Under Section 11(b) of the Canadian Charter of Rights and Freedoms, you have the right to be tried within a reasonable time. If the Crown Prosecutor or systemic court backlogs delay your trial beyond 18 months (provincial court) or 30 months (superior court), your lawyer can file a “Jordan Application.” If successful, the judge will issue an absolute stay of proceedings, ending your criminal case forever.
The phrase “justice delayed is justice denied” is a foundational principle of the Canadian legal system. Waiting for a criminal trial is an agonizing experience. It puts your career on hold, drains your finances, and subjects you to restrictive bail conditions. To prevent the government from dragging out cases indefinitely, the Supreme Court of Canada established strict time limits in the landmark R. v. Jordan ruling.
Whether you are facing a minor summary conviction in Winnipeg, or a major indictable offence at the Cour supérieure in Montreal, the Crown must respect your Section 11(b) Charter rights. When prosecutors act in bad faith or the system simply fails to provide timely trial dates, you have a powerful legal remedy. This guide explains how to leverage unreasonable delay to secure an absolute stay of proceedings. 📍
Step-by-Step Process in Canada
Achieving a stay of proceedings due to delay is not automatic. It requires precise mathematical calculations and a complex legal motion filed by an experienced defence lawyer.
Step 1: Calculate the Total Delay (The Jordan Ceilings)
The clock starts ticking the moment you are officially charged by the police, not on the day of the alleged offence. The Supreme Court established two hard ceilings for total delay. 📅
If your trial is held in a provincial court without a preliminary inquiry, the ceiling is 18 months. If your case involves a serious indictable offence tried in a Superior Court (or the Court of King’s Bench in provinces like Alberta and Saskatchewan) or involves a preliminary inquiry, the ceiling is 30 months. Your lawyer will calculate the exact number of days from the charge to the anticipated end of the trial.
Step 2: Deduct Defence Delays
Not all delay is the Crown’s fault. To find the “net delay,” the court will subtract any delays caused directly by the defence. Under Canadian law, the defence has a strict, proactive duty to actively seek the earliest possible trial dates, and passivity during scheduling can be counted as defence delay. If you changed your law firm halfway through the case, or if your lawyer requested a trial adjournment to go on vacation, those months are deducted from the total. 👤
However, if the delay is caused by institutional backlog-meaning the court simply has no judges or courtrooms available-that time is counted against the Crown. It is the government’s constitutional duty to fund a functioning justice system.
Step 3: Filing the Section 11(b) Charter Application
If the net delay exceeds the 18 or 30-month ceiling, your lawyer will draft a formal Notice of Application asserting a breach of your Section 11(b) Charter rights. This is often referred to as a “Jordan Application.” 📄
This application must be filed and argued before the trial concludes. The legal brief will outline the timeline, prove that the defence did not cause the hold-ups, and argue that the delay is inherently unreasonable.
Step 4: Crown’s Rebuttal and Exceptional Circumstances
The Crown Prosecutor will fight back. To save their case, the Crown must prove there were “exceptional circumstances” that justified the delay. Under Supreme Court of Canada precedent, exceptional circumstances include discrete events and particularly complex cases. For joint trials, scheduling delays caused by the unavailability of a co-accused’s counsel can qualify as a discrete exceptional circumstance and be deducted from the net delay. 🔍
Other exceptional circumstances include extreme case complexity (e.g., a massive drug trafficking ring) or sudden medical emergencies. If the Crown failed to actively manage the case, ignored emails, or acted in bad faith by purposely withholding disclosure, the judge will reject their excuses. If the judge sides with the defence, they will grant an absolute stay of proceedings.
How Much Does it Cost in Canada?
Fighting a Charter breach is highly technical litigation. It requires a lawyer to dedicate dozens of hours to reviewing court transcripts and drafting legal arguments. 💵
- Charter Application Legal Fees: Preparing and arguing a Jordan application typically costs between $5,000 and $15,000 CAD, depending on the complexity of the trial record.
- Transcript Fees: You must order official transcripts of all previous court appearances to prove who caused the delays. This usually costs $500 to $1,500 CAD.
- Cost Savings: If the stay is granted, the trial immediately ends. You will save tens of thousands of dollars in trial preparation and representation fees.
How Long Does the Process Take?
By definition, a Jordan application only occurs after you have been waiting a very long time-usually approaching or exceeding the 1.5 to 2.5-year mark. ⏱️
Once your lawyer identifies the breach, they must give the Crown advance notice (usually 15 to 30 days) before arguing the motion in court. The motion itself is typically heard over one or two days, and the judge may take a few weeks to issue a written decision. If the stay is granted, you are free to go immediately.
Frequently Asked Questions (FAQ)
What exactly is a stay of proceedings?
A stay of proceedings is a permanent halt to the legal action. Unlike a withdrawal, which the Crown decides, a stay is ordered by the judge. It effectively means the court refuses to hear the case because your constitutional rights were violated. You walk away with no criminal record.
Can the Crown appeal a stay of proceedings?
Yes. The Crown Prosecutor can appeal a judge’s decision to grant a stay. However, appeal courts generally defer to the trial judge’s mathematical assessment of the delay, making these appeals difficult for the Crown to win.
Does a global pandemic count as an exceptional circumstance?
Yes. Canadian courts have consistently ruled that the lockdowns and court closures caused by COVID-19 are exceptional circumstances. Delays directly caused by pandemic disruptions are subtracted from the Jordan ceiling calculations.
What if the delay is below the ceiling, but still really long?
It is possible to win a Section 11(b) application even if the delay is below the 18 or 30-month ceiling. However, the defence must prove that they took meaningful steps to speed up the process and that the case took significantly longer than a typical case of its nature.
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