The Supreme Court of Canada held that the presumptive ceilings set out in R. v. Jordan, 2016, SCC 27, apply to retrial delay. However, when an accused brings an application for a stay of proceedings for unreasonable delay, the accused can no longer raise the delay from the first trial. Only the retrial delay will be included in the calculation. – R. v. J.F., 2022 SCC 17
Ceilings set in Jordan apply to retrial delay
In R. v. J.F., 2022 SCC 17, the accused was charged with several counts of sexual offences in February 2011. The trial, which was scheduled for two days, began in December 2013. The trial was adjourned until October 2014 to schedule a voir dire on the admissibility of the complainant’s video statement. The trial judge reserved decision on the voir dire for six months and the trial resumed in January 2016. The argument was postponed until May 2016, and then judgment was reserved. In February 2017, the accused was acquitted on all counts. The Crown appealed the decision and the Quebec Court of Appeal set aside the acquittal and ordered a new trial, which was scheduled for April 2019.
Lower Court Decisions
The trial judge made a global assessment of the delay in the first trial and the retrial and found that the right of the accused to be tried within a reasonable time had been infringed.
The Crown appealed the decision and argued that when a trial has been ordered, the delay in the first trial should not be included in the calculations under the Jordan framework. The Court of Appeal proposed a two-step mechanism for calculating delay when a new trial has been ordered, which involved: 1) assessing the delay in the first trial using the Jordan framework; and (2) only where the delay in the first trial is found to be reasonable, assessing the retrial delay starting at the order for the new trial.
The Court of Appeal found the delay in the first trial unreasonable, dismissed the appeal and upheld the stay of proceedings.
Duty of the Accused to bring an application in a timely manner
The Supreme Court of Canada found that the Jordan framework adopts a “prospective approach” by allowing an accused to know what is reasonable in terms of delay from the outset of the proceedings. As such, everyone involved is required to take proactive measures to remedy any delay. This includes a duty on the accused to bring an application for a stay of proceedings based on unreasonable delay in a timely manner.
Taking into account this duty, the Court determined that when a retrial is ordered, the calculation of delay is reset to zero. Only the delay occurring after the new trial is ordered can be considered in an application brought after that date.
No change to presumptive ceilings for retrial delay
The Court rejected submissions respecting the adoption of lower ceilings for retrial delay, finding that multiple ceilings applying to different categories of persons would undermine the objective of simplifying and streamlining the framework as set out by the Court in Jordan.
Where the retrial delay is below the presumptive ceiling, the Court proposed two factors to be considered in determining the reasonableness of the delay: 1) the need to prioritize retrials when scheduling hearings; and 2) retrials are generally to be conducted in less time than first trials.
Delay from the first trial may be taken into consideration in a contextual analysis of retrial delay. Therefore, if the delay from the first trial was above the presumptive ceiling, a failure to meet either of the above factors may weigh in favour of a finding that the retrial delay was unreasonable. However, the focus must remain on the delay in the retrial.
Applying the above factors in this case, the Court determined that the anticipated retrial delay was short and the case was prioritized, therefore there were no grounds for a stay of proceedings. The appeal was allowed and the stay of proceedings set aside.