Any person charged with an offence has the right…to be tried within a reasonable time.
Section 11(b) of the Canadian Charter of Rights and Freedoms
In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada 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). A trial judge must assess the total delay from the charge to the actual or anticipated end of trial, while subtracting any defence delay (Jordan at para. 47).
Defence delay includes delay implicitly or explicitly waived by the defence, and delay occasioned when the Crown and the court are ready to proceed but the defence is not (Jordan at paras. 61 to 64).
Defence delay does not include “defence actions legitimately taken to respond to the charges” (Jordan at para. 66). As the Court explains at para. 65:
…the defence must be allowed preparation time... In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.
The bottom line is that taking proper steps to respond fully to a criminal charge does not require you to waive your right to be tried within a reasonable time. The presumptive ceilings include time for defence counsel to do their job, including collecting and reviewing disclosure materials in advance of election/plea and advancing any well-founded pre-trial applications.
Counsel must resist improper pressure to sacrifice a client’s right to be tried within a reasonable time. In doing so, counsel should articulate, on the record, why a particular action is necessary to advance an accused’s right to make full answer and defence.