Transitional Exception (Charges Laid Before 8 July 2016)

• Author: Tracy Kozlowski/Joanne Stuart
• Pages: 147-150

147

 9

Transitional Exception

(Charges Laid Before 8 July 2016)

A. RATIONALE

The transitional exception has a limited application. It only applies to

cases that were “in the system” on 8 July 2016, which was the day on

which the R v Jordan decision was released. This included matters where

charges had just been laid to matters pending appeal at the time of the

decision. The creation of the transitional exception was the Supreme

Court’s way of immediately imposing the Jordan framework in a way that

acknowledged that the parties would have placed reasonable reliance on

the legal framework provided in R v Morin and its progeny and could

not have been aware of the Jordan framework prior to the release of the

decision in Jordan. This exception was intended to prevent a recurrence

of the situation that occurred aer the release of Court’s decision in

Rv Askov, where the Court’s abrupt change in law, in Ontario alone, led

to the stay or withdrawal of tens of thousands of criminal charges. As

the Court in Jordan noted, “[s]uch swi and drastic consequences risk

undermining the integrity of the administration of justice.”

At this point, it is highly unlikely that many transitional cases

remain pending. Nevertheless, it is important to understand how the

transitional exception has been applied in order to comprehend the

1 R vJordan,2016 SCC 27at paras5–6 and 95 [Jordan].

2 Ibid, above note 1at paras 92–104; R v Morin, 1992 CanLII 89 (SCC) [Morin].

3 Jordan, above note 1at paras 93–94; R v Askov, [1990]2 SCR 1199.

4 Jordan, above note 1 at para 92.