The Supreme Court of Canada is taking another look at its landmark 2016 Jordan ruling on unreasonable trial delays, agreeing to hear a new case where it will further hone details of how the justice system applies strict rules on time limits.
The leave to appeal in a case called Jacques-Taylor, granted late last month, is one of two Jordan cases that justices on the Supreme Court will consider over the coming months.
It is part of a continuing legal process to shape the parameters of Jordan. The 2016 ruling upended how the justice system had long operated, when the Supreme Court instituted deadlines for criminal trials: 18 months in provincial courts and 30 months in superior courts.
The initial chaos unleashed by Jordan morphed into years-long reverberations, as all courts struggled with stretched resources, judicial vacancies and the pandemic. From early 2023 through late last year, Jordan derailed more than 400 criminal cases across the country.
Yet nearly nine years after the Supreme Court delivered Jordan in a surprise 5-4 ruling, there remain questions of how to precisely determine how the Jordan limits are triggered.
In the case the court agreed to hear in December, Elijah Jacques-Taylor and several co-accused were charged with firearms offences in 2021. An Ontario Court of Justice judge granted a stay in 2023, after tallying a trial delay of 18 months and two weeks, fractionally over the Jordan limit. Last June, Ontario’s Attorney-General lost again in a unanimous decision at the province’s appeal court.
The specific issue is how to account for delay caused by lawyers for the co-accused. Eugene Meehan, a partner at Supreme Advocacy LLP in Ottawa, said the top court “will be laser-focused on this narrow issue.”
Since Jordan, the top court has issued more than a half-dozen decisions that have addressed specific details on delays. The question of co-accused has been on the minds of Supreme Court justices going back to a brief Jordan-related decision in 2021 called Yusuf, when the justices said they chose “to leave for another day various legal issues.”
The continuing challenges of Jordan, with cases regularly stayed before resolution, means the Supreme Court’s rulings in relation to Jordan are watched carefully by the legal community. Ontario’s Attorney-General didn’t put forth any sweeping claims in its appeal, but the decision to hear the Jacques-Taylor case sparked questions.
Michael Plaxton, a law professor at the University of Saskatchewan, said in a post on X that it was “tempting to speculate that the SCC is thinking about some sort of shift on unreasonable delay.”
Chris Sewrattan, a Toronto criminal lawyer, said the Supreme Court could view the Jacques-Taylor case more broadly as an “opportunity to recalibrate Jordan.” He is currently seeking leave to appeal to the Supreme Court in a separate Jordan-related case.
The sexual-assault case involves a 2023 Ontario Superior Court of Justice ruling where the delay was counted at 26.5 months – under the Jordan limit – but a stay was granted. The judge cited judicial vacancies in her reasoning. The ruling garnered surprise in the legal community.
The Attorney-General of Ontario challenged that decision at the province’s Court of Appeal and last October won a unanimous decision that set aside the stay and ordered a new trial. That’s scheduled this June back in superior court.
Mr. Sewrattan was brought on to seek leave to the top court on behalf of the man whose case was originally stayed. He argues the Ontario appeal court’s decision “excuses rather than resists a culture of complacency” about delays. He’s requested an expediated decision on the leave and to join it with the Jacques-Taylor case.
When Jordan was decided, Supreme Court Chief Justice Richard Wagner had not yet become the country’s top judge. He and then-chief justice Beverley McLachlin were in the minority of the 5-4 Jordan decision. The Charter right for a trial within a reasonable time had been, until 2016, weighed on a case-by-case basis, following the 1992 Morin decision. The minority in Jordan said that delays “should not be defined by numerical ceilings.”
Chief Justice Wagner, in his job leading the top court, has consistently defended the landmark ruling: “Jordan is the law,” he said last June at his annual news conference. He emphasized why delays must be minimized: “It’s not fair for the accused, it’s not fair for the victims, it’s not fair for the witnesses, it’s not fair for society.”
According to Alison Craig, a partner at Posner Craig Stein LLP, a lot of the stress under Jordan is put on defendants. It is the issue again in Jacques-Taylor, the latest Jordan case. She said courts often push defence counsel to squeeze their own schedules to keep cases under the Jordan time limits.
“A lot of things have changed in the justice system,” said Ms. Craig, who is not involved in the current cases. “Jordan definitely needs, maybe not an overhaul, but some adjusting.”