Where Delay Falls Below the Ceiling

• Author: Tracy Kozlowski/Joanne Stuart
• Pages: 142-146

142

 8

Where Delay Falls Below the Ceiling

A. ONUS AND TEST TO MEET

Where, aer account has been taken of defence-caused delay, any excep-

tional circumstances, and the complexity of the case, the net delay sits

below the applicable eighteen-month (in provincial court) or thirty-

month (in superior court) ceiling, the onus will be on the defence to

demonstrate that the delay is unreasonable in the circumstances.

Recalling that in formulating the ceilings, the Supreme Court already

took account of tolerable levels of institutional delay, cases that are

stayed due to unreasonable delay though the net delay count falls below

the applicable ceiling, “stays beneath the ceiling [will] be granted only

in clear cases.”

To establish that a matter with delay below the applicable ceiling for

net delay is nevertheless unreasonable, the defence must satisfy each of

the following criteria:

1) that the defence took meaningful steps demonstrating a sustained

eort to expedite the proceedings; and

2) that the case took “markedly longer” than it reasonably should have.

Where each of the requirements cannot be established, “the s. 11b

application must fail.”

1 R v Jordan, 2016 SCC 27 at para 82 [Jordan].

2 Ibid at para 83.

3 Ibid at paras 82–83; R v RD, 2020 ONCA 23 at para 38 [RD]; R v Coulter,2016 ONCA 704

at paras 58 and 87–89 [Coulter]; R v Daponte, 2021 ONCA 14 at paras 25–27 [Daponte];