Supreme Court of Canada

Appeal Heard: November 30, 2021 Judgment Rendered: May 6, 2022 Docket: 39267

Parties

Between:

Her Majesty The Queen — Appellant

and

J.F. — Respondent

— and —

Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Lawyers' Association of Ontario, Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal-Laval-Longueuil — Interveners

Indexed as: R. v. J.F.

Citation: 2022 SCC 17

File No.: 39267.

2021: November 30; 2022: May 6.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

On appeal from the Court of Appeal for Quebec

Headnote

Constitutional law — Charter of Rights — Right to be tried within reasonable time — Order for new trial — Whether, after new trial is ordered, accused can file motion under s. 11(b) of Canadian Charter of Rights and Freedoms for stay of proceedings based on delay in accused's first trial — Whether presumptive ceilings established in Jordan apply to retrial delay.

In February 2011, the accused was charged with seven counts involving sexual offences against his daughter. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, following a preliminary inquiry. Argument was completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, the Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, the accused was acquitted on all counts. On June 13, 2018, the Quebec Court of Appeal set aside the acquittal and ordered a new trial. Before the retrial began, the accused filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The motion concerned the delays in the first trial and the retrial.

In assessing whether the s. 11(b) right had been infringed, the trial judge combined the delays for the first trial and the retrial. She held that the accused's right to be tried within a reasonable time had been infringed, and she entered a stay of proceedings. The Court of Appeal dismissed the Crown's appeal, finding that it had not rebutted the presumption that the total delay between the charges and the end of the argument at the first trial was unreasonable.

Held (Côté J. dissenting): The appeal should be allowed, the stay of proceedings set aside and the case remanded to another judge of the Court of Québec for the continuation of the trial.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: The Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. The ceilings set in Jordan apply to retrial delay, but when an accused brings a motion for a stay of proceedings for unreasonable delay after an appeal court has ordered a new trial, only the delay in that trial will be counted in calculating delay.

Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows that an accused must raise the unreasonableness of trial delay in a timely manner. It is generally recognized that an accused who raises the unreasonableness of delay after trial, and particularly after conviction, is not acting in a timely manner. It is therefore only exceptionally that an infringement of the right to be tried within a reasonable time can be raised by an accused for the first time on appeal.

However, waiver of delay cannot be inferred solely from an accused's silence or failure to act. For a court to find that delay has been waived, an accused must take some direct action from which a consent to delay can be properly inferred. A court cannot regard an accused's long silence or lengthy inaction as amounting to a clear and unequivocal waiver or an acceptance of the delay associated with a past trial. Any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right. Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. Waiver is established on the basis of the accused's conduct, having regard to the circumstances of each case.

Since the adoption of the Jordan framework, which requires an accused to take appropriate action in a timely manner, an accused cannot bring a s. 11(b) motion during a retrial based on delay in their first trial. Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources. Bringing a motion in a retrial for a stay of proceedings based on first-trial delay is contrary to the parties' duty to take proactive measures and interferes with the proper administration of justice. While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist, this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected. Section 11(b) does not allow an accused to benefit unduly from the lengthening of delay. This means that an accused may not raise first-trial delay once a new trial is ordered. The computation of delay restarts at zero when such an order is made. However, a court may be able to consider first-trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances.

After a new trial is ordered, the accused regains the status of a person charged with an offence. Delay following such an order is trial delay and therefore falls within Jordan, so the presumptive ceilings established in Jordan apply to the delay in the new trial. It is not appropriate to adopt different presumptive ceilings for retrials. It has not been shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard. The presumptive ceilings established in Jordan provide a uniform general framework for assessing the reasonableness of the delay between the charge and the end of trial, irrespective of the varying degrees of prejudice experienced by different groups and individuals. The creation of a new ceiling would be incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried and to be used by courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable.

Two factors can be considered in analyzing the reasonableness of retrial delay in order to take account of the specific nature of this context: retrials must be prioritized when scheduling hearings, and retrials are, as a general rule, to be conducted in less time than first trials. These factors must be assessed contextually, as required by Jordan. In this regard, first-trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first-trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the fact that this contextual element is considered does not allow an accused to raise first-trial delay indirectly; it is the retrial delay that remains the focus of the analysis.

In this case, the accused did not act in a timely manner. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion. As a result, the delay in his first trial cannot be considered in calculating the total delay. Only the delay since the order for a new trial is counted. The total delay between the order for a new trial and the actual or anticipated end of that trial, 10 months and 5 days, is well below the 30-month presumptive ceiling. None of the factors associated with this specific context supports a finding that the accused's right to be tried within a reasonable time was infringed: the anticipated retrial delay is very short and the case was prioritized. The delay is reasonable and there are no grounds for a stay of proceedings.

Per Côté J. (dissenting): The appeal should be dismissed and the stay of proceedings upheld. There is agreement with the main principles in the majority's analysis. The approach adopted reflects the culture shift required by Jordan and provides a pragmatic solution. However, the specific context of the transition from the subjective Morin framework to the prospective Jordan framework created an exceptional circumstance. In this context, even a delay of 10 months and 5 days in a non-complex case like this one is sufficiently long to justify taking the first-trial delay into account. Because the issue of reasonableness of delay arises in a context where the accused's first trial had been completed and judgment had been reserved by the time the Court rendered its decision in Jordan, this is one of the exceptional cases in which a stay of proceedings must be entered even though the accused did not raise the infringement of s. 11(b) until after a retrial was ordered.

The accused cannot be faulted for not acting proactively and filing a motion for a stay of proceedings before the end of his first trial or in the Court of Appeal. He had a right to have the trial completed and to obtain an acquittal. Fighting to secure an acquittal is a right, not a strategy. Nor can the accused be faulted for not acting in keeping with a culture shift that had not occurred at the time of the events. Between the charges in February 2011 and the filing of the motion for a stay of proceedings in December 2018, only a period of 39 days from the first trial can be attributed to him, in nearly 8 years of proceedings. In reality, the Crown failed to prioritize the accused's case and the system failed to try him in a diligent and reasonable manner. The presumption that the delay is reasonable is rebutted.

Cases Cited

By Wagner C.J.

Applied: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; considered: R. v. Morin, [1992] 1 S.C.R. 771; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Rabba (1991), 64 C.C.C. (3d) 445; R. v. Collins, [1995] 2 S.C.R. 1104; referred to: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. MacDougall, [1998] 3 S.C.R. 45; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Rice, 2018 QCCA 198; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9; R. v. Ste-Marie, 2022 SCC 3, [2022] 1 S.C.R. 14; R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391; R. v. C.D., 2014 ABCA 392, 588 A.R. 82; R. v. Brown, [1993] 2 S.C.R. 918; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194; Phillips v. R., 2017 QCCA 1284; R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678; R. v. Hebert, [1990] 2 S.C.R. 151; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Tran, [1994] 2 S.C.R. 951; R. v. Conway, [1989] 1 S.C.R. 1659; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Boisvert, 2014 QCCA 191; R. v. Barros, 2014 ABCA 367, 317 C.C.C. (3d) 67; R. v. Nikkel, 2009 MBCA 8, 240 Man. R. (2d) 1; R. v. Fitts, 2015 ONCJ 746; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721; R. v. JEV, 2019 ABCA 359, 381 C.C.C. (3d) 392; R. v. J.A.L., 2019 ABCA 415; Gakmakge v. R., 2017 QCCS 3279; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415; R. v. Richard, 2017 MBQB 11, 375 C.R.R. (2d) 61.

By Côté J. (dissenting)

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Morin, [1992] 1 S.C.R. 771; R. v. Rabba (1991), 64 C.C.C. (3d) 445; M.G. v. R., 2019 QCCA 1170.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(b).

Authors Cited

Gold, Alan D., Michael Lacy and Laura Metcalfe. A Practical Guide to the Charter: Section 11(b). Toronto: LexisNexis, 2019.

Vauclair, Martin, et Tristan Desjardins. Traité général de preuve et de procédure pénales, 28e éd. Montréal: Yvon Blais, 2021.

APPEAL from a judgment of the Quebec Court of Appeal (Levesque, Hogue and Sansfaçon JJ.A.), 2020 QCCA 666, [2020] AZ-51688190, [2020] Q.J. No. 3213 (QL), 2020 CarswellQue 8461 (WL), affirming a decision of Roy J.C.Q., 2019 QCCQ 1236, [2019] AZ-51576046, [2019] J.Q. no 1737 (QL), 2019 CarswellQue 2045 (WL). Appeal allowed, Côté J. dissenting.

Counsel

Nicolas Abran and Justin Tremblay, for the appellant.

Diego Gramajo, for the respondent.

Tracy Kozlowski and Samuel Greene, for the intervener the Attorney General of Ontario.

Liliane Bantourakis and Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia.

Matthew W. Griener, for the intervener the Attorney General of Alberta.

Christine Mainville and Andrew Burgess, for the intervener the Criminal Lawyers' Association of Ontario.

Jean-Sébastien St-Amand Guinois, for the intervener Association québécoise des avocats et avocates de la défense.

Walid Hijazi and Julia Blais-Quintal, for the intervener Association des avocats de la défense de Montréal-Laval-Longueuil.

Reasons for Judgment

English version of the judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. delivered by

Wagner C.J. —

[1] The Chief Justice — In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, this Court delivered a clear message to all participants in the criminal justice system in Canada: everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms. By creating ceilings beyond which trial delay is presumptively unreasonable, the Court developed a prospective approach that allows the various participants to know, from the outset of the proceedings, the temporal limits within which the trial must take place.

[2] This appeal affords the Court an opportunity to decide whether the Jordan framework applies when a motion for a stay of proceedings for unreasonable delay is brought in the course of a retrial. Two questions arise: (1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused's first trial? (2) Do the presumptive ceilings established in Jordan apply to retrial delay?

[3] The first question requires this Court to determine when an accused must indicate that their right to be tried within a reasonable time has not been respected. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later, as is the case exceptionally on appeal. That being said, when an accused brings an application after an appeal court has ordered a new trial, the accused will no longer be able to raise the delay from their first trial. Only the retrial delay will be counted in calculating delay based on the presumptive ceilings applicable under the Jordan framework.

[4] The ceilings set in Jordan apply to retrial delay. The framework established in that case protects the right of an accused to be tried within a reasonable time pursuant to s. 11(b), and that provision equally guarantees this right to an accused who is tried a second time. Although it is generally accepted that retrials must be prioritized when scheduling hearings and that they will be shorter than first trials, I do not think it is appropriate to adopt different presumptive ceilings for retrials. The Jordan framework is flexible enough to be adapted to the specific circumstances of an accused who is retried.

I. Background

[5] In February 2011, J.F. was charged by indictment with seven counts involving sexual offences against his daughter. The charges covered a period from 1986 to 2001.

[6] The preliminary inquiry was completed on March 28, 2012. The trial, whose estimated length was two days, began on December 3, 2013 in the Court of Québec, district of Montréal.

[7] On December 4, 2013, the prosecution announced a voir dire on the admissibility into evidence of the complainant's video statement. The trial was then adjourned, and it resumed on October 20, 2014. On October 24, 2014, the voir dire ended and the trial judge reserved decision on it. Just over six months later, on May 8, 2015, the judge rendered his decision and found that the complainant's statement was inadmissible.

[8] The trial resumed on January 18, 2016 and ended the same day. Argument was postponed and was then completed on May 16, 2016, at which time judgment was reserved. While judgment was reserved, this Court rendered its decision in Jordan. On February 10, 2017, six years after he was charged, J.F. was acquitted on all seven counts.

[9] The Crown appealed the decision and, on June 13, 2018, the Quebec Court of Appeal set aside the acquittal on the ground that the trial judge had analyzed the complainant's credibility by relying erroneously on stereotypes and prejudices (2018 QCCA 986). It therefore ordered a new trial.

[10] On October 15, 2018, the parties agreed on dates for the retrial, which was to last 10 days. The retrial was then scheduled for April 29 to May 31, 2019.

[11] On December 28, 2018, J.F. filed a motion for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. That was the first time he alleged an infringement of his right to be tried within a reasonable time. In January 2019, the trial dates were moved up to March 11 to April 18, 2019. The motion for a stay of proceedings was argued on February 5, 2019.

II. Decisions Below

A. Court of Québec, 2019 QCCQ 1236 (Judge Roy)

[12] After making a global assessment of the delay for the first trial and the retrial, the trial judge held that the respondent's right to be tried within a reasonable time had been infringed.

[13] She rejected the Crown's argument that the accused's long silence regarding the delay amounted to a waiver of his right to be tried within a reasonable time, because such a waiver must be clear, unequivocal and informed. Noting that there was uncontested evidence showing that the accused was concerned about the delay, the judge found that he had never waived his right to be tried within a reasonable time.

[14] The judge then calculated the delay. She found a gross delay of 72 months and 3 days between the charges and the verdict at the first trial, and she determined that, of that total, 70 months and 25 days were not attributable to the defence.

[15] In the Court of Québec, the Crown did not challenge the calculation or categorization of the first-trial delay. Nor did it argue that there were exceptional circumstances or that the transitional circumstance provided for in Jordan applied. In its opinion, only the retrial delay had to be considered, that is, 10 months and 5 days. The judge rejected that argument. Taking a [translation] "global and contextual" approach to delay, she found that the first-trial delay could not be disregarded in this case given that it "is clearly unreasonable" (paras. 73 and 75 ). Not to consider it would be to deny the accused's rights and would be contrary to the shift in culture sought by this Court. The judge held that the entire delay, including the first-trial delay, had to be counted. She granted the motion based on unreasonable delay and entered a stay of proceedings.

B. Quebec Court of Appeal, 2020 QCCA 666 (Levesque, Hogue and Sansfaçon JJ.A.)

[16] The Crown appealed the trial judge's decision and argued that, under the Jordan framework, first-trial delay cannot be included once an appeal court has ordered a new trial. For the reasons given by Levesque J.A., the Quebec Court of Appeal dismissed the appeal and upheld the stay of proceedings, though it adopted a different approach than the trial judge.

[17] The Court of Appeal stated that the calculation of delay must restart at zero in cases where a new trial is ordered by an appeal court and that therefore the delay in the first trial cannot be added to the delay in the second. However, it refused to accept the Crown's argument that the fact that a new trial has been ordered prevents an accused from raising a violation of s. 11(b) based on delay in their first trial. In the Court of Appeal's view, [translation] "it would undoubtedly be unfair for an accused to be barred from presenting an initial motion on the sole ground that a violation was not raised in a timely manner" (para. 60 ). The Court of Appeal also rejected the Crown's argument that J.F.'s very long silence could be considered to be a waiver of the delay preceding the order for a new trial, given that the late presentation of a motion cannot in itself amount to a clear and unequivocal waiver. In this regard, the Court of Appeal further noted that although this Court explained in R. v. Morin, [1992] 1 S.C.R. 771, that inaction by an accused could lead to an inference that the accused suffered no actual prejudice, this reasoning no longer applies under Jordan because prejudice is no longer a factor in calculating delay.

[18] The Court of Appeal added that there cannot be an unqualified refusal to consider first-trial delay. The fact that delay was not raised during the first trial does not mean that it is reasonable. While it is preferable for an accused to raise the unreasonableness of delay as soon as possible, an acquittal may be more advantageous than a stay of proceedings. In this regard, however, Levesque J.A. cautioned that his remarks should not be taken to mean that [translation] "the late presentation of motions under s. 11(b) should be encouraged" (para. 76).

[19] The Court of Appeal proposed a two-step approach for calculating delay in a context where a new trial is ordered. Because the delays in the two trials must be considered separately, the first step is to assess the first-trial delay under the Jordan framework. Only where that delay is reasonable does it become necessary to proceed to the second step and assess the retrial delay, starting from the order for a new trial. However, the Court of Appeal did not discuss the framework that applies in analyzing retrial delay.

[20] Applying the two-step approach it had adopted to this case, the Court of Appeal began by noting that the total delay between the charges and the end of the argument at the first trial was 63 months and 8 days,[^1] from which it subtracted 1 day attributable to the defence. Finding that this total delay exceeded the 30-month presumptive ceiling established by this Court in Jordan, the Court of Appeal stated that it was up to the Crown to show that the delay was reasonable because of an exceptional circumstance or transitional considerations. Since the Crown had not pleaded any such circumstance, the Court of Appeal held that it had not rebutted the presumption that the delay was unreasonable. The Court of Appeal therefore dismissed the appeal and upheld the stay of proceedings.

III. Issues

[21] The appeal raises the following questions:

(1) After a new trial is ordered, can an accused file a s. 11(b) motion for a stay of proceedings based on delay in the accused's first trial?

(2) Do the presumptive ceilings established in Jordan apply to retrial delay?

IV. Analysis

A. Section 11(b) of the Charter and the Temporal Scope of the Right to Be Tried Within a Reasonable Time

(1) Protection Conferred by Having the Status of a Person Charged With an Offence

[22] Timely justice is one of the characteristics of a free and democratic society, and the conduct of trials within a reasonable time is of central importance in the administration of Canada's criminal justice system (Jordan, at paras. 1 and 19). Section 11(b) of the Charter reflects the importance of this principle by guaranteeing any person charged with an offence the right "to be tried within a reasonable time". The purpose of this provision is to protect both the rights of accused persons and the interests of society as a whole (R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 38). At the individual level, trials within a reasonable time are essential to protect the liberty, security and fair trial interests of any person charged with an offence, who, it should be remembered, is presumed to be innocent (Jordan, at para. 20; see also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30, citing Morin, at pp. 801-3). At the collective or societal level, timely trials encourage better participation by victims and witnesses, minimize the "worry and frustration [they experience] until they have given their testimony" and allow them to move on with their lives more quickly (Jordan, at para. 24, quoting R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1220; see also Jordan, at para. 23). Timely trials also help to maintain public confidence in the administration of justice (Jordan, at para. 25; Askov, at pp. 1220-21).

[23] Section 11(b) protects an accused only while they have the status of a person charged with an offence (R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908). The term "person charged with an offence" has been interpreted broadly by this Court and refers to a person who is the subject of criminal proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45, at paras. 11-13). A person is charged with an offence from the time the charge is laid (R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1602; Potvin, at p. 910) until the final resolution of the matter and the end of the sentencing process (MacDougall, at paras. 10 and 17-18; R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364, at paras. 26-27). On appeal, an accused is no longer a person charged with an offence (Potvin, at pp. 911-12; MacDougall, at para. 17). The accused reverts to this status only if the trial decision is set aside and a new trial is ordered (Potvin, at p. 912).

[24] While s. 11(b) protects an accused throughout the period when they have the status of a person charged with an offence, the framework established in Jordan has a limited temporal scope. The presumptive ceilings apply only to delay in holding the trial.

(2) Temporal Scope of the Jordan Ceilings

[25] Prior to Jordan, s. 11(b) applications were decided under the framework established in Morin. That framework involved a test with four factors that were to be balanced to determine whether trial delay was unreasonable: ". . . (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused's interests in liberty, security of the person, and a fair trial" (Jordan, at para. 30; Godin, at para. 18; Morin, at pp. 787-88).

[26] In an effort to end the culture of complacency that had developed in the criminal justice system, which tolerated excessive delay in bringing accused persons to trial, this Court established a new framework in Jordan for the application of s. 11(b). The Court set two ceilings beyond which delay is presumptively unreasonable: (1) a ceiling of 18 months for simple cases going to trial in the provincial court, and (2) a ceiling of 30 months for cases going to trial in the superior court or in the provincial court after a preliminary inquiry (para. 46). Delay attributable to the defence is subtracted from the total delay (paras. 47 and 60). If the net total delay exceeds the applicable ceiling, it is presumptively unreasonable. The Crown can then attempt to show that the delay is reasonable by raising exceptional circumstances (para. 47). If the net total delay is below the ceiling, the defence can try to establish that the delay is unreasonable by showing that "(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have" (para. 48 (emphasis in original)).

[27] The presumptive ceilings set in Jordan do not apply to the entire period when an accused is a person charged with an offence. The framework established in that case is limited in scope, since it provides a solution to a specific problem. Jordan deals with the culture of complacency that allows for excessive delay in bringing an accused to trial (K.G.K., at para. 34, citing Jordan, at paras. 2, 4, 13, 117, 121 and 129). The new framework applies to the delay from the charge to the actual or anticipated end of trial, that is"when the parties' involvement in the merits of the trial is complete, and the case is turned over to the trier of fact" (K.G.K., at para. 31; see also para. 33; Jordan, at para. 47; R. v. Rice, 2018 QCCA 198, at para. 41 ). Deliberation time is excluded from this framework (K.G.K., at para. 50). Sentencing proceedings are also excluded from the framework. Although the Court recognized in Jordan that s. 11(b) continues to apply between conviction and sentencing, it made no comment on how such delay should be treated (para. 49, fn. 2).

[28] Jordan also does not address the question of when an accused must bring a motion for a stay of proceedings. In this regard, it should be noted that the Court declined to decide how the presumptive ceilings should be applied where, for example, a s. 11(b) application is brought following a conviction (para. 49, fn. 2). Nor does Jordan set out the framework that applies in cases where a new trial is ordered.

[29] To determine whether first-trial delay may be raised under the Jordan framework after a new trial has been ordered, it is necessary to consider, first, the duty of an accused to act proactively with respect to delay and, second, the timing of an application based on unreasonable delay and the possibility of obtaining a remedy for the delay complained of.

B. After a New Trial Is Ordered, Can an Accused File a Section 11(b) Motion for a Stay of Proceedings Based on Delay in the Accused's First Trial?

(1) Jordan and the Duty of an Accused to Raise an Infringement of Their Right to Be Tried Within a Reasonable Time in a Timely Manner

[30] While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137-39; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9).

[31] The new framework marks a shift away from a retrospective approach and adopts a prospective standpoint that allows the various participants to know the bounds of reasonableness from the outset of the proceedings (Jordan, at para. 108; K.G.K., at para. 43). The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84-86 and 113).

[32] As this Court wrote in Morin"[t]he purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits" (p. 802). This section was not intended to make it possible for an accused to frustrate the ends of justice (Jordan, at paras. 21, 60 and 63). As the Court also recently noted, an accused may not benefit from the lengthening of delay where it is caused by the accused's own conduct (R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9, at para. 6; R. v. Ste-Marie, 2022 SCC 3, [2022] 1 S.C.R. 14, at para. 11).

[33] Defence conduct is considered under the Jordan framework, since the delay attributable to the defence is subtracted from the gross total delay (para. 60). Defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely or directly by the defence (Jordan, at paras. 61 and 63; Cody, at para. 26). Inaction may amount to illegitimate conduct on the part of the defence, because "[i]llegitimacy may extend to omissions as well as acts" (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively:

Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently" (Jordan, at para. 138). [para. 33]

[34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.

[35] It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as "encourag[ing] pre-trial s. 11(b) applications" (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows "the parties to know 'in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay'" (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)).

[36] In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.

(2) A Section 11(b) Application Can Be Brought on Appeal Only Exceptionally

[37] If a s. 11(b) motion is considered late when filed after the end of a trial, only exceptionally will an accused be able to raise this issue for the first time on appeal.

[38] Raising new arguments on appeal is generally discouraged in criminal matters, because the best interests of justice require finality in the adjudication of such matters at trial, as L'Heureux-Dubé J., dissenting, but not on this point, explained in R. v. Brown, [1993] 2 S.C.R. 918:

[39] A motion for a stay of proceedings brought for the first time on appeal, without the trial judge having had an opportunity to consider its merits, should normally be dismissed (Rabba; R. v. G. (L.), 2007 ONCA 654, 228 C.C.C. (3d) 194, at paras. 42-43; Phillips v. R., 2017 QCCA 1284, at paras. 29-31 ). The trial court is best placed to rule on such a motion, because it is the court before which the delay in question occurred.

[40] Generally speaking, appeal courts are reluctant to entertain new arguments, because they are deprived of the trial court's perspective (R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6; Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, 65 C.C.E.L. (4th) 169, at para. 19). This is also the case for constitutional issues (Roach, at para. 6; R. v. Chambers, 2013 ONCA 680, 311 O.A.C. 307, at para. 28). In exceptional cases, an appeal court has the discretion to hear an argument that was not raised in the court below (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 20; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 34). In exercising this discretion, courts must balance the right to have the matter decided properly against the interests of justice, including the interests of finality, the orderly conduct of trials and the prevention of abuse of process (Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at paras. 31-32).

[41] Where an argument is raised for the first time on appeal, the appeal court must determine whether the situation is an exceptional one in which the exercise of its discretion is warranted, having regard to all of the circumstances. For this purpose, the court must consider, among other things"the state of the record, fairness to all parties, the importance of having the issue resolved by the appellate court, and whether the issue could have been raised at trial" (Kitaitchik, at para. 35 ). Where a s. 11(b) motion is brought for the first time on appeal, the court must determine whether those criteria are met. However, it should be noted that a "s. 11(b) motion requires a factual assessment of the reasons for the delay" (Rabba, at p. 449 ) and therefore presupposes the existence of a complete evidentiary record.

[42] It is therefore only exceptionally that an infringement of the right to be tried within a reasonable time can be raised by an accused for the first time on appeal. The outcome of an unreasonable delay application brought following an order for a new trial must now be considered.

(3) An Accused's Silence or Inaction Does Not in Itself Amount to a Waiver of Delay

[43] The Crown argues that where an accused raises first-trial delay in the course of a retrial, the accused's failure to allege an infringement of their right to be tried within a reasonable time during their first trial or on appeal can be raised against them. In support of this argument, the Crown suggests that a court can regard an accused's long silence or lengthy inaction as [translation] "a waiver, an acceptance or an acknowledgment of the reasonableness of the delay in the first trial" (appellant's factum, at para. 37). More specifically, the Crown argues that, in assessing waiver, a court can consider the duration of the inaction, the accused's conduct and situation, the prosecution's conduct and the manner in which the earlier proceeding unfolded (appellant's factum, at para. 43).

[44] I must reject that proposition. Although the time at which an accused raises the unreasonableness of trial delay may affect the outcome of their motion, waiver of the delay cannot be inferred solely from the accused's silence or failure to act. This is what the Court's jurisprudence teaches, and, in my view, it would be inappropriate to depart from it. In addition to being wrong in law, this proposition would make it more difficult to apply the new Jordan framework.

[45] This Court has repeatedly stated that the requirements for finding a waiver of a constitutional right must be strictly construed but that this does not preclude an accused from waiving a procedural right (R. v. Hebert, [1990] 2 S.C.R. 151, at p. 203; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at pp. 48-49). An accused may waive protection under the Charter, but to do so, the accused must fully understand the right in question and voluntarily choose to forego it (R. v. Tran, [1994] 2 S.C.R. 951, at p. 985). Any waiver must be informed, clear and unequivocal (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667).

[46] Section 11(b) of the Charter states that any person charged with an offence has the right to be tried within a reasonable time. Such a person may waive a given delay, which will then be subtracted from the total delay (Jordan, at para. 61). It is important to note that, where "waiver" concerns the right set out in s. 11(b) of the Charter"it is not the right itself which is being waived, but rather particular periods of delay" (Jordan, at para. 61 (emphasis in original); see also Collins, at p. 1130).

[47] Waiver "can be explicit or implicit, but in either case, it must be clear and unequivocal" (Jordan, at para. 61; see also Morin, at p. 790; Askov, at p. 1228). In this sense, as the Court stated in Askov, an accused's mere silence or inaction cannot indicate a waiver of delay:

The failure of an accused to assert the right does not give the Crown licence to proceed with an unfair trial. Failure to assert the right would be insufficient in itself to impugn the motives of the accused as might be the case with regard to other s. 11 rights. Rather there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood and waived his right under s. 11(b). [p. 1228]

(See also Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 929.)

[48] Waiver must be proved by the prosecution (Askov, at p. 1229). For a court to find that delay has been waived, the accused must therefore take "some direct action from which a consent to delay can be properly inferred" (Askov, at p. 1229). The "mere silence of the accused is not sufficient to indicate a waiver of a Charter right" (Askov, at p. 1229; see also Mills, at p. 929). To be informed, this direct action must involve knowing, and accepting, the consequences of the waiver. In Collins, Sopinka J. stated that for a waiver to be found, there must be "an informed and intentional relinquishment of a known right, advantage or benefit" (p. 1130; see also Morin, at p. 790). The test for inferring waiver from delay must not be confused with the test for s. 11(b) waiver of the right to be tried within a reasonable time. As Sopinka J. stated in Collins"s. 11(b) waiver" is a term that describes a situation "in which 'an accused take[s] some direct action from which consent to delay can be properly inferred'" (p. 1130, quoting Askov, at p. 1229). The accused must fully understand the right being waived and clearly and unequivocally consent to the associated delay.

[49] Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. In Rabba, Arbour J.A., as she then was, noted that the fact that such a motion is brought after trial "would, in most cases, be fatal" and "would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter or . . . would indicate that the accused has not suffered sufficient prejudice to attract a remedy" (p. 449 ). This conclusion applied in the pre-Jordan era and must be revisited now that the Jordan framework has displaced the Morin framework. The assessment of the impact of lateness on the accused's s. 11(b) rights has now changed: while lateness is still an important factor, the prejudice inquiry is no longer relevant.

[50] I note as well that the Crown's general proposition is not easily incorporated into the new framework established by Jordan, under which prejudice to the accused is no longer considered as an analytical factor, as it was under the Morin framework. The Crown's proposition is at odds with the new framework, in that it resurrects the uncertainty and complexity of the prejudice inquiry. Under that proposition, a court hearing a motion for a stay of proceedings during a retrial would have to determine what the accused knew or should have known about the delay during their first trial; it would also have to determine whether the silence of an accused who is faced with a lengthy delay shows indifference to that delay or rather reflects a reasonable strategic choice (for example, a choice to seek an acquittal rather than a stay of proceedings). These difficulties are reminiscent of those that existed under the Morin framework, which Jordan sought to overcome.

[51] This proposition by the Crown also makes the application of the current framework more complex. Indeed, it involves a multi-factored test for inferring waiver from an accused's inaction. The factors that the Crown suggests considering include the duration of the inaction, the accused's conduct and situation, the prosecution's conduct and the manner in which the earlier proceeding unfolded (appellant's factum, at para. 43). The proposal to look at those multiple factors would detract from the clarity and simplicity of the Jordan framework.

[52] In short, therefore, the Crown's proposition cannot be adopted. An accused's silence or inaction cannot in itself give rise to an inference that the accused has waived delay, although it may be a relevant and important factor in the waiver inquiry. This conclusion is an obvious one given the fact that any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right. Waiver is established on the basis of the accused's conduct, having regard to the circumstances of each case.

(4) An Accused May Not Raise First-Trial Delay Once a New Trial Is Ordered

[53] In Jordan, the Court established that delay runs from the charge to the actual or anticipated end of trial (para. 47), but it did not specify how an order for a new trial affects the calculation of delay. However, Potvin provides useful guidance in this regard. First, Sopinka J. stated in that case that such an order revives the accused's status as a person charged with an offence (p. 912). Second, Sopinka J. cited the following passage by Doherty J.A. (as he then was), to the effect that the clock for calculating delay for s. 11(b) purposes should be reset to zero when such an order is made:

Section 11(b) does not appear to operate at the appellate stage. Section 11(b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order to a point which reflects the accused's renewed status as a person charged with the offence. [p. 912]

[54] Prior to Jordan, appellate jurisprudence seemed to allow an accused who was sent back to be tried again to raise the delay in both their first trial and their retrial (see R. v. Boisvert, 2014 QCCA 191, at para. 54 ; R. v. Barros, 2014 ABCA 367, 317 C.C.C. (3d) 67, at paras. 51-53; R. v. Nikkel, 2009 MBCA 8, 240 Man. R. (2d) 1; R. v. Fitts, 2015 ONCJ 746, at para. 5 ). This approach was consistent with the Morin framework's focus on the total prejudice suffered by the accused. Under Jordan, however, all parties must act proactively, which necessarily limits the circumstances in which the delay from a prior proceeding can be raised.

[55] The situation is completely different now, because the Court has made stays of proceedings subject to new parameters, as set out in Jordan. It should now be understood that the computation of delay restarts at zero when a new trial is ordered. This is also the interpretation adopted by the Ontario Court of Appeal and the Alberta Court of Appeal (R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at paras. 17-18; R. v. JEV, 2019 ABCA 359, 381 C.C.C. (3d) 392, at para. 37).

[56] Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources (Jordan, at paras. 41 and 116). Because the prospective approach adopted in Jordan allows the parties to know from the outset what time is reasonable for their proceedings, they have a responsibility to act when delays exceed or approach the ceiling. An accused who tolerates delay during a first trial and then tries to raise that delay in a s. 11(b) motion during their retrial is acting in a manner that is contrary to the principles underlying the Jordan framework. Such an accused is not acting proactively and is delaying raising the issue until it is too late to remedy the situation.

[57] In the instant case, even though the Quebec Court of Appeal recognized that the delay clock is reset to zero after a new trial is ordered, it found that this principle does not prevent an accused from raising first-trial delay after such an order is made (para. 59). In support of this position, Levesque J.A. made two main points. First, relying on the principle that silence does not amount to waiver, he found that J.F. had not waived his s. 11(b) right. Second, relying on the fact that prejudice is no longer a factor to be considered under the new framework, he rejected the Crown's argument that J.F.'s inaction could be inferred to mean that he had not suffered any prejudice.

[58] That approach should not be adopted. The Court of Appeal failed to consider the fact that an accused also has a duty to act proactively. On the first point made by the Court of Appeal, I must acknowledge that the court was correct in stating that an accused's long silence cannot in itself give rise to an inference that delay has been waived. With respect, however, I am of the view that the Court of Appeal made a logical error by concluding that, since silence does not amount to waiver and the accused has never waived his right to be tried within a reasonable time, the accused can raise any infringement of that right regardless of when the motion is filed. The absence of waiver does not mean that the accused can bring the motion at any time; lateness may in fact bar the motion even where there has been no waiver.

[59] With regard to the second justification it put forward, the Court of Appeal also failed to consider the responsibility that rests on accused persons when it comes to delay. It is true that prejudice is no longer a factor to be taken into account under the new framework and that the Crown can no longer attempt to justify a delay that is now presumptively unreasonable by inferring from an accused's inaction that the accused suffered no actual prejudice. However, the fact that prejudice to the accused is no longer relevant does not mean that the accused's conduct is no longer relevant. An accused who has failed to act proactively with respect to delay cannot bring a s. 11(b) motion at any time. The accused must act within the time allowed by the Jordan framework and the principles underlying it.

[60] When a new trial is ordered, the constitutional clock for calculating delay is reset to zero (Gakmakge v. R., 2017 QCCS 3279; JEV, at para. 37; Masson v. R., 2019 QCCS 2953, 57 C.R. (7th) 415, at para. 91). It follows that only the retrial delay can be counted when a s. 11(b) application is brought in that new trial. This is not to say, however, that a court may not consider first-trial delay in certain circumstances, as I will explain (para. 73).

C. Do the Presumptive Ceilings Established in Jordan Apply to Retrial Delay?

(1) The Presumptive Ceilings Established in Jordan Apply to the Delay in a New Trial

[61] In Jordan, the Court did not discuss how the framework it created would apply in a context where a new trial was ordered. However, this does not mean that the presumptive ceilings it established do not apply to new trials. Jordan has a limited temporal scope and does not encompass all types of delay (para. 49; K.G.K., at para. 39); the presumptive ceilings set by the Court relate specifically to delay from the charge to the actual or anticipated end of trial, and they apply to all trials. After a new trial is ordered, the accused regains the status of a person charged with an offence, and the protections of s. 11(b) are fully reinstated. Delay following such an order is trial delay and therefore falls within Jordan. The ceilings set in Jordan therefore apply to the delay in the new trial.

(2) The Presumptive Ceilings Should Not Be Changed

[62] The respondent and certain interveners propose the adoption of lower presumptive ceilings for retrials. This proposal cannot be accepted.

[63] This Court recently had to consider a similar proposal in K.J.M. In that case, the appellant asked the Court to establish a 12-month presumptive ceiling for single-stage proceedings in youth justice courts under the Youth Criminal Justice Act, S.C. 2002, c. 1. However, the Court declined to set a lower ceiling for youth cases. Moldaver J., writing for the majority, noted in particular that "it has not been shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard" (para. 70). The Court added that the existing Jordan framework was sufficiently flexible to be adapted to the specific circumstances of youth proceedings (para. 75).

[64] It must be remembered that the presumptive ceilings adopted in Jordan address a particular problem, that is, the culture of complacency toward trial delay. The retrospective approach that characterized the Morin framework, together with the difficulties that arose in applying that framework, played a part in exacerbating that situation. The problem was a real one, which the presumptive ceilings helped resolve (Jordan, at paras. 1-5). The same approach should be taken here.

[65] In this case, the respondent has not shown that there is a real problem, let alone one that could warrant the imposition of a new constitutional standard. To support their proposal, the respondent and the Association des avocats de la défense de Montréal-Laval-Longueuil refer mainly to the suggestion made by A. D. Gold, M. Lacy and L. Metcalfe that a six-month ceiling for trials in provincial court and a nine-month ceiling for trials in superior court be established for retrials (A Practical Guide to the Charter: Section 11(b) (2019), at p. 109). However, this academic proposal is far from establishing that there is a real problem that would justify departing from the uniform approach adopted in Jordan.

[66] I must point out that the presumptive ceilings established in Jordan provide a uniform general framework for assessing the reasonableness of the delay between the charge and the end of trial"irrespective of the varying degrees of prejudice experienced by different groups and individuals" (K.J.M., at para. 65). Like Moldaver J., I am of the view that setting ceilings applicable to new trials would be incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework. A different ceiling for retrials "would inevitably lead to increased litigation" (K.J.M., at para. 65) as courts would have to consider how to calculate delay in the case of multiple retrials and whether a different ceiling should apply to each, for example.

[67] I would also observe, as Moldaver J. noted in K.J.M., that Jordan establishes ceilings for reasonableness, not floors for unreasonableness, and that in most cases accused persons should be brought to trial within a time that is below the ceilings:

While the presumptive ceilings are a significant chapter in Jordan, they are not the full story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan's ceiling framework is not an all-or-nothing determination.

In embracing this proactive approach, prosecutors should bear in mind that the presumptive ceiling "is not an aspirational target", 18 or 30 months is still "a long time to wait for justice", and most cases "can and should" be completed in less time (Jordan, at paras. 56-57). [Underlining added; para. 66.]

[68] The Jordan framework is therefore flexible enough to be used by courts to determine whether retrial delay is reasonable, even where it is below the presumptive ceiling. Delay is not reasonable simply because it is within the applicable ceiling; it is only presumptively reasonable. Delay may be unreasonable even if it is below the applicable ceiling where the accused establishes that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have (Jordan, at para. 48).

(3) Factors to Be Considered in Determining the Reasonableness of Retrial Delay Where It Is Below the Applicable Presumptive Ceiling

[69] The retrial context differs from that of a first trial, since normally the parties have already presented their evidence and arguments a first time. To take account of the specific nature of this context, I propose two factors that can be considered in analyzing the reasonableness of retrial delay in order to determine whether the delay falls within the applicable presumptive ceiling or whether it is unreasonable where it falls below that ceiling.

[70] The first factor is the need to prioritize retrials when scheduling hearings. The parties are agreed on this point. Appeal courts and trial courts have also recognized it on a number of occasions (JEV, at para. 38; MacIsaac, at paras. 23-25; R. v. J.A.L., 2019 ABCA 415, at para. 14; R. v. Richard, 2017 MBQB 11, 375 C.R.R. (2d) 61, at paras. 22-24; Gakmakge, at para. 29; Masson, at para. 91). This court recognizes the need to prioritize retrials for both pragmatic and principled reasons. It is generally accepted that the conduct of retrials is primarily attributable to procedural, legal or other types of error. It would be unjust for an accused to have to wait as long for their retrial as they would for their first trial, especially if the delay in the first trial already exceeded the applicable ceiling. These considerations militate in favour of the prioritization of retrials.

[71] The second factor goes hand in hand with the first: retrials are, as a general rule, to be conducted in less time than first trials. The parties are also agreed on this point. It is commonly recognized that retrials will have a shorter time frame than first trials because the parties' respective positions are known to one another and the issues have already been identified. A retrial begins with a clean slate in terms of delay, but it will usually be simpler and easier to manage than the initial proceeding.

[72] These two factors are grounded in the duty of all participants in the criminal justice system to act in a timely manner. In the retrial context, this means that everyone, and especially the Crown, must ensure that retrials are prioritized when trial dates are set and that retrial delay is as short as possible.

[73] These factors must be assessed contextually, as required by Jordan. In this regard, first-trial delay is one of the circumstances that may be taken into account in the assessment. In a context where the first-trial delay exceeds the applicable ceiling, failure to act expeditiously and to prioritize the case could weigh in favour of a finding that the retrial delay is unreasonable. However, the fact that this contextual element is considered does not allow an accused to raise first-trial delay indirectly; it is the retrial delay that remains the focus of the analysis.

V. Application to This Appeal

[74] In this case, the respondent did not act in a timely manner. Neither before nor during his first trial did he raise an infringement of his right to be tried within a reasonable time. Nor did he make an argument to this effect in the Court of Appeal after the Crown decided to appeal the verdict. It was not until a few months before his retrial was to be held that he brought his s. 11(b) motion, on December 28, 2018.

[75] Although the retrial judge found that there was evidence to suggest that the accused had been concerned about delay during the first trial, the fact remains that he never applied for a remedy for that delay. The respondent was charged in February 2011, and his first trial ended in May 2016. He brought his s. 11(b) motion only in December 2018. This inaction is a significant factor.

[76] Given that the respondent brought his s. 11(b) application in the course of his retrial, the delay in his first trial cannot be considered in calculating the total delay. Only the delay since the order for a new trial is counted. The trial judge therefore erred in combining the delays for the two trials, and the Court of Appeal erred in assessing the reasonableness of the first-trial delay when the motion for a stay of proceedings had been brought in the context of the retrial.

[77] To determine whether a motion for a stay of proceedings is well founded, a court must begin by calculating the total delay between the order for a new trial and the actual or anticipated end of that trial. Here, the order was made by the Court of Appeal on June 13, 2018. At the time the motion for a stay of proceedings was filed, in December 2018, the retrial was scheduled for April 29 to May 31, 2019, but it was subsequently moved up to March 11 to April 18, 2019. The total delay between the order for a new trial and the anticipated end of the retrial is therefore 10 months and 5 days.[^2] This delay is well below the 30-month presumptive ceiling.

[78] In this case, if the respondent were to be retried, none of the factors associated with this specific context supports a finding that his right to be tried within a reasonable time was infringed. There is no evidence establishing that the retrial was not prioritized. In October 2018, the parties agreed on dates for a 10-day retrial, which was to take place from April 29 to May 31, 2019. When the respondent brought his s. 11(b) motion in late December 2018, the Crown moved up the retrial dates to March 11 to April 18, 2019, and the parties agreed to those dates. The retrial was thus expedited as a result of the respondent's motion, as the Jordan framework intended. Moreover, the first-trial delay did not exceed the applicable ceiling; the delay in a non-complex case was indeed unreasonably long, but this does not, by itself, mean that a failure to act expeditiously at the retrial stage was established.

[79] In the end, I am of the view that both the trial judge and the Court of Appeal erred in finding that the respondent's right to be tried within a reasonable time had been infringed.

VI. Disposition

[80] For these reasons, I would allow the appeal, set aside the stay of proceedings and remand the case to another judge of the Court of Québec for the continuation of the trial.

Dissenting Reasons

English version of the reasons delivered by

Côté J. —

I. Overview

[81] This appeal concerns the interaction between the culture shift introduced by this Court since R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the presumptive ceilings within which an accused must be brought to trial, and the situation — not contemplated by Jordan — in which a new trial is ordered. I must respectfully disagree with the conclusion reached by my colleague Wagner C.J.

[82] In rendering its decision in Jordan on July 8, 2016, this Court reaffirmed the fundamental right of accused persons to be tried within a reasonable time and thoroughly changed the manner in which delay is treated. A change of direction was required to counter the culture of complacency that had developed in the criminal justice system. The Jordan framework is now established and provides a reasonable and workable solution for all participants in the justice system.

[83] The corollary to this prospective framework is that it requires a certain level of proactivity from all participants in the justice system. An accused can be faulted for their inaction or lateness in taking action. Illegitimate conduct by an accused that is contrary to the values promoted by Jordan can deprive the accused of the remedy they seek.

[84] Of course, the Court's purpose in Jordan was not to provide second-rate justice to accused persons, but rather to ensure that their constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, is respected. Where the prosecution fails in its obligation to bring an accused to trial within a reasonable time, the accused must not be left without an effective remedy.

II. Analysis

[85] I will say from the outset that I agree with the main principles in the analysis of my colleague Wagner C.J., including the fact that in Jordan the Court did not discuss how the ceilings would apply in the context of a retrial and that it is not necessary to set new ceilings. I also accept that the delay clock resets to zero when a new trial is ordered. I agree with my colleague that delay cannot be waived by mere silence. I agree with him that the accused's conduct and lateness in taking action is an important factor, not only in the waiver analysis, but also in determining whether a remedy is warranted where the first-trial delay has exceeded the ceiling. I agree as well with the principle that retrials must be prioritized, and that if the retrial delay falls below the presumptive ceiling, both the shortness of that delay and whether there was prioritization are relevant contextual factors.

[86] Therefore, with great respect, I disagree with the result reached by my colleague, namely that the accused cannot obtain a stay of proceedings. I would dismiss the appeal and uphold the stay of proceedings entered by the trial judge (2019 QCCQ 1236) and upheld by the Court of Appeal (2020 QCCA 666).

[87] As my colleague aptly states at para. 68 of his reasons, the Jordan ceilings are merely presumptive. If they are exceeded, it is open to the prosecution to try to rebut the presumption and show that the delay is reasonable (Jordan, at paras. 68 et seq.). Conversely, the defence may attempt to show that the delay is unreasonable even where it is below the applicable presumptive ceiling (Jordan, at para. 48). The ceilings are not floors.

[88] This presumption of reasonableness may be rebutted through a contextual analysis of delay in which first-trial delay can be considered, as my colleague states (para. 73). In my view, this is one of the exceptional cases in which a stay of proceedings must be entered even though the accused did not raise the infringement of s. 11(b) until after a retrial was ordered.

[89] To begin with, silence alone cannot be held against the accused; he does not have to assert his right in order for it to exist (Chief Justice's reasons, at paras. 43-52). An accused may choose not to raise an infringement of s. 11(b) at a first trial and decide instead to tolerate the delay, hoping to be acquitted. This is precisely what happened here.

[90] Nor do I think that the accused can be faulted for not raising delay in the Court of Appeal, for two reasons. First, he was acquitted at trial. It was the Crown that appealed the case. What then could be reasonably expected of the accused? He had to fight to have the appeal dismissed and the acquittal upheld. It is difficult to see how the accused could be expected to address the issue of delay in the same proceeding.

[91] Second, choosing to raise the issue of delay after trial, in the alternative, would not have been a good defence strategy, especially since, as my colleague says"only exceptionally will an accused be able to raise this issue for the first time on appeal" (para. 37). In this regard, I agree with my colleague that in exceptional circumstances an accused may raise delay on appeal. However, the risk of raising this issue on appeal is significant. Only if the Court of Appeal had decided that the delay was unreasonable in the first trial and had nonetheless chosen not to exercise its discretion would the accused have been able to obtain a stay of proceedings on appeal. The accused would thus have assumed a double risk.

[92] As the intervener the Association québécoise des avocats et avocates de la défense quite rightly noted, faulting an accused for not raising such an issue on appeal, while at the same time suggesting that it is improper to do so, creates a no-win situation for the accused. Such a situation is, as it submitted, contrary to the very objective of Jordan (intervener's factum, at para. 23):

[translation] Appeal courts ordinarily find that new grounds of appeal may not be raised in the absence of a factual analysis or decision by a trial judge. Similarly, it would be unthinkable for an accused who is acquitted to be able to file a cross-appeal on an issue that has never been raised. At any rate, even if such an appeal were theoretically possible, it would make no sense from a strategic standpoint.

(I.F., at para. 23)

[93] It is therefore problematic to assert that the accused did not raise delay in a timely manner, given the fact that he was acquitted at trial and that he was, all things considered, restricted by law from raising it on appeal. At what point could he allege an infringement of his Charter right? According to my colleague's reasoning, the accused would have had to raise the issue of delay during his first trial even though he hoped to obtain an acquittal; otherwise, he loses the right to rely on the delay in his first trial.

[94] Accordingly, and with respect, the result reached by my colleague strikes me as harsh and seems to disregard a fundamental fact: the accused's first trial had been completed and judgment had been reserved by the time this Court rendered its decision in Jordan on July 8, 2016. In my view, the exceptional circumstances of this case can be considered in the contextual analysis of the reasonableness of retrial delay, specifically through the lens of the question of whether the case was prioritized.

[95] In reality, it has been more than 11 years since the respondent was charged, and his fate has still not been conclusively determined. Certain facts must be recalled. The delay from the first trial is 63 months and 8 days (1,924 days), only 1 day of which is attributable to the defence. A period of 62 months and 7 days of delay in a trial that was supposed to last 2 days speaks for itself. It took 62 months to complete a trial that was supposed to last 2 days. In addition, between May 16, 2016 (end of argument) and February 10, 2017 (verdict), a period of more than 8 months elapsed while judgment was being deliberated in a simple case. After the Court of Appeal set aside the acquittal on June 13, 2018, the parties agreed on dates for a 10-day retrial that was to take place from April 29 to May 31, 2019: nearly 11 months later. This sequence of facts warrants comment.

[96] The Crown's conduct following the order for a new trial warrants further comment. The delay between the order and the anticipated end date for the retrial, May 31, 2019, was 11 months. However, it was not until the accused filed his motion for a stay of proceedings that the prosecution, for the first time, moved up the retrial dates, to March 11 to April 18, 2019. In other words, the first step taken by the Crown in order to prioritize the retrial was to move up the dates only after the accused's motion. This is not acting proactively.

[97] Although the charges involved are serious, this is not a complex case with an abundance of evidence. While the accused made sure that he had all the evidence in his possession in order to avoid a possible postponement of the trial, in addition to accepting the first dates available, the prosecution did not take any proactive measures to expedite the proceedings. The prosecution's conduct is telling: it seems to assume that, once the Crown's appeal of the acquittal was allowed, the accused would have to wait 11 months for his retrial, even in a case that was supposed to be short and relatively simple.

[98] By the time a new trial was ordered on June 13, 2018, nearly two years had passed since Jordan. Not only was the Crown well aware of its obligations, but in addition, earlier dates were offered as soon as the motion for a stay of proceedings was served. Yet the retrial was treated [translation] "as a regular case" — to quote the Crown's own submissions at the hearing — when a priority system should have been in place from the start.

[99] It seems to me that such a situation corresponds perfectly to the circumstances referred to by my colleague at para. 73 of his reasons. The Crown failed to prioritize the accused's case. In this context, even a delay of 10 months and 5 days in a non-complex case like this one is sufficiently long to justify taking the first-trial delay into account through the contextual analysis of retrial delay.

[100] I cannot fault the accused for not acting proactively and filing a motion for a stay of proceedings before the end of his first trial. He had a right to have the trial completed and to obtain an acquittal. Fighting to secure an acquittal is a right, not a strategy. Nor can I bring myself to fault him for not acting in keeping with a culture shift that had not yet occurred at the time of the events. In fact, when argument in the first trial was completed on May 16, 2016, Jordan had not yet been decided. The decision was rendered nearly two months later, on July 8, 2016.

[101] At the risk of repeating myself, it took 62 months to complete a trial that was supposed to last 2 days. More than eight months were then needed to reach a verdict of acquittal. A new trial was subsequently ordered, on the application of the Crown, because of errors in the trial judgment. And now, after more than 11 years, we are being asked to send the respondent back to be tried again. Such a result troubles me deeply. Yet, if one applies the approach of my colleague, the accused would be sent back to trial.

[102] In my view, the accused is entitled to a stay of proceedings. He was a victim of the culture of complacency specifically addressed by Jordan. Given the uncertainty of the previous Morin framework, the fact that the accused did not move for a stay of proceedings cannot be held against him. He acted reasonably, tried to obtain an acquittal, got one, and then saw it set aside by the Court of Appeal. Between the charges in February 2011 and the filing of the motion for a stay of proceedings in December 2018, only a period of 39 days from the first trial can be attributed to him, in nearly 8 years of proceedings. In reality, the Crown failed to prioritize the accused's case and the system failed to try him in a diligent and reasonable manner. The presumption that the delay is reasonable is rebutted.

III. Conclusion

[103] I would dismiss the appeal and uphold the stay of proceedings.

Appeal allowed, Côté J. dissenting.

Solicitors

Solicitor for the appellant: Director of Criminal and Penal Prosecutions, Québec.

Solicitor for the respondent: Diego Gramajo avocat, Montréal.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Alberta: Justice and Solicitor General, Appeals, Education & Prosecution Policy Branch, Edmonton.

Solicitors for the intervener the Criminal Lawyers' Association of Ontario: Henein Hutchison, Toronto; Andrew Burgess, Toronto.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Marcoux Elayoubi Raymond, Longueuil.

Solicitors for the intervener Association des avocats de la défense de Montréal-Laval-Longueuil: Walid Hijazi, Montréal; Grey Casgrain, Montréal.

[^1]: The Court of Appeal arrived at a different total delay than the trial judge, because the judge had included the verdict deliberation time in her calculation. But as this Court stated in R. v. K.G.K., 2020 SCC 7, at paras. 3, 24 and 50, and as the Court of Appeal correctly pointed out, delay attributable to deliberation time falls outside the scope of the Jordan framework and must be excluded from the calculation.

[^2]: The presumptive ceiling applicable in this case is the 30-month ceiling, because a preliminary inquiry was held in the first trial.