The Supreme Court rules the delay for the retrial of a Quebec father charged with multiple sex offences was reasonable

NCA candidates preparing for their criminal law exams should be aware of an important update regarding a case listed on the NCA syllabus, specifically R. v. J.F. On May 6, 2022, the Supreme Court of Canada issued a ruling that pertains to R. v. Jordan.

In this case, J.F. faced charges in 2011 for seven counts of sexual offenses against his daughter in Quebec spanning from 1986 to 2001. His trial began in late 2013 before the Court of Québec following a preliminary inquiry.

During this time, in 2016, the Supreme Court of Canada delivered the R. v. Jordan decision, which set time limits between a person's charge and the completion of their trial. Following a preliminary inquiry, the trial in a provincial court, like the Court of Québec, should not exceed 30 months.

J.F.'s trial concluded in 2017, six years after he was charged, resulting in his acquittal. The Crown appealed the verdict to the Court of Appeal of Quebec, which ordered a new trial. Before the retrial started, J.F. urged the court to "stay" the proceedings, arguing that the excessive delays during both his initial trial and the period leading up to the retrial breached his right under the Canadian Charter of Rights and Freedoms (Charter) to "be tried within a reasonable time."

The retrial judge agreed with J.F.'s claim that his right to due process under section 11(b) of the Charter had been violated. Subsequently, the Crown appealed to the Quebec Court of Appeal, where the judges determined that each trial's delay should be assessed separately. They emphasized that the retrial delay would only be considered if the initial trial delay was justified. However, in J.F.'s case, the delay during his first trial was deemed excessive, leading the Court of Appeal to dismiss the Crown's appeal without factoring in the retrial delay. The Crown then appealed the matter to the Supreme Court of Canada.

The Supreme Court ruled in favor of the Crown.

The ruling clarified that only the delay during the retrial should be taken into account. Chief Justice Richard Wagner, representing the majority of the Supreme Court judges, emphasized that the Jordan judgment required both the Crown and defense counsel to act expeditiously, including the accused promptly raising any delay concerns. Therefore, an accused must raise the issue of delay before their trial in a single trial scenario, while on rare occasions, they may raise it during an appeal. However, once an appellate court orders a retrial, the issue of delay from the initial trial should not be raised.

The Chief Justice stated that after an appeal court has ordered a retrial, only the time spent waiting for the retrial is relevant, adhering to the same time limit established in Jordan. Exceptions for considering delays from the first trial are only allowed in exceptional circumstances.

In J.F.'s situation, he did not raise the issue of delay during or before his initial trial, nor did he mention it before the Court of Appeal in this instance. He only brought it up during his retrial. As a result, only the retrial delay, which amounted to 10 months and 5 days, was considered. This was well below the 30-month deadline established in Jordan, making it reasonable, and thus, the proceedings should not be stayed.