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Charter - Section 11(b) - Trial Delay - Residual Court Remedial Discretion
COMMENT
This sub-topic is about a potential Charter 11(b) doctrinal change, and as such is mostly of academic interest.
CASES
. R. v. Vrbanic
In R. v. Vrbanic (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Ont CA dismissal, this respecting an earlier OCJ holding that "the respondents’ s. 11(b) Charter rights had been violated and entered a stay of proceedings on their charges".
Here the court considers (but rejects for now) the Crown-proposed residual court remedial discretion to vary the s.11(b) remedy from the minimal stay of proceedings (Rahey):D. The Crown’s Proposed Residual Discretion
[71] Before I apply the clarified test for case complexity to the facts of this case, it is necessary to address the question of “residual discretion” raised by the Crown. The Crown submits that it is “arguably not in the best interests of the administration of justice” to order a stay of proceedings every time net delay exceeds the Jordan ceiling and cannot be justified by exceptional circumstances (A.F., at para. 70). The Crown submits that, just as there is discretion for a judge to consider whether to stay a proceeding where delay does not exceed the Jordan ceiling, there should be a residual discretion for a judge to decline to find a breach of s. 11(b) even where net delay exceeds the Jordan ceiling and is not justified by exceptional circumstances.
[72] In cases where delay exceeds the ceiling, the Crown argues, courts should have a parallel discretion to refuse to find a breach of s. 11(b), based on several factors. These include the extent to which the delay exceeds the threshold, the extent to which that delay was foreseeable or quantifiable when critical case management decisions were made, the way in which the Crown managed the delay, and the effect of a stay on the administration of justice, “taking into account all the circumstances” (A.F., at para. 92). These circumstances include the parties’ conduct, the public’s interest in having serious charges tried on their merits, and the impact of a stay on any victims.
[73] To justify this change to the Jordan framework, the Crown points to data from Statistics Canada — which was not raised before the lower courts — indicating that between 2016, the year Jordan was decided, and 2023, the proportion of cases exceeding the Jordan ceilings increased significantly, even as the total number of criminal cases in the system decreased (A.F., at para. 83, citing Statistics Canada, Table 35-10-0173-01: Key indicator results and absolute change for annual data, adult criminal court and youth court (2024) (online)). The Crown attributes this increase to Jordan, but this attribution is unsupported by any other evidence. Indeed, upon closer examination of the data from Statistics Canada, it is evident that the proportion of cases over the Jordan ceilings decreased in each full year of reporting after Jordan was released — until 2020-21, when it spiked to previously unseen levels during the height of the COVID-19 pandemic. The most recent data available from Statistics Canada for 2023-24 actually shows a decrease in the proportion of cases exceeding the ceilings — a trend one might expect if the pandemic were largely responsible for the 2021-23 spike (Table 35-10-0173-01: Key indicator results and absolute change for annual data, adult criminal court and youth court (2025) (online)). With that said, there can be no doubt that, as the Crown submits and as judges, journalists, and politicians across the country have noted with concern, the number of criminal proceedings resulting in stays is troubling. Section 11(b) of the Charter exists to ensure timely justice: even one stay of proceedings is one too many.
[74] But the Jordan framework, as clarified by these reasons, is flexible enough to address these troubling trends without incorporating the Crown’s proposed residual discretion. As I will explain, the Crown’s proposal is inconsistent with Jordan and replicates the flawed Morin approach rejected in Jordan. It is also unnecessary, given the considerable latitude that trial judges already have to expedite proceedings using their case management powers.
[75] The proposed residual discretion is inconsistent with Jordan. This Court could not have been clearer in Jordan: the sole basis on which the Crown may justify delay exceeding the ceiling is that exceptional circumstances — generally either discrete circumstances or case complexity — justify the delay and render it reasonable (paras. 71 and 81). There is no room within the Jordan breach analysis for a final, discretionary balancing of societal interests against the accused’s s. 11(b) right. The Crown’s proposal would reintroduce Morin’s “dice roll” (Jordan, at para. 32). Like the treatment of prejudice under the Morin framework, an inquiry into the effects of a stay on the administration of justice is likely to produce inconsistent results (see Jordan, at para. 33). And, again like the analysis required by Morin, the Crown’s suggested approach is designed to excuse delay, not prevent it, and therefore “encourages parties to quibble over rationalizations” for lost periods of time (Jordan, at para. 36).
[76] In sum, the Crown’s proposed change contradicts the very structure of the Jordan framework. Jordan’s bright-line approach simplified litigation in this area. Restoring a flexible, interest-balancing test would undo that. It would remove one of the key systemic incentives to curb delay and would prompt lengthy and unpredictable litigation about whether an accused’s s. 11(b) right has been violated when delay has breached Jordan’s presumptive ceiling. Just as the Morin framework had “itself become a burden on already over-burdened trial courts” (Jordan, at para. 38), the Crown’s approach would create more, not less, delay.
[77] There is a clear reason why the kinds of societal considerations the Crown would import into the Jordan framework have no place in the analysis of whether delay has breached the accused’s s. 11(b) right. Considerations of public interest go to the questions of justification and remedy for a Charter breach, not to the question of whether the Charter right has been breached at all. These categories of questions should be kept analytically distinct (R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 134; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 200, per Deschamps J., concurring in part). Under Jordan, delay is unreasonable, and the accused’s s. 11(b) right has therefore been breached, where net delay exceeding the ceiling cannot be justified by the exceptional circumstances of the particular case. Once delay has been found to be unreasonable, the Charter right is breached.
[78] The Crown’s proposed residual discretion is also unnecessary. Trial judges have at their disposal broad case management powers that, when applied proactively and creatively, can avoid delay that can rise to the level of a s. 11(b) breach. Case management powers can and should be used to avoid unnecessary delay before it occurs and are powerful tools for that purpose (Cody, at para. 38; R. v. Haevischer, 2023 SCC 11, [2023] 1 S.C.R. 416, at para. 76). Where the courts, the Crown, and defence counsel collaborate, as Jordan demands, to prevent delay from arising, there are many strategies that can concretely reduce the time it will take to adjudicate a charge on its merits. For example:. If the delay is because there are not enough judges available in the jurisdiction, the court could order a change of venue to a region with more judges available;
. If the delay is because the accused is self-represented, the court could appoint an amicus curiae;
. If the delay is because Crown disclosure is being delayed unreasonably, the court could order immediate or expedited full disclosure;
. If the delay is because defence counsel has limited ability to consult with the accused at a detention facility, the court could order that the accused be moved to another facility or could make orders to facilitate communication with counsel;
. If the delay is because of a complex proceeding under s. 276 or s. 278.92 of the Criminal Code, the court could order that the procedures be simplified, such as by conducting the stage 1 proceeding in writing, or that the stage 1 and stage 2 proceedings be scheduled together (see, generally, R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3);
. If the delay is because the Crown is proceeding with a lengthy charge sheet, the court can work with the Crown to divide the charges into multiple shorter trials or reduce the charges to those that are essential to the proper administration of justice. [79] In short, the Jordan framework and the inherent powers of trial judges already provide a great deal of flexibility to prevent and address delay before it reaches the level of a Charter breach. Thus, a residual discretion to avoid finding a breach of s. 11(b) is both unnecessary and inconsistent with Jordan.
[80] The residual discretion the Crown proposes can be reconciled with Jordan only if it is understood to be a consideration going to the remedy for a s. 11(b) breach. Any change to the law on remedies available following a breach of s. 11(b) would have to be reconciled with R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, in which this Court ruled that once a s. 11(b) breach is established, the minimum remedy is a stay of proceedings.
[81] It may be that the time is near at hand when Rahey should be revisited. Its assumptions have not been tested against the jurisprudential, legislative, and societal developments of the past four decades. It may be necessary to consider whether this precedent remains workable or whether its foundations have been eroded by significant societal or legal change (Auer v. Auer, 2024 SCC 36, at para. 32).
[82] However, this is not the case in which to revisit Rahey, for two reasons. First, the issue is not properly before us, was not addressed in the lower courts, and has not been fully argued. Second, on a proper application of the analysis for case complexity, the issues that animate the Crown’s concerns about unfairness and arbitrariness in this case can be addressed within the existing scope of the Jordan framework.
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