The right to be tried within a reasonable time is a constitutional guarantee under Section 11(b) of the Charter. But what happens when the clock is ticking and a case involves multiple defendants, complex evidence, and scheduling nightmares?
The recent British Columbia Court of Appeal decision in R. v. Cade 2026 BCCA 106 provides an analysis of how courts must calculate delay and why the Crown cannot simply point to complexity to justify a breach.
The Trial Judge’s Ruling
Mr. Cade was charged in 2020 with three counts of possession for the purpose of trafficking. By the time his trial was set to finish in 2023, the total delay was approximately one month and five days over the 30-month presumptive ceiling established by the Supreme Court in R. v. Jordan.
The trial judge, however, dismissed Cade’s application for a stay of proceedings. He found 37 days of defence delay, which brought the net time down to 29 months and 26 days… just four days shy of the limit. Funny how that accounting amounted to such a close call.
The judge attributed this delay to initial procedural steps. 22 days were spent sorting out differing elections and arraignments among the three co-accused. There were also 15 days of delay attributed to defence scheduling conflicts, because defence counsel were unavailable for a pre-trial conference on dates the Crown offered.
Alternatively, the trial judge ruled that even if the ceiling were exceeded, the complexity of a multi-accused trial and the impact of the COVID-19 pandemic constituted exceptional circumstances that justified the wait.
Why the Trial Judge Was Wrong
The Court of Appeal overturned the conviction, finding that the trial judge made errors of law in allocating the delay.
Importantly the court ruled that procedural steps are not defence delay.
The most significant error was categorizing the first 22 days as defence delay. Under the Jordan framework, defence delay must be caused solely by the conduct of the accused. In this case, the time was spent on the plain reality of coordinating elections and pleas for three different people. The Court of Appeal clarified that this is an inherent time requirement of any multi-accused case and should not be subtracted from the total time.
The Court also rejected the alternative finding that complexity saved the case. While coordinating five different calendars (three defence, one Crown, one Court) is difficult, the Crown has a mandatory duty to mitigate delay.
The Court of Appeal noted that by early 2022, it was clear the case was at risk of breaching the Jordan ceiling.
Despite this looming problem, the Crown took no proactive steps. They did not raise the delay issue with the assigned judge or try to preserve earlier dates for hearings. Nor did they seek admissions to shorten the trial or accommodate witness availability.
Because the judge failed to consider whether the Crown had actually tried to minimize the delay, his conclusion on complexity was an error in principle.
By correcting the legal errors, the Court of Appeal found that the total delay clearly exceeded the 30-month limit. The Crown failed to prove they had made reasonable efforts to stay within that timeframe.
As a result, the appeal was allowed, the conviction was set aside, and a stay of proceedings was entered. This case serves as a powerful reminder that the burden is on the Crown to manage complex cases proactively. Complexity is not a blanket excuse for delay.
