Timely justice is one of the hallmarks of a free and democratic society.
R. v. Jordan, 2016 SCC 27, at para. 1
The state is not permitted to allow an accused to languish in limbo after the police lay a criminal charge. An accused has a constitutional right to be tried within a reasonable time (section 11(b) of the Canadian Charter of Rights and Freedoms).
The constitutional guarantee of a timely trial protects an accused’s interests in liberty, security of the person, and a fair trial. As noted by the Supreme Court of Canada:
…Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence (Jordan at para. 20).
In Jordan, the Supreme Court crafted a new conceptual framework to assess whether the state has violated an accused’s right to be tried within a reasonable time. The Court established time limits (‘ceilings’), beyond which, delay is presumptively unreasonable: eighteen months for an accused standing trial in a provincial court; and thirty months for an accused standing trial in a superior court (Jordan at para. 46).
As the Court explains at para. 47:
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. (Emphasis in the original).
A stay is a judicial termination of the prosecution.
While rare, it is possible for a delay below the presumptive ceiling to be unreasonable (Jordan at para. 48).