Three months after the Supreme Court in R. v. Jordan rewrote the analytical framework by which claims of unreasonable trial delay are to be tested, the Ontario Court of Appeal has applied the new test as have a number of lower courts throughout the criminal justice system. These decisions have all involved individual defendants.

Not yet, but inevitably, a corporate defendant will have the opportunity to argue that Jordan means that corporations have greater access to the protection under s.11(b) of the Charter.

Since 1992 and the release of Supreme Court’s decision in R. v. C.I.P.., it has been extremely difficult for corporations to obtain the stay of criminal or regulatory prosecutions on the basis of unreasonable trial delay. C.I.P. made two key findings in relation to corporate defendants:

First, it decided that corporations, as artificial entities, could not suffer prejudice like individuals to the liberty and security of the person interests protected by the Charter. Instead, corporations were entitled to 11(b) protection only to the extent that it protects defendants from the prejudice caused by trial delay to the fair trial interest; that is, the prejudice caused by the ageing of recollections etc.

Second, unlike the situation with the liberty and security of the person interests where delay could be presumed prejudicial by the passage of time, a corporate defendant was required to prove actual prejudice to its fair trial interest – an extremely high bar. In the result, very few corporate defendants succeeded in establishing the breach of their limited s.11(b) right.

Although the Court in Jordan does not consider let alone mention C.I.P., its re-consideration of how prejudice to the s.11(b) right is to be treated puts into serious question C.I.P.’s future applicability. In sum, Jordan found that prejudice to all the three interests protected by s.11(b) (liberty, security of the person and trial fairness) is to be presumed once the ceilings of 18 (in provincial court) and 30 months (in Superior Court), whatever the case may be, are exceeded. The presumption is not rebuttable. Unless the Crown can establish that exceptional circumstances (which have nothing to do with prejudice) caused the delay to exceed the relevant ceiling, the prosecution must be stayed.

The defendant in Jordan was an individual. But there is nothing in the decision that would suggest let alone hint that the new framework should be different in cases involving corporate defendants. It can only be a matter of time before a corporate defendant brings the issue forward.