Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19

Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time. Although COVID-19 appears to be a straightforward example of an “exceptional circumstance” under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework—what this article calls “discrete systemwide events.” Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature. Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively on the steps available in an individual case, while systemic delay is addressed indirectly through presumptive ceilings. Because the presumptive ceilings were not calibrated with COVID-19 in mind, they cannot account for COVID delay. Nor can systemic responses to COVID delay be assessed as part of the general exceptional circumstances analysis: Such an approach would require judges to adjudicate the reasonableness of myriad institutional policies, giving rise to problems ranging from a lack of data to separation of powers issues. This conundrum points towards one of two extremes: discount COVID delay without a full Jordan analysis, thereby partially relieving the Crown of its burden to justify presumptively unreasonable delay and leaving accused persons to bear the cost; or effectively prevent Crowns from justifying COVID delay as an exceptional circumstance, thereby risking thousands of stayed criminal charges flowing from the pandemic. This article suggests an alternative approach that navigates between these extremes: In some instances, delay caused by a discrete systemwide event like COVID-19 should be remedied by a sentencing reduction, authorized either by the Charter or by the sentencing process set out in the Criminal Code. This solution, while imperfect, achieves a more palatable result while adding minimal complexity to the section 11(b) analysis. If adopted, it could save accused persons from disproportionately bearing the costs of COVID delay, which would be the likely outcome were the Jordan framework applied straightforwardly.

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