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Incorporating Jordan: Section 11(b) Unreasonable Delay Applications

In response to the  landmark decision in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [R v Jordan], the Alberta Court of Queen’s Bench recently released a Notice to the Profession and Public (NPP #2017-01, “Charter Applications in Criminal Cases Including Section 11(b) Unreasonable Delay Applications” (25 April 2017) [NPP #2017-01]) that details a procedural framework specific to unreasonable delay applications under s 11(b) of the Canadian Charter of Rights and Freedoms in criminal cases. The aim is to ensure that s 11(b) applications are scheduled and conducted in a fair and effective manner.

Presumptive Timelines and Requirements

NPP #2017-01 sets out a number of timelines and requirements for scheduling s 11(b) applications, the most salient of which include:

  • Where the defence intends to bring a s 11(b) application, the defence must do so at least 7 days before the pre-trial conference. The court has discretion to allow or direct this pre-trial conference be conducted by teleconference,
  • Section 11(b) applications must be scheduled to be heard at least 60 days before the first scheduled day of trial or, where pre-trial applications are scheduled to be heard separately in advance of the trial, at least 60 days before the first scheduled day of pre-trial applications,
  • Before filing a s 11(b) application, the applicant must apply for the appointment of a s 551.1(Criminal Code, RSC 1985, c C 46) Case Management Justice and a hearing date from the court, and
  • The applicant’s materials in a s 11(b) application must be filed a minimum of 21 days before the hearing and the respondent’s materials must be filed a minimum of 7 days before the hearing. Written briefs, not exceeding 20 pages in length, are required from each party.

The Bottom Line

Similar to the presumptive ceilings found in R v Jordan, all timelines and requirements put forth in NPP # 2017-01 are subject to any order made by a judge in a specific criminal case.

Counsel seeking to make a s 11(b) application in Alberta must be cognizant of the need to be proactive in order to meet prescribed timelines and requirements. A review of NPP #2017-01 with a careful eye towards the various deadlines is warranted.

More Information

Click here to access the NPP #2017-01. For the most recent Supreme Court decision on s 11(b), see R v Cody, 2017 SCC 31.