Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, May 6, 2022, the SCC is releasing its decision in R. v. J.F. At issue is whether the Jordan framework can be applied in a retrial for delay that was caused in the original trial and not challenged.

In February 2011, the respondent, J.F., was charged with several offences. While judgment was reserved, the Supreme Court rendered its decision in R. v. Jordan, 2016 SCC 27. Following the first trial, J.F. was acquitted in February 2017. The total delay between the charges and the verdict was 72 months and 2 days. In June 2018, the Quebec Court of Appeal ordered a new trial because of errors of law in the trial judgment. The delay between that order and the anticipated end of the new trial was 10 months and 5 days.

J.F. filed a motion for a stay of proceedings under s. 11(b) of the Charter in December 2018. The trial judge found that the delay for the first trial was unreasonable and that J.F. had never waived his right to be tried within a reasonable time. She granted the motion and ordered a stay of proceedings. In a unanimous judgment, the Court of Appeal upheld the trial judge’s order, but for reasons that differed from those of the trial judge.

I’m leaning towards appeal dismissed on the basis of the extreme amount of delay for the first trial (over 5 years). No matter how the framework is modified to apply in this situation, it seems difficult to reconcile it with permitting that much delay.

Last SCC Decision

  • On April 29, 2022, the Supreme Court of Canada released its decision in R. v. Dussault, 2022 SCC 16.
  • In a unanimous decision written by Justice Moldaver, the Court dismissed the appeal. It found that in the unique circumstances of the case, the police were required to provide the accused with a further opportunity to consult counsel before questioning him.
  • Police can typically discharge their duty by facilitating a single consultation at the time of detention or shortly thereafter. Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel.
  • But there are three exceptions: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient.
  • In this case, the third exception applied by virtue of the police unintentionally undermining the legal advice provided to the detainee.
  • 100% of players correctly predicted this one!

-Tom Slade