JSL Blog | Delayed Criminal Case

Delayed Criminal Case


What Happens If Your Criminal Case Delays?

Sometimes, if a criminal case takes too long to get to trial, and it is not the fault of the accused, the court will say “enough is enough” and dismiss the charge. This is because the Canadian Charter of Rights and Freedoms guarantees the right to a trial without delay. This is a matter of fundamental fairness to the accused. Previously, when faced with the decision of whether to dismiss a criminal case or not because of delay, a court would engage in a detailed examination of the timeframe starting from when the accused was charged and ending with the trial date. Frequently, this examination would lead to unpredictable and varying results.

On July 8, 2016, the Supreme Court of Canada revisited the law surrounding delay and criminal cases and attempted to replace the unpredictability of the old process with a new straightforward approach. In the case of R. v. Jordan 2016 SCC 27, the court set the following guidelines:

1. The presumptive ceiling for getting to trial is 18 months for cases tried in the provincial court
2. The presumptive ceiling for getting to trial is 30 months for cases in the superior court
3. Delay attributable to or waived by the defence does not count towards the presumptive ceiling
4. Once the presumptive ceiling is exceeded, the burden is on the prosecution to show why the charge should not be dismissed
5. If the prosecution cannot do so, a stay will follow

This new approach will greatly clarify and provide predictability to future cases. Although all cases are unique, and reasons for delay will always vary, the Supreme Court has provided clear guidance and established a new test that is now the law in Canada.

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