Everyone is constitutionally entitled to a trial within a “reasonable amount of time,” thanks to section 11(b) of the Canadian Charter of Rights and Freedoms. Prior to the 2016 Supreme Court of Canada decision Jordan, courts would decide on a case-by-case basis whether the amount of time had passed the “reasonable” threshold. The remedy for a file taking too long is a stay of proceedings – the charge is effectively withdrawn, as our constitutional rights must be respected.

In 2016 the Supreme Court of Canada came to the conclusion that the case-by-case approach was not working; the approach too confusing, unpredictable, and complex. Instead, the Supreme Court created presumptive ceilings to be applied to the definition of “reasonable amount of time.” For a file at the Ontario Court, the presumptive ceiling is 18 months. For a file at the Superiour Court of Justice, the presumptive ceiling is 30 months. Once the presumptive ceiling is reached, counsel will prepare what is now commonly called a “Jordan application” – a review of the entire timeline of the file, and the source of any delays (as some delays count towards the ceiling, while others do not).


That was the question raised in the case of R v. K.J.M 2019 SCC 53.

K.J.M was charged with numerous offences in 2015 in relation to a fight in which he was alleged to have stabbed another youth. K.J.M plead not guilty, arguing that he was acting in self-defence. At the time of the fight, K.J.M was under 18 years of age. K.J.M’s trial took place 19 months after his arrest, and it was during his trial that the Supreme Court of Canada released the Jordan decision.

K.J.M appealed his conviction, arguing firstly that the file had exceeded the presumptive ceiling of 18 months, and secondly, he argued that youths should be entitled to a lower presumptive ceiling than that set out in Jordan – less than 18 months. The Court of Appeal did not agree that the Jordan threshold had been met, and, as that took care of the appeal, they declined to answer whether youths should be entitled to a presumptive ceiling lower than the Jordan ceiling. That question would be answered by the Supreme Court.

There is certainly merit to K.J.M’s argument – youths charged with criminal offences are already dealt with in a unique way, with distinct procedural and sentencing regimes set out in the Youth Criminal Justice Act. Procedural expediency is arguably even more essential for youths than adults.

Justice Moldaver, writing for the majority, clearly appreciates the need to prioritize youth files. Young accused, Justice Moldaver argued, have less-developed capacity for memory, cognition of long-term cause and effect, and perception of time. Timely disposition of youth files will cause important consequences, such as reinforcing the connections between conduct and consequences, reducing the psychological impact of trial delays on young people, preserving the young person’s right to make a full answer and defence, and generally avoiding potential unfairness.

Nevertheless, Justice Moldaver was unwilling to create a lower ceiling for youths, holding that the current framework for unreasonable delay adequately accounts for the wide range of fact scenarios and characteristics of accused persons, including youths. In refusing to create a distinct Jordan ceiling for youths, Justice Moldaver also noted there is no evidence that trial delays were a general concern in youth courts. Additionally, despite the Jordan ceilings, courts retain discretion to find that time delays were unreasonable, even if the delay falls short of the Jordan ceiling.

Justices Abella, Brown, and Martin did not share this view, however. They argued that the distinct treatment of youth files, under the YCJA, should be mirrored in the context of unreasonable delay. They argued for a 15-month presumptive ceiling, three months shorter than the current 18-month ceiling.

When our highest court is in disagreement over a legal issue that affects Canadian society at large, we can hope that the issue will be revisited in the future.

The team at DeMelo Law looks forward to assisting you with your criminal files, whether you are a youth or adult.