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3
Calculating the Total Delay Period
A. APPLICABLE CEILINGS
1) Presumptive Ceilings
The Jordan framework was created to focus the section 11b analysis
and to encourage all participants in the criminal justice system to be
proactive and cooperate in achieving reasonably prompt justice, with
a view to fullling section 11b’s important objectives. The “heart” of
the Jordan framework are the presumptive ceilings, beyond which delay,
from the charge to the actual or anticipated end of trial, is presumed to
be unreasonable unless exceptional circumstances justify it. The pre-
sumptive ceilings mark the point at which the burden shis from the
defence to prove that the delay was unreasonable, to the Crown to jus-
tify the length of time the case has taken. By creating the presumptive
ceilings that mark where the burden of proof shis to the Crown, the
Court developed a prospective approach that allows the various partici-
pants to know, from the outset of the proceedings, the temporal limits
within which the trial must take place.
The Court prescribed that delay is presumptively unreasonable for
a case tried in a single-stage proceeding in the provincial or territor-
ial court if the trial exceeds eighteen months. This ceiling also applies
2 Ibid at para 58.
Chapter 3: Calculating the Total Delay Period 19
to provincial oences prosecutions and has been adopted for use in
court martials. The Court further prescribed that delay is presumptively
unreasonable for a case tried in provincial court following a preliminary
hearing or in superior court if the trial exceeds thirty months. The Court
declined to apply the framework to sentencing although they acknow-
ledged that section 11b protection applies to sentencing proceedings.
Delay attributable to or waived by the defence does not count
toward the presumptive ceiling. If the total delay from the charge to
the actual or anticipated end of trial (minus defence delay or a per-
iod of delay attributable to exceptional circumstances) fallsbelowthe
presumptive ceiling, then the onus is on the defence to show that the
delay is unreasonable. To do so, the defence must establish that (1)it
took meaningful steps that demonstrate a sustained eort to expedite
the proceedings, and (2)the case took markedly longer than it reason-
ably should have. The Court noted the expectation that stays beneath
the ceiling will be rare and limited to clear cases. If the total delay
from the charge to the actual or anticipated end of trial (minus defence
delay)exceedsthe ceiling, then the delay is presumptively unreasonable
and the burden shis to the Crown. To rebut this presumption, the
Crown must establish the presence of exceptional circumstances. If the
Crown cannot do so, the delay is unreasonable, and a stay will follow.
Exceptional circumstances lie outside the Crown’s control in that (1)
they are reasonably unforeseen or reasonably unavoidable, and (2) they
cannot reasonably be remedied.
2) Purpose of the Presumptive Ceilings
In creating the ceilings beyond which trial delay is presumptively
unreasonable, the Court developed a prospective approach that allows
the various participants to know, from the outset of the proceedings,
4 Tristan Construction v Technical Standards and Safety Authority (TSSA), 2022 ONCJ 129 at
[KJM (SCC)]; R v Sangha, 2022 BCSC 874 at para 57.
5 R v Zapata-Valles AA (Corporal), 2022 CM 3011 at para 76.
6 Jordan, above note 1 at paras 5, 46, and 49; KJM (SCC), above note 4 at para 44.
7 Jordan, above note 1 at fn 2; R v MacDougall,1998 CanLII 763 (SCC) [MacDougall].
8 Jordan, above note 1 at para 48.
9 Ibid.
20 A Proactive Practitioner’s Guide to Section 11(b) of the Charter
the temporal limits within which the trial must take place. In Jordan,
the Court explained that the presumptive ceilings were imposed in
order to:
1) give meaningful direction to the state on its constitutional obliga-
tions and to those who play an important role in ensuring that the
trial concludes within a reasonable time: court administration, the
police, Crown prosecutors, accused persons and their counsel, and
judges;
2) provide some assurance to accused persons, to victims and their
families, to witnesses, and to the public that section 11b is not a
hollow promise;
3) enhance analytical simplicity and foster constructive incentives;
and
4) consider compelling case-specic factors that remain relevant to
assessing the reasonableness of a period of delay both above and
below the ceiling.
The rationale for the ceilings and the framework are a touchstone
for any unresolved questions. Subsequent interpretive jurisprudence
consistently underscores how predictability, simplicity, and proactivity
of the bright-line approach created by the presumptive ceilings and
how that is supplemented with a exible, case-specic approach to
delay below the ceiling, informs every answer about how the frame-
work is to be applied. As the Court held in R v KJM, “Jordan marries
uniformity with exibility.”
The Court made plain that the applicable presumptive ceiling
is not an “aspirational target.” Rather, it is the point at which delay
becomes presumptively unreasonable. The Court explained that the
public should expect that most cases can and should be resolved before
reaching the ceiling. For this reason, the Crown bears the onus of jus-
tifying delays that exceed the ceiling. It is also for this reason that an
10 JF (SCC), above note 3 at para 1.
11 Jordan, above note 1 at para 50.
12 Ibid.
13 Ibid at para 51.
14 Ibid.
15 KJM (SCC), above note 4 at para 69.
16 Jordan, above note 1 at para 56.
