Your Right to Be Tried Within a Reasonable Time: Understanding Section 11(b) of the Charter
If you have been charged with a criminal offence in Canada, one of the most important rights you have is the right to be tried within a reasonable time. This right comes from Section 11(b) of the Canadian Charter of Rights and Freedoms, and the Supreme Court of Canada has made it clear: unnecessary delay is unacceptable, as justice delayed is justice denied.
What Is Section 11(b) of the Canadian Charter of Rights and Freedoms?
11. Any person charged with an offence has the right:
(b) to be tried within a reasonable time;
What Is the Purpose of Section 11(b)?
1. It protects accused individuals by:
Reducing the stress, anxiety, and stigma of having charges hanging over them.
Protecting their liberty by limiting long periods of pre-trial custody or strict bail conditions.
Protecting their fair trial rights by ensuring the case is heard while evidence is still fresh and available.
2. It protects society by:
Ensuring people who break the law are brought to trial quickly.
Making sure accused persons are treated fairly, strengthening trust in the justice system.
Helping victims and witnesses, who benefit when cases are dealt with promptly.
Maintaining public confidence by ensuring the justice system operates efficiently.
What Does “Within a Reasonable Time” Mean?
In R v. Jordan, 2016 SCC 27, the Supreme Court created clear presumptive ceilings for delay:
1. Provincial Court (Alberta Court of Justice): 18 months from the date the charge is laid until the end of trial.
2. Superior Court (Court of King’s Bench): 30 months from the date the charge is laid until the end of trial.
If the total delay exceeds the ceiling, the delay is presumed unreasonable unless the Crown can justify it.
Not All Delay Counts Against the Crown
Courts subtract three main categories of delay:
1. Defence Delay
This includes:
Failing to appear
Late disclosure requests that should have been made earlier
Adjournments requested by the defence
Delay caused by changing lawyers
If the defence caused or waived the delay, it does not count toward the Jordan ceilings.
2. Exceptional Circumstances
Events outside the Crown’s control that could not reasonably have been prevented.
Examples:
Unexpected medical emergencies
Sudden unavailability of a key witness
Natural disasters (such as COVID-19)
Major system-wide issues (like courthouse closures)
Exceptional circumstances pause the Jordan clock.
3. Inherent Time Requirements in Complex Cases
Some cases simply take longer:
Massive disclosure
Multi-accused trials
Undercover investigations
Novel legal issues
Digital forensics
Complexity can justify extra time if the Crown acted reasonably.
How Waiver of Jordan Timelines Works
In Korponay v. Canada (AG), [1982] 1 S.C.R. 41, the Supreme Court set the standard for waiver.
A waiver must be:
1. Clear — the accused explicitly states they are waiving delay.
2. Unequivocal — no ambiguity; silence is not waiver.
3. Informed — the accused must understand what they are waiving.
Sometimes waiving delay is strategic. When that happens, the accused places the waiver on the court record for a defined period.
What Happens If Delay Exceeds the Jordan Ceiling?
If the delay is longer than 18 months (Provincial Court) or 30 months (Superior Court) and the Crown cannot justify it:
The remedy is a stay of proceedings, which ends the prosecution entirely.
How Does This Apply to Your Case?
Determining whether you have a viable 11(b) application requires:
Calculating the total time from charge to anticipated end of trial
Subtracting defence-caused or waived delay
Comparing the net delay to the Jordan ceiling
Assessing whether the Crown can justify any over-ceiling delay
If the net delay exceeds the presumptive ceiling, it is presumed unreasonable.
If it falls below the ceiling, the defence must show:
A sustained effort to move the case forward, and
That the case took markedly longer than it reasonably should have
The court will also consider whether the case was particularly complex.
If You Are Charged With an Offence: Consult a Criminal Defence Lawyer
Defence decisions can affect whether:
A delay counts against the Crown
You have a valid 11(b) argument
Your charges could ultimately be stayed
If you want to know how long the Crown has to get your case to trial, speak to a lawyer. They can calculate delays properly and protect your Charter rights throughout the process.
