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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Pilla, Andrew and Vandersteen, Levi.
"Re-Charting the Remedial Course for Section 11(b) Violations Post-Jordan."
Osgoode Hall Law Journal