Proceedings in the criminal justice system can appear to move slowly. In 2016, the Supreme Court of Canada issued the decision of R v. Jordan, which established what is known as the “Jordan Ceiling.” The Jordan Ceiling sets a presumptive limit of 18 months as the length of time it should take for someone to be tried for a criminal matter. However, some exceptions exist to the Jordan Ceiling, for instance, a transitional exceptional circumstance. 

Courts have acknowledged that some cases may have been working their way through the judicial system at the time Jordan was released; therefore, it may not be appropriate to impose a timeline on those matters. This blog will review a recent decision from the Supreme Court of Canada which explains how the courts will determine whether a transitional exceptional circumstance should be applied. 

Accused charged in 2015; the trial took place in October 2019

In the case of R v. Hanan, the accused (“the appellant”) was charged with various offences in December 2015. A trial by jury was originally scheduled for November 2018, which would have been within the Jordan ceiling. However, during this time, changes to the Crown’s case threatened to adjourn the proceedings. The defence offered to proceed by trial by judge alone to conclude matters within the Jordan ceiling, but the Crown refused. A trial date was set for June 2019. However, defence counsel was unavailable, and the trial was delayed until October 28, 2019. 

The appellant applied for a stay of proceedings on the basis that there was a violation of his right to be tried within a reasonable time, contrary to section 11 of the Canadian Charter of Rights and Freedoms (the “Charter”). The trial judge denied the request despite the waiting time for trial exceeding the Jordan ceiling by approximately 35 months. The trial judge explained that the parties had reasonably relied upon the law as it had existed prior to the Jordan case being decided. Ultimately, the appellant was found guilty of several offences. 

Accused appeals decision based on Charter violation

The accused appealed the decision to Ontario’s Court of Appeal on the basis that his Section 11 Charter rights were violated and due to an error in the charge to the jury that would require a new trial. 

The Court of Appeal noted that the events that gave rise to the charges occurred on December 23, 2015, and the appellant was charged the following day. The accused was found guilty of manslaughter, discharging a firearm with the intent to wound, and possession of a loaded restricted firearm without a license. 

The Court of Appeal found that the schedule originally agreed to by the parties would have seen the trial being held within the timeframe of the Jordan ceiling, but it was on the eve of the trial that the Crown’s case threatened to upend the matter. The Crown did not dispute the fact that had it agreed to proceed with the trial by judge alone; the trial would have concluded within the Jordan ceiling. 

Court of Appeal Affirms Accused’s Convictions 

When the appellant first applied for a stay of proceedings, the trial judge calculated the total delay as 47.5 months. However, the Court deducted 10 months for delay caused by the defence before trial dates were committed to, as well as another 1.5 months as a “discrete exceptional circumstance relating to issues with the Crown’s evidence.” The trial judge ultimately found that the total delay was approximately 35 months. 

Despite the delay equating to almost double the permitted delay permitted under the  Jordan ceiling, the trial judge applied the transitional exceptional circumstance rule to find that the parties had reasonably relied upon the law as it existed prior to Jordan being decided. Therefore, although the Jordan decision had already been issued, the Court found that the parties did not yet have a “full understanding of the lessons of Jordan.” 

The Court of Appeal affirmed the convictions and did not address the second ground of the appeal.

Supreme Court of Canada Orders Stay of Proceedings

The matter was appealed to the Supreme Court of Canada. The Supreme Court found that both the trial judge and the Court of Appeal erred in their application of the transitional exceptional circumstances. The Court found that the parties could not have reasonably relied upon the pre-Jordan state of law after R v. Jordan had already been decided. The Supreme Court noted that once Jordan was decided, subsequent delays should be evaluated “on the extent to which the parties and the courts had sufficient time to adapt.” In this case, the Supreme Court found that only a very small portion of the delay was due to the defence. 

The Supreme Court also held that the Crown had “ample time” to adapt to Jordan in the months leading up to the trial. Therefore, the delay beyond the Jordan ceiling was not due to a lack of time for the judicial system to adapt to the Jordan decision, but instead, was due to the Crown’s refusal to agree to a trial by judge, even though they were informed of the risks associated with a delay. 

The Supreme Court held that no transitional exceptional circumstances applied to the case at hand. The Supreme Court allowed the appeal and set aside the convictions, ordering a stay of proceedings. 

Contact the Criminal Lawyers at Hicks Adams in Toronto for Advice on Manslaughter Charges and Appealing Convictions 

The experienced criminal defence lawyers at Hicks Adams are equipped to defend clients against serious allegations, including manslaughter, weapons charges, and Charter violations. Our lawyers also represent clients in criminal appeals and frequently appear before the Court of Appeal for Ontario and the Supreme Court of Canada. We serve clients in Toronto and throughout Ontario, and we have a proven record of success in even the most challenging cases. To schedule a confidential consultation with a member of our team, contact us online or by phone at 416-975-1700 (toll-free at 1-877-975-1700).