,[1] from which it subtracted 1 day attributable to the defence. Finding that this total delay exceeded the 30‑month presumptive ceiling established by this Court in Jordan, the Court of Appeal stated that it was up to the Crown to show that the delay was reasonable because of an exceptional circumstance or transitional considerations. Since the Crown had not pleaded any such circumstance, the Court of Appeal held that it had not rebutted the presumption that the delay was unreasonable. The Court of Appeal therefore dismissed the appeal and upheld the stay of proceedings. III. Issues [21] The appeal raises the following questions: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay? IV. Analysis A. Section 11(b) of the Charter and the Temporal Scope of the Right to Be Tried Within a Reasonable Time (1) Protection Conferred by Having the Status of a Person Charged With an Offence [22] Timely justice is one of the characteristics of a free and democratic society, and the conduct of trials within a reasonable time is of central importance in the administration of Canada’s criminal justice system (Jordan, at paras. 1 and 19). Section 11(b) of the Charter reflects the importance of this principle by guaranteeing any person charged with an offence the right “to be tried within a reasonable time”. The purpose of this provision is to protect both the rights of accused persons and the interests of society as a whole (R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 38). At the individual level, trials within a reasonable time are essential to protect the liberty, security and fair trial interests of any person charged with an offence, who, it should be remembered, is presumed to be innocent (Jordan, at para. 20; see also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30, citing Morin, at pp. 801‑3). At the collective or societal level, timely trials encourage better participation by victims and witnesses, minimize the “worry and frustration [they experience] until they have given their testimony” and allow them to move on with their lives more quickly (Jordan, at para. 24, quoting R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1220; see also Jordan, at para. 23). Timely trials also help to maintain public confidence in the administration of justice (Jordan, at para. 25; Askov, at pp. 1220‑21). [23] Section 11(b) protects an accused only while they have the status of a person charged with an offence (R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908). The term “person charged with an offence” has been interpreted broadly by this Court and refers to a person who is the subject of criminal proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45, at paras. 11‑13). A person is charged with an offence from the time the charge is laid (R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1602; Potvin, at p. 910) until the final resolution of the matter and the end of the sentencing process (MacDougall, at paras. 10 and 17‑18; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at paras. 26‑27). On appeal, an accused is no longer a person charged with an offence (Potvin, at pp. 911‑12; MacDougall, at para. 17). The accused reverts to this status only if the trial decision is set aside and a new trial is ordered (Potvin, at p. 912). [24] While s. 11(b) protects an accused throughout the period when they have the status of a person charged with an offence, the framework established in Jordan has a limited temporal scope. The presumptive ceilings apply only to delay in holding the trial. (2) Temporal Scope of the Jordan Ceilings [25] Prior to Jordan, s. 11(b) applications were decided under the framework established in Morin. That framework involved a test with four factors that were to be balanced to determine whether trial delay was unreasonable: “. . . (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial” (Jordan, at para. 30; Godin, at para. 18; Morin, at pp. 787‑88). [26] In an effort to end the culture of complacency that had developed in the criminal justice system, which tolerated excessive delay in bringing accused persons to trial, this Court established a new framework in Jordan for the application of s. 11(b). The Court set two ceilings beyond which delay is presumptively unreasonable: (1) a ceiling of 18 months for simple cases going to trial in the provincial court, and (2) a ceiling of 30 months for cases going to trial in the superior court or in the provincial court after a preliminary inquiry (para. 46). Delay attributable to the defence is subtracted from the total delay (paras. 47 and 60). If the net total delay exceeds the applicable ceiling, it is presumptively unreasonable. The Crown can then attempt to show that the delay is reasonable by raising exceptional circumstances (para. 47). If the net total delay is below the ceiling, the defence can try to establish that the delay is unreasonable by showing that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (para. 48 (emphasis in original)). [27] The presumptive ceilings set in Jordan do not apply to the entire period when an accused is a person charged with an offence. The framework established in that case is limited in scope, since it provides a solution to a specific problem. Jordan deals with the culture of complacency that allows for excessive delay in bringing an accused to trial (K.G.K., at para. 34, citing Jordan, at paras. 2, 4, 13, 117, 121 and 129). The new framework applies to the delay from the charge to the actual or anticipated end of trial, that is, “when the parties’ involvement in the merits of the trial is complete, and the case is turned over to the trier of fact” (K.G.K., at para. 31; see also para. 33; Jordan, at para. 47; R. v. Rice, 2018 QCCA 198, at para. 41 (CanLII)). Deliberation time is excluded from this framework (K.G.K., at para. 50). Sentencing proceedings are also excluded from the framework. Although the Court recognized in Jordan that s. 11(b) continues to apply between conviction and sentencing, it made no comment on how such delay should be treated (para. 49, fn. 2). [28] Jordan also does not address the question of when an accused must bring a motion for a stay of proceedings. In this regard, it should be noted that the Court declined to decide how the presumptive ceilings should be applied where, for example, a s. 11(b) application is brought following a conviction (para. 49, fn. 2). Nor does Jordan set out the framework that applies in cases where a new trial is ordered. [29] To determine whether first‑trial delay may be raised under the Jordan framework after a new trial has been ordered, it is necessary to consider, first, the duty of an accused to act proactively with respect to delay and, second, the timing of an application based on unreasonable delay and the possibility of obtaining a remedy for the delay complained of. B. After a New Trial Is Ordered, Can an Accused File a Section 11(b) Motion for a Stay of Proceedings Based on Delay in the Accused’s First Trial? (1) Jordan and the Duty of an Accused to Raise an Infringement of Their Right to Be Tried Within a Reasonable Time in a Timely Manner [30] While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137‑39; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9). [31] The new framework marks a shift away from a retrospective approach and adopts a prospective standpoint that allows the various participants to know the bounds of reasonableness from the outset of the proceedings (Jordan, at para. 108; K.G.K., at para. 43). The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84‑86 and 113). [32] As this Court wrote in Morin, “[t]he purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802). This section was not intended to make it possible for an accused to frustrate the ends of justice (Jordan, at paras. 21, 60 and 63). As the Court also recently noted, an accused may not benefit from the lengthening of delay where it is caused by the accused’s own conduct (R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 6; R. v. Ste‑Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11). [33] Defence conduct is considered under the Jordan framework, since the delay attributable to the defence is subtracted from the gross total delay (para. 60). Defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely or directly by the defence (Jordan, at paras. 61 and 63; Cody, at para. 26). Inaction may amount to illegitimate conduct on the part of the defence, because “[i]llegitimacy may extend to omissions as well as acts” (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively: Accused persons must bear in mind that a 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). [para. 33] [34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings. [35] It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as “encourag[ing] pre‑trial s. 11(b) applications” (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows “the parties to know ‘in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay’” (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)). [36] In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively. (2) A Section 11(b) Application Can Be Brought on Appeal Only Exceptionally [37] If a s. 11(b) motion is considered late when filed after the end of a trial, only exceptionally will an accused be able to raise this issue for the first time on appeal. [38] Raising new arguments on appeal is generally discouraged in criminal matters, because the best interests of justice require finality in the adjudication of such matters at trial, as L’Heureux‑Dubé J., dissenting, but not on this point, explained in R. v. Brown, [1993] 2 S.C.R. 918: Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases. Moreover, society’s expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to the rule that such tactics will not be permitted. [pp. 923‑24] [39] A motion for a stay of proceedings brought for the first time on appeal, without the trial judge having had an opportunity to consider its merits, should normally be dismissed (Rabba; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194, at paras. 42‑43; Phillips v. R., 2017 QCCA 1284, at paras. 29‑31 (CanLII)). The trial court is best placed to rule on such a motion, because it is the one that has a complete picture of the proceedings. Indeed, this Court noted in Jordan that trial judges are uniquely positioned to categorize various periods of delay (paras. 71 and 79). [40] Generally speaking, appeal courts are reluctant to entertain new arguments, because they are deprived of the trial court’s perspective (R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169, at para. 19). This is also the case for constitutional issues (Roach, at para. 6; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307, at para. 45). Only in exceptional circumst

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