Violation du plafond présumé

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General Principles

The Jordan framework allows for a finding of a breach of s. 11(b) even where the presumptive ceiling has not been reached.

It has been suggested that the court may still stay a charge within the Jordan time limitation where the delay is "shocking, inordinate and unconscionable."

A stay is still available while the period of time is within the ceiling, so long as the defence can establish:

1. "it took meaningful steps to demonstrate a sustained effort to expedite the proceedings", and
2. "the case took markedly longer than it reasonably should have".

Burden

The burden is upon the defence to show that it "took meaningful, sustained steps to expedite the proceedings."

Rarity of Under-Ceiling Breaches

A stay within the presumptive ceiling should be considered "rare" and "limited to clear cases."

Reasonable Time Requirement

The reasonable time requirement will depend on factors including:

1. complexity of the case;
2. local considerations;
3. Crown efforts to expedite the proceedings.

Local considerations should involve the judge "employ[ing] the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances."

"Meaningful" and "Sustained" Steps

For a breach to be found when within the presumptive ceiling the defence must show "initiative" through "meaningful and sustained steps" to be tried quickly.

The exercise of determining whether appropriate steps were taken requires that the judge to "consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible."

The defence are expected to act "reasonably" not perfectly."

To look for meaningful and sustained steps, the court should consider:

1. attempt to set earliest possible hearing dates;
2. being cooperative and responsive to the Crown and court
3. put Crown on notice when delay is becoming a problem;
4. conduct applications reasonably and expeditiously.

Example of Appropriate Steps

In a given case, the accused can express an intention to expedite the case in any number of methods including:

• "At the set date appearance, [accused] could ... ask[] the court to direct that the trial co-ordinator find earlier dates."
• "counsel [could] point out that he was in custody on these charges or in any way emphasize his custodial status."
• "If ... stuck with accepting [later] dates, [counsel] could ... ask[] that the case be put on a wait list for consideration of earlier dates if they became available."
• Counsel "could ... ask[] for the case to return periodically to check for any newly available dates."
• Counsel could seek "the assistance and co-operation of Crown counsel in getting earlier dates."
• Counsel could make "reasonable admissions – such as continuity – that would have shortened the time requirements of the case."

Prejudice as a Factor

Where the ceiling is breached, prejudice to the accused is not relevant. However, it is relevant to analysis for the finding of a breach where the ceiling has not been surpassed.

See Also

• Charter Delay (Cases)