The criminal justice system in Canada has long recognized the accused’s right to be tried within a reasonable time. In fact we’ve put it right there in black in white in the Canadian Charter of Rights and Freedoms (section 11(b)).
However, if your child is charged with a criminal offence you will likely be surprised to learn exactly what the courts think is a “reasonable amount of time.” The reality is that in Ottawa, if your child decides to fight the charges and go to trial, it’s very likely going to take at least a year from the day they’re charged to the start of their trial. Frankly, it may well take a lot longer than that before the matter is completely resolved.
Courts across the country have spent a great deal of time considering the question “how long is too long?” But as it stands, the answer to that question can be summed up like this: if you go to trial in the Ontario Court of Justice (which is where the vast majority of youth cases are tried) and the trial takes longer than 18 months, you may well have a strong argument that the charges should be thrown out because the matter has taken too long.
The Supreme Court of Canada issued a decision on this issue called Jordan; wherein they lay out the framework through which delay arguments should be assessed and in doing so, decided on an 18 month ceiling. This means that anything that takes longer than 18 months in the Ontario Court of Justice is presumed unreasonable and the prosecutor (Crown) then bears the responsibility of proving to the court that there were exceptional circumstances at play that justified delay of that length.
If, on the other hand, the case takes less than 18 months to get to trial, it is not assumed to have been too long. Of course, that doesn’t preclude an accused person from bringing a delay argument but it does make it significantly harder to win. In cases below the 18 month ceiling the Defence needs to establish that: a) they were proactive in trying to move the matter along and b) that the trial could have been dealt with markedly faster than it was.
This framework for the analysis of delay is often referred to simply by the name of the case-Jordan. So if you hear your lawyer or others talking about a Jordan argument this is what they are referring to; a possible argument that the charges should be stayed (thrown out) because it has taken an unreasonable amount of time to get to trial.
In my next post in this series (Youth Cases and the Right to a Speedy Trial) I will outline how the test in Jordan applies specifically to youth cases. In the meantime, and as always, if you have questions about how any aspect of the criminal law applies to your child, feel free to email me at [email protected].