Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees that individuals charged with an offence have the right “to be tried within a reasonable time.” But what does this right actually mean? How and where do our courts draw the legal line between reasonable and unreasonable time? Put differently, at what point is an accused’s s.11(b) right violated?

Nearly ten years ago, in 2016, the Supreme Court of Canada (SCC) answered this question. In R. v. Jordan, the appellant, Barrett Jordan, was charged on a 14-count information (alongside nine other co-accused) for various offences relating to the possession and trafficking of drugs (para 7). After numerous delays attributable to both the Crown and defence, the total time from the swearing of his information to the conclusion of Mr. Jordan’s trial was 44 months (after deducting delays caused by the defence). The majority of the Supreme Court held that a delay of nearly four years in bringing a case of “modest complexity” to trial was reflective of the “culture of complacency” within the criminal justice system regarding such lengthy delays (para 4).

This complacency, the majority held, demanded a new framework setting out an individual’s s.11(b) rights. Thus, in Jordan, the Supreme Court introduced presumptive ceilings on the time it ought to take to bring an accused to trial: 18 months for cases to be tried in provincial courts, and 30 months for cases to be tried in superior courts (paras 46-8). Should delay exceed these ceilings, the SCC continued, it is presumptively deemed to be unreasonable, and the Crown must then establish that the delay stemmed from exceptional circumstances. If this cannot be established, the delay is held to be unreasonable and must be remedied by a stay (i.e., immediate halting) of proceedings (para 47). It is worth noting, however, that a stay of proceedings in this context does not work exactly like a “get out of jail free” card in Monopoly. The stay may allow the accused person to ‘go free’, but the initial charge will remain on their record and is, therefore, visible to law enforcement. While the accused avoids legal judgement, they will likely still face the social judgement and stigma associated with criminal charges. Nonetheless, the Court held that these ceilings are “intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise” (para 50).

This concern for the potential of s.11(b) to become a ‘hollow promise’ raises a number of interesting and interrelated questions. While Jordan may have worked to provide defence counsel with a metaphorical stopwatch they could use to safeguard their clients’ s.11(b) rights, both the provincial and superior court ceilings are still lengthy. Defence’s assertion that either the 18- or 30-month ceiling (depending on context) has been exceeded requires the preparation of a detailed application record, including an itemized timeline of proceedings and all court appearances. The preparation of these documents, as I have seen first-hand, is an incredibly time-consuming process. Indeed, defence counsel is required to produce copies of all notices of disclosure release, copies of all emails and communication with the Crown, and copies of official transcripts from each previous court appearance. The creation of a s.11(b) application record is, to put it simply, a lot of work.

As disclosed in its 2022-2023 Annual Report, Legal Aid Ontario (LAO) approved more than 56,000 criminal legal aid certificates (i.e., vouchers guaranteeing funds for the hiring of a private lawyer for a specified number of hours to low-income individuals). In its Rules for Fees and Disbursements for lawyers, moreover, Legal Aid Ontario clearly states that there is a maximum of 8 billable hours for “all preparation, including drafting, serving and filing of the notice of motion and factum for the first application for an order pursuant to the Canadian Charter of Rights and Freedoms” (p. 7). This arrangement creates a situation where defence lawyers on certificates are only permitted to bill 8 hours of time when, in reality, they have spent days (if not weeks) gathering, organizing, and drafting materials. Thus, while it is the responsibility of defence counsel to remain mindful of the Jordan stopwatch in their hand, they will very likely not be fairly compensated for the time necessary to thoroughly pursue the remedy for their client.

I discussed this arrangement with a criminal defence lawyer who had just recently submitted a s.11(b) application on behalf of a legal aid client. I explained to them that, as I saw it, LAO created an environment that would result in one of two possible outcomes: a) a lawyer could submit a ‘half-baked’ application, completed as quickly as possible given the funding constraints set by LAO; or b) a lawyer could essentially work ‘pro bono’ to make certain that they have defended their client’s rights to the best of their ability.

After pausing briefly to consider my question, the lawyer informed me that they believed LAO paying so little was a “slap in the face” telling defence counsel to “do free work” for their clients. This situation, they continued, is exacerbated by LAO “knowing” that “we will do it to win for our clients.” The lawyer also explained that while they are personally willing to unpaid work, they were familiar with instances where courts had tossed out poorly done s.11(b) applications because other lawyers had submitted incomplete records of events and proceedings. “You have to double, triple, quadruple check 11(b)s,” they said, “because what you’re asking for is so big [i.e., a stay] and the court doesn’t want to give it to you.”

While I do not have an answer to this question, I am curious: if the remedy for a s.11(b) violation is ‘so big’ and the application necessary to obtain that remedy is equally significant, does LAO’s underfunding of legal counsel for Charter-related motions work to transform s.11(b) into a “hollow promise” for at least some accused?