The Supreme Court of Canada’s recent decision in R v Jordan attempts to strike a new, simpler test for determining when someone’s right to a trial within a reasonable time has been violated. It will now be considered presumptively unreasonable if a person has to wait more than 18 months for their trial to occur in provincial court, or 30 months for a trial in superior court. Any unreasonable delay caused or waived by the defence is to be deducted from this calculation. Prosecutorial or institutional (i.e. court) delay exceeding these limits shall now result in a stay of proceedings unless there are “exceptional circumstances” justifying same. Such circumstances can relate to the complexity of the prosecution (eg. massive amounts of disclosure material), or discrete events (eg. illness of an essential witness). The burden of establishing exceptional circumstances rests with the prosecution when the delay exceeds these limits. When the delay attributable to the prosecution falls below these limits a stay may still be appropriate, however the burden of establishing why that might be so rests with the defence. In Jordan, the Court found that a total delay of 44 months (excluding defence delay) for a straight forward dial-a-dope trafficking prosecution was unreasonable, and vacated the previously entered convictions and imposed a judicial stay.
Weighing in at 130 pages, it is difficult to necessarily agree that the Supreme Court has simplified much. Nonetheless, in an era of government cut-backs to legal aid, prosecution, court and police services, significant delay in getting cases to trial are increasingly common, and this decision at least attempts to more clearly draw when justice delayed is justice denied.