Defending Criminal Charges: “Jordan” Deadlines and Your Charter Rights

by Mike C. Gilchrist

Imagine this scenario: You are charged with a crime. You prepare your defence, you stress about the outcome, and your life is put on hold. Then, months turn into years. You are still waiting for your day in court. The anxiety is constant. Your reputation remains tarnished. The witnesses’ memories fade.

“Justice delayed is justice denied.” This isn’t just a cliché; it is a fundamental legal principle. In Canada, you have a constitutional right to be tried within a reasonable time. When the system fails to meet this obligation, the consequences for the prosecution can be severe.

As a Calgary criminal lawyer team, we frequently analyze case timelines to ensure our clients’ rights are protected. Understanding the “Jordan” deadline is crucial for anyone navigating the Alberta justice system. This guide explains Section 11(b) of the Charter, the landmark R. v. Jordan decision, and what happens when the clock runs out on the Crown.

Understanding Section 11(b) of the Canadian Charter of Rights and Freedoms

The foundation of your right to a timely trial lies in the Canadian Charter of Rights and Freedoms. Specifically, Section 11(b) states that any person charged with an offence has the right “to be tried within a reasonable time.”

Why Does This Right Exist?

This right serves three primary purposes:

1. Security of the Person: It minimizes the stress, anxiety, and stigma of facing criminal charges.
2. Liberty: It ensures that restrictions on your freedom (like bail conditions or pre-trial custody) are not prolonged indefinitely.
3. Fair Trials: It protects your ability to make full answer and defence. Over time, evidence can degrade, and witnesses may become unavailable or forgetful.

However, Section 11(b) also serves a broader societal interest. The public has an interest in seeing laws enforced efficiently and seeing those accused of crimes treated fairly. A justice system clogged with delayed criminal trials loses the public’s confidence.

If the state takes too long to bring you to trial, they violate this constitutional right. The remedy is not a reduced sentence or a fine; it is a “judicial stay of proceedings.” This effectively means the deadline for criminal trial completion has passed and the prosecution stops. The case law states this is not because the accused is entitled to an acquittal, but because the Crown “is disentitled to a conviction”.

The Effect of R. v. Jordan, 2016 SCC 27

Prior to 2016, determining “unreasonable delay” was a confusing, subjective process. That changed with the Supreme Court of Canada’s decision in R. v. Jordan. This ruling fundamentally altered the landscape of Canadian criminal law.

The Supreme Court expressed frustration with a “culture of complacency” in the justice system. They established a new, presumptive framework to determine if a delay is unreasonable. This framework introduced strict numerical ceilings—essentially a ticking clock that starts the moment you are charged.

The Presumptive Ceilings

The Jordan decision set two distinct deadlines based on which level of court hears the case:

• 18 Months: This is the ceiling for cases tried in the Alberta Court of Justice. Most criminal matters in Calgary start and end here.
• 30 Months: This is the ceiling for cases tried in the Superior Court (in Alberta, the Court of King’s Bench). This applies automatically to more serious indictable offences such as murder and following an election for this forum by the accused in other cases.

If the “net delay” exceeds these ceilings, the delay is presumed to be unreasonable. The burden then shifts to the Crown (the prosecution) to prove why the case should not be thrown out.

Calculating Net Delay

This is where an experienced Calgary criminal lawyer becomes essential. You cannot simply look at a calendar to determine if your rights were violated. The court calculates “net delay” by taking the total time from the charge to the anticipated end of the trial and subtracting specific periods.

The clock does not always tick against the Crown. If the delay is caused by the defence, it is deducted from the total. For example, if you fire your lawyer and need two months to find a new one, those two months do not count toward the Jordan ceiling.

Learn more about our approach to Charter Applications

Breaking Down the Calculation: Defence Delay vs. Institutional Delay

Understanding the distinction between different types of delay is critical. In a Jordan application, every day counts, and the characterization of those days is often the subject of intense legal argument.

Defence Delay

Defence delay is time deducted from the total count. This includes:

• Waiver: When the defence explicitly agrees to waive a specific time period.
• Conduct: When the defence causes an adjournment (e.g., requesting a postponement because the accused is unavailable).

It is vital that your legal team manages the schedule effectively. We act strategically to ensure we do not inadvertently waive your Section 11(b) rights.

Exceptional Circumstances

Sometimes, a case goes over the 18 or 30-month ceiling, but the Crown argues the delay was justified due to “exceptional circumstances.” These generally fall into two categories:

1. Discrete Events: Unforeseeable events that are unavoidable. Examples include a sudden illness of the judge or a key witness, or a global pandemic (like COVID-19 court closures).
2. Case Complexity: The case is so complex that it naturally requires more time than the standard ceiling allows. This might apply to a massive fraud case with thousands of documents and dozens of witnesses.

If the Crown successfully argues exceptional circumstances, the court can subtract that time from the total delay. If the remaining number is under the ceiling, the application for a stay of proceedings will fail in most instances.

Frequently Asked Questions about Section 11(b)

Clients typically have many questions when they hear their case might be thrown out due to delay. Here are some of the most common inquiries we receive at Hoare Claxton.

Does Jordan apply to serious charges like murder?

Yes. Section 11(b) applies to all criminal offences. However, some serious charges like murder are heard in the Court of King’s Bench, so the 30-month ceiling applies. Furthermore, courts are often more willing to accept “complexity” arguments from the Crown in extremely serious, multi-week trials.

What if the delay is just under the ceiling?

If the delay is below the ceiling (e.g., 17 months in Provincial Court), the presumption is that the delay is reasonable. However, the defence can still argue that the delay was unreasonable. To succeed, we must show that the defence took meaningful steps to expedite the case and that the case took markedly longer than it should have. This is a harder argument to win, but it is possible.

Does a plea deal count as the end of the trial?

The “end of the trial” for Jordan purposes is the actual or anticipated conclusion of the evidence and argument. If you decide to plead guilty, the Section 11(b) argument generally becomes moot because you are accepting responsibility. However, the anticipated trial date is the marker used for the calculation before a plea is entered.

Can I appeal if my Jordan application is denied?

Yes. If a trial judge denies a Jordan application and you are subsequently convicted, that decision can be a primary ground for appeal. Appellate courts will review a trial judge’s math and characterization of delay.

How Hoare Claxton Can Help with Your Case

Navigating a delayed criminal trial requires more than just patience; it requires proactive legal strategy. At Hoare Claxton, we track the clock from the moment we take your file.

Strategic File Management

We ensure that the record clearly reflects when the Crown or the court system causes a delay. We push for the earliest available court dates to protect your rights. If the system cannot accommodate your trial within a reasonable time, we build the record necessary to file a Charter application.

The Complexity of Calculation

Calculating delay is rarely straightforward. Disputes often arise over who was responsible for a specific adjournment three months ago. Was it the Crown’s late disclosure? Was it the lack of a courtroom? Or was it a defence scheduling conflict?

We meticulously document every court appearance. When we file a Jordan application, we present a detailed timeline supported by transcripts and endorsements to prove the delay lies at the feet of the state (i.e. is institutional delay).

Results-Driven Advocacy

A successful Section 11(b) application results in a full stay of proceedings. This is the equivalent of an acquittal. It is a powerful tool in our arsenal. Whether you are seeking a defence lawyer in Calgary for drug offences, sexual offences, domestic assault, or anything in between, we evaluate the timeline of every case for Jordan issues.

While our firm is based in Calgary, we assist clients across Alberta. The “culture of complacency” the Supreme Court warned against still exists in some jurisdictions. We hold the system accountable.

Conclusion

The “Jordan” deadline is a critical check on state power. It ensures that if the government charges you with a crime, they must be prepared to try you efficiently. You should not have to put your life on hold indefinitely while the system catches up.

If you believe your case has been dragging on too long, or if you are just entering the system and want to ensure your timeline is managed correctly, you need experienced counsel.

For further information on other rights under the Charter, refer to our discussion of privacy rights under Section 8.

If you’re facing criminal charges in Calgary or throughout Alberta and are concerned about trial delays, contact Hoare Claxton for a free consultation at (587) 355-8889 or via our contact form.

Disclaimer: This post is for informational purposes only and does not constitute legal advice. Consult a qualified lawyer for your specific situation.