R v Jordan

Jordan replaced the Morin framework for unreasonable trial delay under s.11(b). The SCC drew bright presumptive ceilings — 18 months from charge to actual or anticipated end of trial in provincial court, 30 months in superior court (or in provincial court after preliminary inquiry). Net delay above the ceiling is presumptively unreasonable; below is presumptively reasonable.

Jordan was charged in late 2008 with multiple drug offences. Trial concluded in early 2013 — 49.5 months after charge. He sought a stay under s.11(b).

How should s.11(b) (right to trial within a reasonable time) be analysed?

Stay granted (5-4). The Morin framework was replaced.

Section 11(b) is governed by presumptive ceilings: 18 months from charge to end of trial in provincial court, 30 months in superior court. Subtracting defence delay gives the net delay. Above the ceiling: stay unless the Crown shows exceptional circumstances. Below the ceiling: defence must show the case took markedly longer than reasonable and that it took meaningful steps to expedite.

The majority was concerned about a culture of complacency in the criminal justice system. The Morin balancing test had become unworkable and unpredictable. Bright lines — though imperfect — promote constitutional compliance and force systemic change. Exceptional circumstances must be reasonably unforeseeable or unavoidable, and either discrete events or particularly complex cases.

Reshaped Canadian criminal procedure overnight. Thousands of cases had to be triaged or stayed. Drove provincial reforms to court resourcing, scheduling, and disclosure. Subsequent decisions (Cody, Williamson, KGK) refine the framework.

R v Jordan, 2016 SCC 27, [2016] 1 SCR 631.

McLachlin CJ, Abella J, Cromwell J, Moldaver J, Karakatsanis J, Wagner J, Gascon J, Côté J, Brown J