Re-Charting the Remedial Course: Interest-Balancing and Alternative Remedies Post-Jordan
Bibliographic record
Abstract
In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest-balancing” framework—where individual and societal interests are weighed against one another—to a calculus largely devoid of interest-balancing. The first section of this article contends that, while this shift promises a host of practical benefits, the dearth of any interest-balancing under either Jordan or Rahey results in a reductive section 11(b) regime, which ignores case-by-case variations in factors that are plainly relevant to whether a given prosecution ought to be stayed. The second section of this article surveys existing interest-balancing remedial frameworks under the Charter, arguing that the interests removed in Jordan are otherwise considered to be, and ought to be re-introduced as, remedial factors. The third section addresses the practical effects of the automatic stay rule on Canadian society, accused persons, and section 11(b) jurisprudence itself. The fourth proposes that the rationale for the automatic stay rule is both problematic and obsolete, necessitating the adoption of a “corrective justice” approach to section 11(b) violations. The paper concludes by outlining how the ideal remedial framework would function.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.023 | 0.031 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.010 | 0.043 |
| Scholarly communication | 0.012 | 0.012 |
| Open science | 0.005 | 0.007 |
| Research integrity | 0.013 | 0.022 |
| Insufficient payload (model declined to judge) | 0.004 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".