In R. v. J.F., 2022 SCC 17, May 6, 2022, the accused was charged in February 2011, with a number of sexual offences in relation to his daughter. Six years later, he was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittals and ordered a new trial.
Prior to the second trial commencing, the accused applied for a stay of proceedings to be entered, alleging a breach of section 11(b) of the Charter. The application was granted and a stay was entered. In doing so, the application judge combined the delays for the first trial and second trials. An appeal to the Quebec Court of Appeal was dismissed. The Crown was granted leave to appeal to the Supreme Court of Canada.
The Supreme Court described the issues raised in the following manner (at paragraph 2):
This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?
The appeal was allowed and the stay was set aside. The Supreme Court held that the Jordan framework applies to retrials (at paragraphs 3 and 4):
…an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. That being said, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework.
The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.
(1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused’s first trial?
The Supreme Court held that that “the computation of delay restarts at zero when a new trial is ordered… Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial” (at paragraph 55).
(2) Do the presumptive ceilings established in Jordan apply to retrial delay?
The Supreme Court held that “[a]fter a new trial is ordered, the accused regains the status of a person charged with an offence and the Crown once again has a duty to bring the accused to trial within a reasonable time. Delay following such an order is trial delay and therefore falls within Jordan…Where a s. 11(b) motion is brought in the course of a retrial, it is the delay in that trial that remains the focus of the analysis…a court must begin by calculating the total delay between the order for a new trial and the actual or anticipated end of that trial” (at paragraphs 61, 73, and 77).
The Supreme Court indicated that “[i]n this case, the respondent did not act in a timely manner. Neither before nor during his first trial did he raise an infringement of his right to be tried within a reasonable time. Nor did he make an argument to this effect in the Court of Appeal after the Crown decided to appeal the verdict. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion” (at paragraph 74).
The Court concluded that a stay was inappropriate because “the order was made by the Court of Appeal on June 13, 2018. At the time the motion for a stay of proceedings was argued, the anticipated end of the trial was April 18, 2019, and the total delay was estimated at 10 months and 5 days. None of the delay was attributable to the defence. This delay is well below the 30‑month presumptive ceiling applicable to the first trial” (at paragraph 77).